mm^mrnhMm Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024701538 KFO 520^97" 1880"''' '■'''"'^ ^''nSmm°R iftS,, .te„.?,rMna.. before justi 3 1924 024 701 538 CJnrnell ICaui ^rlynnl Slibraty TREATISE LAW AKISIHQ BEFOSB JUSTICES OF THE PEACE BUSINESS TRANSACTIONS AS ADMINISTERED IS COUETS OP EECOED IN OHIO, AND UN DEE THE EE VISED STATUTES OE 1880 With Practical Forms BY JOSEPH R. SWAN mimntfi mamon CINCINNATI EGBERT CLARKE & CO 1880 OOPTEIGHT, 1880, JOSEPH B. SWAN. PREFACE TO THE ELEVENTH EDITION. The last (10th) edition of this work has become, under the Revised Statutes of 1880, a treatise on repealed laws ; and its reader is left to conjecture which of these repealed laws have been altered, dropped from the revision, or re-enacted. It has thus become, without fault of the author, unreliable. In 1877, after the Codifying Commission had been employed about two years upon the old laws, it became evident that the changes, if adopted, would render the last edition of this treatise quite useless for the practical purposes intended ; and, since that time, the author has kept pace with their labors, and the decisions of the Supreme Court, coming within the s-jpe of this volume; and, being furnished with the advance sheets of the Revised Statutes, as printed, has incorporated into the text of this edition the material changes, additions, and re-enactments now in force. Since the 10th edition was published, ten volumes of the Ohio State Reports have been issued. These, down to the 34th volume inclusive (January, 1880), are referred to, and the text added to or modified to conform to them. Eorms, among others, of affidavits, process, and docket en- tries, have been added under the new provisions of the stat- utes. The numerous references to the numbers of the sections of the Revised Statutes, cited at the foot of the pages as author- ity for what is contained in the text, will affiard the reader an easy mode of finding the corresponding subject in the new volumes of the statutes, instead of hunting for it through the (iii) IV PREFACE. necessarily voluminous index in the second volume of that work. Care has been taken to make these foot references accurate. A book treating of the law applicable to most kinds of business'transactions — law that is daily discussed in courts be- cause subject to new and modified application in the ever changing incidents of business — must, if used at all, pass through a very searching ordeal. All that the author can hope is, that mistakes in the text may not be so numerous as to discredit its general correctness ; and, in this hope, com- mends to the ever indulgent judgment of his professional brethren, who may occasionally consult its pages, this, in all human probability, the last of his publications. J. R. Swan. Columbus, February 6, 1880. CONTENTS. PART I. Chapter 1. — The OmoE of Justice— Election Bond, etc.... 1 Sec. 1. Number of justices in each township 1 2. "Who is eligible 2 8. When and how elected — 2 4. How their election contested »• 8 5. Term of ofSce ~ ^ 6. Their official oath, bond, and form ~ 5 7. Additional bond and new bond 7 8. Liability on the official bond and personally 8 9. Eesignation, and when the office deemed vacant 10 Chap. II. — Jurisdiction in Civil Actions 12 Sec. 1. Its limit generally 12 2. In what cases co-extensive with the county.. ». 12 8. Limitation of jurisdiction as to amount in controversy 14 4. Actions against railroad companies 10 5. In what cases justices have no jurisdiction 17 6. Jurisdiction of Justice as chancellor — the code 19 7. Consequences of proceeding in cases in which he has no jurisdiction. 20 8. Mayors 21 Chap. III. — Securitt for Costs in Civil Actions 22 Skc. 1. In what cases required before action 22 2. Form of undertaking for costs in such case 22 3. When required after action brought, and form of undertaking 23 4. Action on the undertaking 23 Qhap. IV. — Of the Action, and Joinder of Causes of Action. 25 {3ec. 1. Naming the action 25 2. Joinder of different causes of action in one action 2S (V) VI CONTENTS. Chap. V. — Bills op Particulars op the Parties 28 Sec. 1. In what cases to be filed 28 2. When to be filed ; 28 8. Efiect of not filing a bill of particulars 29 4. Eequisites of a bill of particulars, and what may be proved under it. 29 6. Docketing bills of particulars 80 6. Amendment of bill, and terms of amendment „ 80 7. Form of bill of particulars 30 8. Counter-claim and form of bill of particulars thereof. 31 9. Costs in action omitted in the bill 33 Chap. FT.— Filing Proofs op Indebtedness, and iNooRsiNa SAME 34 Chap. TIL — Parties to Actions 35 iSko. 1. Who must be plaintiff's „ - 35 2. Who must be defendants 39 8. Of the consequences of an omission or mistake in making parties plaintiff or defendant; and of mistakes in their names 40 4. Of the consequences of the decease, etc., of parties, or the assign- ment of the claim, while a suit is pending.i.......n » 42 Chap. Till. — Peocess, AND Blanks therein. 44 Chap. IX. — Op the Commencement op an Action 45 Sbc. 1. How in general commenced 45 2. In what cases the summons may issue against a nonresident of the township or county 46 8. Bequisites and form of summons, and indorsem'ents thereon 47 1. Description of the writ, 47 2. When returnable , „ 48 3. Form of summons-,...... 48 4. How parties described in summons 49 5. Statement of cause of action in summons 52 6. Form of indorsement on summons 55 4. Of the service and return of the summons 55 6. Forms of returns to summons 57 CONTENTS. Vll Ckap. jT. — Order of Arrest before Judgment 60 Sec. 1. The order 61 1. What 61 2. Its requisites , 61 2. "Who are privileged from arrest 61 1. Females 61 2. Officers and soldiers of the revolution 61 8. Military and militia, etc 61 4. Members of Congress 62 5. Members and officers of the General Assembly 62 6. Ambassadors and their servants, etc 62 7. Judges, officers, suitors, etc., of courts 62 8. Voters at elections 63 9. Israelites, etc 63 10. Insolvents 63 11. Executors, administrators, officers, and corporations 64 8. Por what frauds an order of arrest may be issued 64 4. The affidavit for an order 65 1. How entitled 65 2. Statement of the cause of action in the affidavit 65 3. Statement of the fraud in the affidavit 67 5. Forms of affidavit ; 68 1. The commencement 68 2. The nature of the claim or cause of action 68 3. The particular or fraud 75 6. The undertaking before order issued, and form thereof. 77 7. Issuing, and form of order of arrest '. 78 8. The arrest 79 1. By whom 79 2. When 79 3. Where 79 4. How made, and how order executed 82 6. Arrest of wrong person 84 9. Forma of returns 84 Ghap. XI. — Proceedings after Summons Served 85 Sec. 1. Dismissal of the case by the plaintiff. „ 85 2. Doclwt entries preliminary to trial 60 3 When the trial in general to take place 80 4. Adjournment by justice without the consent of parties 87 ' 1. When not exceeding forty-eight hours 87 2. When not exceeding eightdays 87 Vm CONTENTS. Pkooeedings aftbk StTMMOirs Sbevbd — Continued. 6. Adjournment on the application of a party 87 1. When not exceeding thirty days, and form of affidavit. 87 2. "When not exceeding ninety days from the time of re- turn of summons, and form of affidavit 88 6. Change of the place of trial, with form of affidavit and docket entries 90 7. Issuing, form, service, and return of suhpenafor witnesses, and war- rant, etc., for non-attendance 92 8. Issuing, form, service, and return of jury process, and warrant for non-attendance 96 9.- Proceedings before trial, on trial day, when there is no order of ar- rest issued 98 1. If the plaintiff fails to appear 98 2. If the defendant fails to appear, and setting aside judg- ment in such case 98 3. If hoth parties fail to appear IOC 4. How to proceed if justice fails to attend, or is sick, etc.. 101 Chap. .ZJ7— Proceedings after Order of Arrest, and be- fore Trial 102 Chap. JTiZZ"— Depositions 106 Sbc. 1. "When depositions may be used 106 2. When parties may commence taking depositions in an action 107 3. By and before whom depositions may be taken 107 4. Of the notice, its service, etc 108 5. The suhpena, its service and return 109 6. Proceedings against witness for disobeying subpena, with forms... 110 7. Proceedings against a witness for refusing to be sworn, or to tes- tify or to sign a deposition, with forms 114 8. Form of oath or affirmation of a witness 116 9. Form of depositions, and mode of taking them 116 10. In what cases official character of officer proved 119 11. How sealed up, addressed, and transmitted 119 12. Fees for taking depositions 120 13. Filing depositions 121 14. Opening depositions. 121 15. Exceptions to depositions 121 16. Objections to depositions on the trial „ 123 CONTENTS. IX C7iap. jOF.— Evidence 124 Seo. 1. Competency of witnesses 125 2 The manner of examining witnesses 180 1. Separate examination 130 2. The direct examination 130 8. Leading questions 130 4. "Witness' belief — opinion — refreshing his memory — ex- perts 181 6. Cross-examination 133 6. Eelevancy of testimony 134 7. Questions which a witness may refuse to answer 135 8. Impeachment of the credit of a witness 135 8. The burden of proof.". 138 4. Presumptive evidence 138 1. Definition and general rules 138 2. Of ownership of property.... 139 3. Of payment 139 4. That letters were received by mail , 141 5. Of the death of aperson 141 6. That a person is an officer 141 6. Of the best evidence 142 1. General rules 142 2. Exceptions 143 6. Documentary and ether written evidence 144 1. Laws 144 2. Judicial records and transcripts 145 3. Official registers and public documents 148 4. Copies of public and private documents, writings, etc., which are made evidence by Ohio statutes 149 5. Of the proof of the execution of written instruments of a private nature 152 6. Who to pay expense of proof of documents, etc., if not admitted to be genuine 154 7. How inspection of copies of books, papers, etc., obtained from a party, and forms of order, notice, etc 155 7. Parol or verbal evidence to affect that which is written 156 1. General rules 15g 2. Technical terms, etc 159 3. Other instruments executed at the same time 160 4. Parol proof of qualities, condition, and extrinsic circum- stances 160 5. When void for uncertainty 162 6. Parol proof that the written instrument was discharged, or verbal agreement substituted, etc 103 7. Parol proof to explain receipts , 164 CONTENTS. E vxDErTCB — Continued. 8. HeaTsay 164 1. General rule IQi. 2. Proof of what was said when act was done 164 3. Proof of state of mind 165 4. Proof of public rumor, etc 165 5. Proof of pedigree 166 6. Proof of decease or birth 166 7. Entries in books of third persons 166 8. Dying declarations 167 9. Testimony of deceased witnesses 168 9. Admissions 168 1. General rules 168 2. Kecitals in deeds, etc 170 3. Admissions by assignor of claim, or vendor of goods, etc 170 4. Admissions by an agent 171 5. Admissions by the wife 171 6. Admissions or conduct upon which third persons have acted 171 7. Implied admission from silence 174 8. Admission to obtain a compromise..... 175 9. Admissions by a person charged with a crime 175 10. How admissions construed 176 Chap. XY. — The Trial by Jury and its Incidents 177 Bbo. 1. Challenging, impaneling, and swearing the jury, 17T 1. Talesmen 178 2. Challenge of jurors 178 3. Form of oath to jury and to witnesses 179 2. Conduct of trial before a jury 181 3. The verdict and its form 182 4. Proceedings when the jury can not agree 184 6. "Withdrawing a juror 184 6. Voluntary dismission of the action by the plaintiff. 184 7. Payment of jury fee ; entry of verdict, and judgment thereon 185 «. New trial 186 'fl. Bills of exception 186 1. In what cases allowed 186 2. For what a bill of exception may be taken..; 187 3. "When exceptions to be taken 187 4. General requisites of bill of exception 188 5. Forms of bills of exception 190 •C. Docket entry of bill of exception 192 CONTENTS. XI Chap. XFJ-^Trial by the Justice / 193 Chap. ^FJi— Trial by Eeferees or Arbitrators 195 Sec. 1. When, and how a cause pending, etc., may te referred to arbitrators, with forms, etc 105 2. How award in such case may be set aside, or appeal taken , 103 Chap. ^ VIII. — Judgments AND Files...., 200 Sko. 1. "When to be entered; and docket entry when an order of arrest has been issued 200 2. The different kinds of judgments, etc 201 3. Judgment on the merits, and its effect 201 4. Certiflcale when one or more defendsCnts are sureties » 203 5. Indorsement of justice upon written instruments upon which judg- ment is entered, and its effect 204 6. Judgment by confession 204 7. New parties to judgment 204' Chap. XIX. — The Docket and Docket Entries 206 Sec. 1. The docket and entries therein 206 2. IForms of docket entries 209 1. When the action is on an account — an adjournment — subpena for witnesses — atrial by the justice — judg- ment for the plaintiff. 209 2, "When the action is on a note — the plaintiff's partners — summons and order of arrest — adjournment — jury demanded — defendant discharged on undertaking — ^bill of particulars of set-off beyond the juris- diction of a justice — jury trial — ^bills of exception on trial — ^verdict on both bills of particulars — Terdict and judgment for defendant „. 210 8. Judgment of dismission without prejudice to a new action ^ 214 4. Judgment of dismission when there , is a set-off or counter-claim 215 6. Judgment of non-suit 216 6. Trial and judgment on the merits against the plaintiff.. 216 7. Judgment by confession 217 8. Entry of action for trial without a summons 219 9. Action by an executor against an administrator 219 • 10. Docket entries after judgment 220 8. Punishment for altering, etc., docket and files 222 4. Disposition of docket, etc., upon tie expiration of a justice's term of office; proceedings thereon by successor, etc ~ 222 Xll CONTENTS. Chap. XX. — Fees and Costs 224 Sec. 1. Items of fees of justice 224 1. For issuing writs 224 2. For entries on the docket 225 3. For certificates, copies, and oaths 225 4. Miscellanies 225 2. Items of the fees of constahles, etc 226 8. Fees of jurors and arbitrators «... 227 4. Fees of witnesses 228 5. Other costs in an action 228 6. How the costs in civil suits and proceedings should be made out and stated 229 7. "Who to pay costs , 230 8. How costs in civil suits and proceedings may be recovered by par- ities and others 231 9. By whom costs in criminal cases paid, and how collected; extra al- lowances '. 233 10. Items of costs to be furnished; punishment, etc., for charging more than the law allows 235 Ghap. XXI. — Appeal 237 Sec. 1. In what cases an appeal Is allowed, and when not ; and who to pay costs on appeal ; 237 2. Within what time an undertaking to be entered into, and its requi- sites and form 238 3. How appeal perfected, etc 240 4. Proceedings if the appeal is not entered, or is quashed, or is dis- missed „ 242 6. Action on the appeal undertaking 242 Chap. XXII. — Petition in Brbor. 244 Chap. XXIII. — Arrest after Judgment 247 Sisc. 1. Execution with clause for arrest, when the defendant is in custody before judgment... 247 2. Proceedings to obtain an order of arrest after judgment, with forms.. 248 3. The service and return of an order of arrest issued after judgment. 250 4. Escape and recapture 253 6. Forms of returns 954 CONTENTS. Chap. XXIV. — Op the Stat of Execution 257 EC. 1. In what cases no stay of execution is allowed 257 2. For what periods a stay may be obtained 258 3. When stay to be obtained, and form of undertaking therefor ,.. 258 4. When justice must issue execution 259 6. Issuing of execution, notwithstanding stay, and forms In such case. 259 6. Proceedings against surety for stay, and his rights 262 7. Bights and remedies, as between surety for stay and a judgment debtor who is a surety 263 Chap. XXF— Executions 266 BO. 1. When an execution may be issued 267 2. The different kinds, and the general requisities, of executions 268 3. Forms of executions 270 4. What personal property is exempt from execution 274 5. The duty of the officer to search for goods and make levy 278 6. What kinds of personal property may be taken on execution 279 7. Breaking doors, etc., to execute the writ 285 8. What constitutes a levy ; excessive levy 286 9. Effect of a levy, and responsibility of the officer for the goods be- fore sale 287 10. Proceedings and rights when there are two or more executions against the judgment debtor 290 11. Eedelivery bond, its form, and its effect 291 12. Discharge of the levy before sale 293 18. Trial of right of property taken on execution or attachment, by a constable, with forms. 294 •14. Eights and remedies of officers and co-sureties when property not belonging to the judgment debtor has been sold on the execu- tion 299 15. Effect upon the execution of the death of either party 301 16. Advertisement and sale of property .'. 301 17. The title which is acquired by a constable's sale... 304 18. Of the returns of executions, arid .the forms thereof. 304 19. Execution from common pleas on judgment of justices 310 20. Justices and constables' duties and responsibilities as to money col- lected 311 21. Executions on judgments of another justice 313 XIV CONTENTS. Chap. XXYl. — Transcripts — Actions thereon and on Dor- mant Judgments 314 Sec. 1. Transcripts 314 2. Actions on transcripts 814 3. Judgment dormant on account of no execution having issued 315 4. Judgment dormant on account of decease of parties „ 317 Chap. XXVII. — Unclaimed Moneys in the hands oi" A Justice 319 Chap. XXTin. — Accord and Satisfaction — Compromise.... 323 Sho. l."~What it is 323 2. The consideration for the accord 323 8. The accord must, in general, be executed , 824 4. Compromise by or with partners, joint debtors, etc 825 Chap. JTZIZ:— Account Book 326 Sbo. 1. In what cases an account book is admissible in evidence 326 2. What is an account book, and when the charges should be made... 327 8. What are proper subjects of charge in an account-book 329 4. Ledger 329 5. Settlement 830 Chap. XXX. — ^Acknowledgment of Instruments affecting Eeal Estate 331 Chap. XXXI. — Administrators and Executors 333 SbO. 1. Appointment of appraisers 333 2. Affidavit to authenticate a claim 834 8. Action by an^ against, appeal, and arbitration of claims. „ 335 CONTENTS. XV Chap. XXXIl. — Agents and Pbinoipals 33T Sec. 1. Definitions 83T 2. The authority; its extent 338 8. 'Wrongful acts, defaults, and negligence of officers, agents, and servants 345- 4. Liability of an agent to third persons 85& 6. The rights and obligations of principal and agent as to each other. 858 6. Notice to an agent 360 7. Bevocation of authority 361 Ghaf. JrjrXZZ"/.— Animals 363 Sec. 1. Wild animals 363 2. Dogs 364 8. As to other animals and fencing , 865 4. As to animals injured on a railroad 370> Gha'p. JLT^/F.— Apprentices 376; Sec. 1. "Who may he bound out to service, and for what time 378' 2. Who may bind out infants 376' 3. What statements and covenants an indenture of apprenticeship must contain, and how executed 377 4. When the indenture must be recorded, and the effect of not record- ing 379 5. Of the dissolution of the apprenticeship 379- 6. Of the rights of the apprentice 380- 7. Of the rights of the master 382 8. Of enticing away, employing, or harboring an apprentice, etc 883 Chap. XXXY. — Arbitration and Award 385 Sec. 1. Definitions 385- 2. Arbitration 385 8. The force and'efiect of an award as an instrument of evidence 386 1. General requisites of an award to render it valid 386 2. When an award is void „ 386< 3. The effect of an award when valid „ „. 38& XVI CONTENTS. Chap. iOTJr FZ^AssiGNMENT of Claims and Leases 391 :Sbc. 1. Definitions ~ 891 2. The negotiability of things in action _ 391 8 How things in action may he assigned 892 4. The rights of the asssgnee, and of the debtor 398 5. The rights of the assignee against the assignor - 395 6. Eights of assignee of a debt to the mortgage securities 397 7. Assignment of a lease 398 Chap. ^XZFI/.— Attachment; 402 Seo !■ When and for what causes an attachment may issue „ 403 2. The form of the affidavit 405 3. The undertaking to obtain the attachment, its form, and actions thereon » ~ ~ 406 4. The order of attachment, its requisites and form 408 ■6. The service and return of the attachment _ 409 1. How property attached, and the inventory and appraise- ment 409 2. Redelivery undertaking, and its form and effect 411 •6. Motion to discharge attachment „ 412 7. Service of summons in the action, and publication and proceed- ings if not served, with forms _ 415 5. Proceedings, rights, service, etc., when two or more orders of at- tachment are issued 417 9. Undertaking to discharge the property attached; its form, and remedies thereon 418 10. The trial of claimant's right to property attached 420 ;11. Trial, judgment, and appeal _ 420 12. Order of sale 422 13. Sale and distribution 423 14. Proceedings against a garnishee „. 424 1. The affidavit 424 2. Service of process on the garnishee 424 8. His appearance and examination 425 4. How garnishee discharged _ 426 6, Liabilities of garnishee, and proceedings against biTn^ after examination, or if he fails to appear and answer 426 15. The return to an order of attachment, and against garnishee, etc... 430 16. Proceedings when there are lands 432 17. Porm of docket entries „ ,....„ 432 18. Action and attachment before a claim is due »...._..' 435 CONTENTS. XVif Chap. ZXJTF///.— Bailment 437 3. 1. Definitions 438 2. Where goods are deposited to be kept without reward, and to be re- turned when the bailor shall require it 439 8 Where a person delivers goods to anpther to be carried without re- ward, or to have some act performed about them without re- ward 441 4. Where a person borrows an article to be used for a limited time without paying for the use 442 6. Where goods are delivered by a debtor to his creditor, to be kept as a security for a debt or any engagement 448 6. Where goods, animals, or other things are delivered to a person to use for a temporary period, and for which use he is to pay a compensation .) 445 7. Where articles are delivered to a person that he may, for compen- sation, bestow work and labor or care upon them..'. 448 €. Of the rights, duties, and liabilities of the carriers of goods for hire. 449 1. Who is not a common carrier, and the liability of a private carrier 449 2. Who is a common carrier 450 8. What are his duties 451 4. What are the risks for which he is liable 451 5. When his risks commence and terminate 454 6. Of the eflfect of notices given by common carriers, and special contracts limiting their liability 458 7. Of the lien of a carrier for freight _ 459 8. How the value of lost goods is estimated „ 460 9. Bill of lading and its assignment, etc » 461 10. Warehousemen , _ 465 11. Of the rights, duties, and liabilities of the carriers of passengers... 471 1., Their duties and liabilities 471 2. The rights of passenger carriers 475 8. Passenger and carrier vessels > 476 12. Of the rights, duties, and liabilities of innkeepers , 477 13. Telegraph companies 481 Chap. XTXIX— Banks and Banke&s 483 Cfta;?; JTi.— Bastardy...^ '. 485 €ec. 1. The nature of the proceeding 485 2. The complaint on oath, warrant, and its service ~ 486 8. Continuance and proceeding thereon, with forms 487 4. The examination of the complaint, with form .. 483 XVUl CONTENTS. Bastardy — Continued. 5. Compromise 489- 6. Proceedings if there be no compromise, with forms 489* 7. Piling transcript in the court of common pleas 491 8. Proceedings when the accused is not arrested - 491 9. Proceedings by the trustees of the township or infirmary directors.. 491 10. Forms of docket entries 492 Chap. XLI. — Constables 495 Sec. 1. The office of constable — official bond — vacancy, how filled „ 495 2. Appointment of constable by a justice of the peace 496 8. The general powers and duties of constables 498 4. Actions against constables for misconduct, etc 500 5. Bights of sureties of constable or marshal 603 Chap. XLU. — Contempts 505^ Ssc. 1. Por what causes proceedings may be instituted 505 2. The warrant, conviction, and docket entries...; 505- Chap. XLIIl. — Contracts Gtenerallt 508 Sec. 1. Definition — contracts by parol — specialties — executed — executory — express — implied — 508 2. Of want of understanding to make a contract 510 3. Of restraint by imprisonment 511 4. Of restraint by threats 511 5. Of the consideration of a contract 512 6. Of an illegal consideration _ 516- 7. Construction of contracts • 520 8. Performance 523 9. Damages 524 10. Of the alteration of contracts 52S 11. Of contracts not to be performed within one year. >.... 528 12. Stamps 529 Ghap.JLLIV. — Cdeonee's Inquest 53a CONTENTS. XIX- Chap. XL F.— Elections 536 ;Sbc. 1. Of the mude of contesting elections, and forms therefor 536 2. Of opening and certifying the returns of an election — tie vote 538 8. Form of oath to be administered to the clerk and judges of an elec- tion 539 Ohap. XLYI. — PoEciBLE Entry and Detention 540 £ec. 1. In what cases the action may be brought 640 2. Within what time to be brought 541 8. When to be brought 542 4. The notice to leave the premises, and its form and service 542- 5. The written complaint of the plaintiff, with forms 542 6. Issuing, service, and return of the summons 546 7. Proceedings after process issued 546 1. The return of summons 546 2. Adjournment of action, and undertaking 547 8. Of the evidence, etc., when the suit is against a tenant for holding over his term 547 9. Evidence, etc., when the plaintiff claims, as purchaser under an exe- cution 548 10. Evidence, etc., when the plaintiff claims as purchaser from an ex- ecutor, administrator, or guardian, or on sale in partition 549 11. Evidence, etc., when the defendant is a settler or occupier without any color of title 550 12. The trial by the justice 551 13. The trial by a juror, verdicts, exceptions, etc 552 14. The writ of restitution, its service, and return 554 16. Docket entry 65(» Ghap. JCiF/J.— Frauds 557 fiEC. 1. When a suit may be maintained for the assertion of a falsehood.... 557 2. Who of two innocent persons must bear the loss 659 8. Of sales, etc., made by debtors to defraud creditors 560 Chap. XLYIII. — Guarantors and Sureties 565 jSbc. 1. Dcinitions 565 2. Of the manner in which sureties and guarantors may contract 566 8. Wliat promises come within the statute, and must be in writing, and what do not 566 4. Of the consideration' of the promise of the surety. _ 569 XX • CONTENTS. GuAKANTOKS AND SiTEi!Tij;s — Continued. 5. What is a auffloient agreement in writing under the statute 571' 6. Of the extent of the contract of surety 571 7. How the surety may be discharged hy the act of the creditors 579'' 8. Of the right and remedy of the surety against his principal...., 58S 9. Of the contribution between co-sureties, and their remedies against each other 585 Chap. XLIX. — Guardian and Ward 587 Ghaf.L. — Husband and Wife 589> Beo. 1. Of the right of the wife to the property SB* 1. As to the real estate of the wife , 589 2. As to leases and the like belonging to the wife 590 3. As to personal property and debts due the wife 591 2. Liability of her property and her husbands to satisfy her contracts, torts, etc 592 1. As to the contracts, etc., of the wife ; 592 8. When he is liable for necessaries furnished to her, and when not.... 592 1. As to crimes and injuries committed by her 594 4. Of the power of the wife to act without her husband 595 5. Incompetency of the husband and wife as witnesses 596 6. Of actions brought by and against the husband and wife; and herein 597' 1. When the husband must sue alone 597 2. When the husband must join, and when the wife may sue alone 597 Chap. LI. — Infants 600 Sko, 1. Who are infants 600 2. Of the liability of an infant for necessaries 600 3. As to other contracts by an infant 601 4. Of the confirmation of a contract by an infant after he arrives at full age 603 5. Of the liability of a person who contracts with an infant 603 6. How infants should sue and be sued 60S Chap. Lll. — Interest and Uscrt 605- Sko. 1. Of the rate of Interest, and the construction of the statute in rela- tion thereto ■ 605» CONTENTS. XXi Intbebst and TJstjet- 2. Of the mode of computing interest 608 1. "Where payment is made before the deht is due 608 2. Where payments exceeding the interest are made after the debt is due 609' 8. Where the payment is less than the interest due 609 8, Where interest upon interest may be allowed 610 Ghap. LIII.—Lmm 612 Bko. 1. Definitions 613 2. General and special liens 613^ 3. Stoppage of goods by seller before their delivery 616 4. Mechanics, furnishers, and laborers' lien on certain structures for work and materials, and herein 617 1. Who are structure creditors under the statute 617 2. Who are deemed primary and who secondary or subor. dinate structure creditors under the statute 617 3. Mode of proceeding by primary structure creditors to obtain the lien, and their rights and remedies 619 4. Eights and remedies of secondary or subordinate struc- ture creditors 623 5. General provision 626 6. Kemedies against a, railroad company on a claim against a con- tractor or Bub-oontraotor for work and materials 627 Chap. I/IV. — Limitation of Actions 633 SbO. 1. Within what time actions must be commenced 633 2. At what period the statute begins to run 634 8. Of the exceptions in the statute, and what acts prevent it from operating or running 637 Chap. LV. — Mareiages 540 XXll CONTENTS. Chap. LVl. — MoETGAQE OF Goods 643 Sac. 1. What mortgages of goods are void as to third persons, and what are not 613 2. When and how mortgages may be renewed 650 3. How the time of filing proved — fees for filing and for copies 651 4. Bights of parties — efifect of default in payment 652 Chap. LVIl. — Negligence 653 Sec. 1. General principle 653 2. Omission of duty — implied duties of the owner of property 653 3. Inevitable and other accidents 656 4. Contributory negligence, and injuries at railroad crossings 657 6. Pires — ^proximate and remote results of negligence generally. 662 Chap. iFi7J— Parent and Child 667 Chap. LIX. — Partnership 669 Bko. 1. What constitutes a partnership 669 2. Extent of personal liability of each, and who may be charged as a partner , 670 3. Power of each partner to bind the firm 672 1. By bill of exchange or promissory note 672 2. By sale, contract, deed, etc 674 4. Of the dissolution of a partnership, and the powers of a partner thereafter 677 5. Actions by and against partners 680 fi. Of writs of execution against partners 681 7. For what purposes limited partnerships formed, and extent of lia- bility of special partner 683 8. How limited partnership formed — the certificate — its record and publication 683 9. The name of the firm, and the general powers, duties, and liabilities of the general and special partners of a limited partnership... 685 10. Renewal and continuance of a limited partnership 687 11. Dissolution of a limited partnership before the time specified in the certificate 687 12. Actions by and against limited partnership 688 CONTENTS. ZXllf Cha:p. iX— Payment 689 Sec. 1. I'he difference between a payment and a set-off. 689 2. Application of payments, and to wliom to be made 689 3. In what cases money, etc., paid by mistake or compulsion may be recovered back 691 4. Payment by promissory note or bill of exchange 69.t ijhap. LXI. — Promissory Notes, Negotiable Bonds, and Bills 01" Exchange 695 £ko. 1. The difference between commercial paper and other claims for money 696 ' 2. Form of a bill of exchange, promissory note, and negotiable bond, and the parties thereto described 697 8. Of the general requisites of commercial paper 700 1. The date 700 2. To whom payable 700 3. The words "order," "bearer, or " assigns." „ 701 4. "Where payable 701 5. In what payable 702 6. "When payable 703 7. The words "value received." 704 8. "What words are sufficient to constitute a promise, etc... 704 9. Blank signatures delivered to be filled up 704 4. How these instruments are transferred 706 6. "Who may transfer these instruments 707 6. Of the indorsement ; and herein 708 1. Its form 708 2. Blank indorsement and its legal effect 709 3. Indorsement in full, and its legal effect 710 4. Eestriotive indorsement, and its legal effect 711 5. Indorsement waiving demand, and notice of non- payment 712 6. Indorsement without recourse on the indorser 712 7. Of the rights and obligations of the drawer of a bill of exchange, before acceptance 712 8. Of the presentment of a bill for acceptance 713 9. Of the rights and obligations of the acceptor of a bill, and the maker of a note or bond 715 10. Of the rights and obligations of the indorser of a bill, note, or bond, and of the drawer of a bill, after acceptance 716 11. The obligations of a holder who transfers without indorsement 718 12. At what time demand of payment must be made from the drawee or acceptor of a bill, or the maker of a note or bond, so as to make the indorser, etc., liable 719 3CX1V CONTENTS. Promissory Notes, etc. — Continued. 13. Of the mode in whicli demand must he made - 723^^ 14. Of the notiee of demand and non-payment to he given to the drawer of a hill, and to the indorser a note, hond, or hill, so as to make the indorser, etc., liahle, and herein 725 1. How the notice should he given 725 2. What the notice should contain, and the form thereof... 726 3. When the notice must be given 728 4. To whom and by whom notice should be given 729 15. In what cases demand, and when both demand and notice of non- payment will he excused, and when not 730 16. In what cases the want or failure of consideration, etc., may be set up as a defense 733 17. How the indorsers, etc., may be discharged by one party giving time, etc., to another 739' 18. Of the rights and obligations of parties to a lost, stolen, or forged note, hond, or bill, and forged indorsements of a genuine hill, etc. 741 19. Bankers' checks, and the rights and obligations of parties to a bank- cheek 746 Chap. LXII. — Eeplevin 751 Sec. 1. In what cases the action may he brought 751 2. How the action brought, and the form of the affidavit and writ 753 8. The service and return of the writ 755 4. The effect of the replevin bond 758 5. The proceedings after the return of the writ 760 6. Forms of verdicts and docket entries «... 763^ Chap. LXIII.—^AL-ES 766 Bbo. 1. When a sale is complete 766 2. Of the place of demand and delivery 774 8. Of the mode and time of day in which demand and tender should be made 775 4. Of the performance of a contract of sale, and the effect of a de- livery of part of the property 777 6. Of the effect of a tender upon the rights of the buyer and seller, and of the damages in such case, and when no tender is made.. 780 6. Of the remedy for defects in the quality, title, etc., or property sold; and herein 783 1. Of the fraudulent concealment or misrepresentation of ; the quality of things sold 784 2. Of the different kinds of warranty 787 8. Of implied warranty of title and quality 787 4. Of express warranty of quality _ 7903 CONTENTS. Chap. iJTJT.— Set-off and Countee-olaim 795 Sue. 1. The proTisions of the code 795' 2. Set-off. 796 3. Counter-claim 800 4. Proceedings when set-off or counter-claim exceeds the plaintiff's claim 800 Ghap. LXV. — Stbats AND Drifts 803 Chap. IiXVI. — Tbndee and Offee 814 Sko. 1. Offer to allow judgment to be taken 814 2. In what cases, and at what time, a tender maybe made with effect. 816 8. By whom, and to whom, tender must be made 816 4. In what kind of money a tender should be made 817 6. What amount must be tendered 818 6. In what cases the money must be actually produced 818 7. A tender must be unconditional » 819 8. Of the effect of a tender; and herein 1. Its general effect 819 2. When the contract is for the payment of money, and a tender is made before the commencement of the suit, with forms of docket entries 820 8. When the contract is for the payment of . a sum of money certain, and a tender is made after suit is brought, with forms of docket entries 820 4. When the defendant disclaims title to the property 821 6. When the suit is on a contract for work and labor, or for the payment of property, with forms of docket entries 821 Chap. LXTIl. — Time — how Computed 823 Ueo. 1. Gteneral rules..... 823 2. As to months 825 8. As to years 826 Chap. LXYIII. — Trespass upon Lands 827 Sbc. 1. Definition 827 2. What amounts to a license to enter upon lands 827 3. Of the possession necessary to maintain this action 830 4. Of the defense, etc 834 XXVI CONTENTS. Chap. LXIX. — Tkial as to the Eight to Pbopbrtt attached OR Levied UPON by Sheeipi' 837 Cha'p. LXX. — Teubtees of Townships 841 (%ap. liXXI. — ^Watek-crai't — Actions Against 842 Sbc. 1. Nature of the proceedings, and in what cases allowed, etc 842 2. The mode of proceeding ; the precipe, affidavit, and bill of par- ticulars, with the forms thereof. 846 8. The issuing and form of the warrant 848 4. Proceedings under the warrant, with forms - 849 5. Proceedings in the action after service of the warrant ~ 851 CAoj?. i^jTZZ— Work and Labor 853 Chap. LXXIIl. — Proceedings in Criminal Causes 863 Sec. 1. Jurisdiction in criminal cases _..._ 863 2. Arrest without warrant ~ 865 3. Application for a common state warrant, and the affidavit and docket entry 867 4. Security and judgment for costs _ 868 5. Issuing and form of common state warrants 869 6. Of the service and return of the warrant _. 871 7. Subpenafor witnesses 873 8. Adjournment of the trial of the complaint, with forms 873 9. The examination or trial, recognizance, mittimus, docket entries, etc „ 877 10. Search warrant; the affidavit, writ, service, etc., with forms 885 11. Proceedings for offenses committed in another state 889 12. The proceedings with forms on complaint to keep the peace...- 890 13. Disturbances and affrays in presence of the justice 894 14. Qui tam actions and suits for fines and penalties 895 15. Beport of fines and penalty for neglect __ 898 16. Criminal docket - 899 CONTENTS. XXVlT Chap. LXXIT. — Convetances, Agreements, Wills, etc.. 903 kfno. 1. Bequisitea of instruments affecting lands 904 1. The signing, sealing, attestation, and acknowledgment. 904 2. Powers of attorney to affect land, and their record 905 3. Instruments made in other states 905 4. Becording of deeds, mortgages, etc 906 2. Foims of various instruments 907 1. General warranty deed 907 2. Belease, or quit-claim deed 907 3. Mortgage 908 4. Short lease 908 5. Long lease 909 6. Power of attorney to sell lands 911 7. Power of attorney to lease lands 911 8. Power of attorney to collect debts 912 9. "Warrant of attorney to confess judgment in the court of common pleas 912 10. Articles of general partnership 912 11. Limited partnership 684 12. Arbitration bond and award 913 13. Common bond with a condition 915 14. Indentures of apprenticeship 915 15. Bill of sale, and mortgage of goods and chattels 917 16. Promissory note , 917 17. Bill of exchange 918 18. Belease and receipts 918 19. Agreements 918 S. Last will and testament - 921 1. General requisites of a will 921 2. Form of a will _ _ 923 8. Porm of a codicil to a will »...„ 925 4. A short will...., „ «,..„ 926- PART I. ELECTION OF JUSTICES OE THE PEACE; CIVIL JURISDICTION; A^D PRACTICE. CHAPTER I. THE OFFICE OF JUSTICE— ELECTION", BOOT). ETC. Sec. I. Number op justices in each township. II. Who is eligible. III. "When and how elected. IV. How their election contested. v. Term op oepice. VI. Their official oath, bond, and form. VII. Additional bond and new bond. VIII. Liability on the official bond. IX. Eksignation, and when the office deemed vacant. Sec. I. Number of justices in each township. When a new township is set off, the court of common pleas de- termine the-number of the justices to be elected.* Whenever it is made to appear to the satisfaction of the probate judge of the county, that there is not a sufficient number of justiices in a township, he may, on application therefor, add one or more.'' PubUc notice of the application must be given in- the township, and proof of such, notice having been given, must be made before the probate judge, at the time of the application.'' The statute does not prescribe how or where the notice shall be given. Notices are usually set up in two or three of the most public places in the township. The probate judge may also decrease the numbej*, when-ever it shall be made to appear that it is expedient; to do so j and when this is ordered, all the justices continue to act until the expiration of the term for which they were elected.'' » * (a) Bev. Stat., § 566. (b) Bev. Stat., § S68. 1 2 JUSTICES OF THE PEACE. [CHAP. Who is eligible — When and how elected. Sec II. Who is eligible. He must be an elector." The oflSce of justice of the peace can not be held by the following named officers : Sheriif, county au- ditor, county treasurer, clerk of the court of common pleas, county recorder, prosecuting attorney, and probate judge.* No provision in regard to the residence of a candidate at the time of the election seems to be made by law, except that he must bo an elector. Six months absence, however, of a justice from the township vacates the office.® Sec. III. When and how elected. When a new township is set off, the court of common pleas des- ignate the time for the first election ; and the clerk of the court transmits to the trustees of the township the order of the court fixing the number, and the time for their election.' If, however, there be no trustees of such new township, the clerk himself gives notice of the election, by causing advertisements to be set up in three public places in the new township, not less than ten noi more than fifteen days previous to the election, designating the time and place of holding such election.' If there are trustees in the new township, they give notice of the election in the manner hereinafter mentioned.' The time and place for holding elections for justices, at all sub- sequent periods, are determined by the trustees of the township, if there be any ; and if there be none, then by the clerk of the town- ship.e The clerk of the township, within three days after he receives notice from a justice of his resignation,8 and six months prior to the expiration of the .commission of a justice, must give notice to the trustees of the resignation, or the expiration of the commis- sion. In such case, and also when a vacancy in the office of a jus- tice happens, either by death, removal, absence at any one time for the space of six months, resignation, refusal to serve, or otherwise, the trustees, or, if there be no trustees, then the township clerk, must give notice to the electors of the township to fill such va- cancy. This notice must be given not less than fifteen nor more (o) Const. Art. 15, g 4. deputy sheriff; Kev. Stat., J (d) Eev. Stat., ? 18., 1209. (e) Bev. Stat., § 567. A justice or (f ) Eev. Stat., § 566. mayor can not be appointed (g) Eev. Stat., §§ 571, 567. I.] JUSTICES OP THE PEACE. 3 — 1 How their election contested. than twenty days, by advertisements set up in three public places in the township, specifying the number of justices to be elected, and the time for the election.'' It will be held at the usual place of holding elections.'' If the term of office of a justice is about to expire, the election may be held before the vacancy happens." The mode of conducting the election is the same as is required in the election of members of the general assembly.' Where the limits of a municipal corporation are co-extensive with the limits of the township, and the township becomes merged in the municipal corporation, the corporate existence of such town- ship will nevertheless continue for the purpose of electing the same number of justices and constables for such township, who must be voted for on the same ballot; but in cities of the second grade of the first class, and in cities of the second class, the corporate limits of which are co-extensive with the township, justices and consta- bles for such township must be voted for on the same ticket with officers for such cities ; and the municipal officers holding such elec- tion must proceed in the same manner and make like returns as in case of election for justices and constables held by the trustees and clerks in the townships.J In such cases, justices and constables to the number now or hereafter allowed bylaw to such township may be elected by the qualified voters thereof, at the time now or here- after provided by law for their election in other townships. In townships, however, in which the office of township trustees has been abolished, the city council of such city or the trustees of such incorporated village are vested, in connection with such election, with the rights, powers, and duties of township trustees.^ { Sec. IV. How their election contested. Any candidate or elector of the township may contest the elec- tion. For this purpose, and within ten days and not after, the contestor must file with the probate judge of the county a statement that the contestor means to contest the election, and the grounds of contest. The judge communicates this statement to the person elected, and cites him to aj)pear on a certain day (not more than (h) Eev. Stat., ?§ 567, 571, 581. (k) See post, p. 8. (i ) Eev, Stat., § 581. ( 1) Eev. Stat., g 569. (j) Eev. Stat., § 1719. 4 JUSTICES OF THE PEACE. [OHAP. How their election copteated. fifteen days from the day of Buch election) at his office, allowing such person five days' notice of the contest. The judge also directs the clerk of the court of common pleas to withhold the return of such contested election, until the same is decided.' The judge also, on the same day he issues the above notice, must appoint, and issue a summons to, three respectable freeholders of ■ the coiinty, not residents of the township in which the election was held, directing them to appear before him oh a certain day named. This summons is directed to the sheriff or any constable of the county, and must be served at least three days before the time appointed for the trial, and returned at the time and place of the trial.* Subpenas for witnesses may be issued, at the instance of either party, directed to the sheriff or any constable of the county, which are served and returned as in other eases.' If the freeholders fail to attend, the judge may appoint others in their place. If the judge fails to attend, any disinterested jus- tice of the peace of the county may act in his place. The freeholders are sworn or affirmed to try the contest agree- ably to the evidence. The witnesses are sworn and are examined as in other cases. But the testimony must be confined to the points of contest made by the written statement of the contestor, filed with the judge.' The freeholders can not set aside the election, merely because illegal votes were given, if the person whose election is contested has the greatest number of the legal votes, after deducting all illegal votes given to him, and also deducting illegal votes about which there is no evidence for whom they were given.' The freeholders sign and seal their decision. It must be also attested by the judge. If the freeholders determine that the election was illegal and void, the judge transmits, within three days thereafter, a copy of the decision to the trustees (or to the township clerk, if there be no trustees), who forthwith give notice of another election, as in other cases. If the freeholders decide that the election was valid and legal, the judge transmits a copy of the decision to the clerk of the court of common pleas, who proceeds as if no contest had taken place.™ If the election is not set aside, the judge enters a ju^ment for costs against the contestor, and issues execution to the sheriff or (1) Eev. Stat., ?§ 572-579. (m) Eev. Stat., ? 575. I.] JUSTICES Oi" TKB PEACiS!. Term of office— Official oath, bond, and forms. any constable of tbe county. From this judgment there is no appeal. If the election is set aside, the township pays the costs." The judge or justice, and freeholders, each receive one dollar pei day; and the sheriff, constatle, and witnesses, the same fees as in other cases for like services." Sec. v. Term of office. By the constitution; the term of oflSce of justices of the peace is limited to three years." The three years are computed from the date of the commission.? If a justice continues in office by re-election, he may proceed with matters pending before him in like manner as if his former term of office had not expired.' If a part of a township is attached to another township, tbe justice residing in the limits of that part of the township so at- tached, executes the duties of his office, and becomes a justice of the peace of the township to which the territory in which he resides is attached, as if elected for such township.' Sec. VI. Their official oath, bond, and forms. "When the commission is received from tbe governor, the person elected must take an oath of office before tbe clerk of the court of common pleas, or a justice of tbe peace of tbe county. A certifi- cate of tbe oath must be delivered to tbe clerk of tbe court of com- mon pleas within ten days after tbe administration of tbe oath.' Tbe following form of the certificate will indicate also tbe form of tbe official oath : E. S. § 3. Wo. 1.] Form of certificate of the official oath of a justice. The State of Ohio, county, ss. Be it remembered, that on this day of , A. D. 18 — , be- fore me, tbe undersigned, personally appeared G- H, of town- ship, in said county, who maide oath that be would support tbe constitution of the United States and tbe constitution of the State of Ohio, and that, as justice of tbe peace in and for said township and county, he would administer justice without respect to persons, and faithfully and impartially discharge and perform all tbe duties (n) Eev. Stat., ? 578. (q) Bev. Stat., § 668. (o) Const. Art. 4, § 9. (r) Eev. Stat., § 579. See Kev.Stat., (p) Eev. Stat., ? 581. §§ 2, 1737. 6 JUSTICES OF THE PEACE. [CH^I Official bond. incumbent upon him as such justice, according to the best of hi ability and understanding. In testimony whereof, I have hereunto set my official hand, th day and year'first above mentioned. G H, Justice of the Peace in and for county, or Clerk of Common Pleas of county. Within ten days after taking the oath of office, the person electee must enter into bond, to be approved by the trustees of the town ship, payable to the State of Ohio, with at least two sufficient sure ties, with a penalty of not less than one thousand dollars nor mon than five thousand dollars, at the discretion of the trustees. Thi approval Of two of the trustees signed at the same date has beei held sufficient ; and nothing appearing to the contrary, it will b( presumed it was done at a meeting of the trustees.^ The bond within the same ten days, must be deposited with the townshi] treasurer, unless the township treasurer should be the justici elected, then with the township clerk. The statute requires thi bond to be conditioned that the justice shall well and truly paj over, according to law, all moneys which may come into his handi by virtue of his commission, and that he will likewise faithfully perform every ministerial act that is enjoined upon him by law. A bond conditioned that the justice "shall faithfully perform th( duties of the office " is sufficient." No. 2.] Form of the official bond of a justice. ■ Know all men by these presents, that we, G H, A B, and C D are held and firmly bound to the State of Ohio in the sum of thousand dollars ; for the payment of which we hereby bind our selves. Signed and sealed by us, this day of , a. d. 18 — Whereas, the said G H hath been duly elected and qualified ai justice of the peace in and for the township of , in the countj of , Ohio, and whose commission as such was issued and ii dated on the day of , A. d. 18 — . Now, the condition of the above obligation is such, that if thi haid G H shall well and truly pay over according to law all money which may come into his hands by virtue of his said commission and shall likewise faithfully perform every ministerial act that ii (s) 22 Ohio St. 31 7. (u) 22 Ohio St. 817 ; Bev. Stat., § 7. (t) Eev. Stat., §§ 579, 7. I.J JUSTICES OF THE PEACE. 7 Additional bond and new bond. enjoined upon him by law, by virtue of his said office, then this obligation to be void, otherwise to be and remain in full force. [seal.] - [seal.] [seal.] The above bond, sureties, and amount approved by us, this day of , A. D. 18 — - ) Trustees of township, i county, Ohio. Official bonds are legal and binding, although signed and sealed when the penal amounts are in blank, if such blanks are filled up before or at the time of their approval and acceptance ; and such filling up may.be done in the absence of the obligors and without any express authority from any of them.^ A justice can perform no official act until his official bond has been executed.^ If he refuse or neglect to enter into such bond within ten days after taking the oath of office, or neglect or refuse to otherwise officially qualify himself, his office becomes vacant, and the trustees of the township give notice of a new election.^ The official bonds of justices of the peace, township treasurers, and constables, so soon as approved by the trustees of the town- ship, as provided by law, and before being filed as required by law, must be recorded by the clerk of the township in a book provided and kept for that purpose. The officer pays the clerk fifty cents for recording the bond. For a certified copy of the bond, which is made evidence in all courts the same as the original, the clerk is entitled to a fee of fifty cents.^ The justice must transmit to the township clerk within thirty days after receiving a commission, a memorandum of its date.'' Sec. VII. Additional bond, and new bond. When, in the opinion of the trustees of the township, the security required to be given by a justice, shall be, or shall become insuf- ficient for any cause, the trustees may give the justice notice in writing that he is required within ten days to give additional security, to the satisfaction of the trustees ; and if the justice neglect or refuse to enter into bond with sureties, the office be- (v) Kev. Stat., § 6. As to defects, (w) Rev. Stat., g 579. etc., in bonds of municipal of- (y) Bev. Stat., g§ 5, 1506-1508. fleers, etc., see Kev. Stat., ? 1738. (z) Kev. Stat., ? 581. 8 JUSTICES OF THE PEACE. [CHAP. Liability on the official bond. comes thereby vacant, and the trnatees give notice of a new elec- tion to fill the office/ Additional names signed to the old bond, without seals, and such now names omitted in the body of the bond, and no action taken by the trustees thereon, is not a compliance with the requisition to give other or additional security ; and the obligation of the original sureties will remain in full force against them.* The sureties, whenever they desire from any reasonable cause to be released from their suretyship, may give notice, and proceed in the manner hereinafter directed to relieve themselves from any future obligations.'' In this connection, it is proper to state that when the corporate limits of a city or village become identical with those of a town- ship, the offices of township trustees and township clerk in such township are thereby abolished ; and all the powers and duties of trustees of township conferred or pi-escribed by law vest in and must be performed by the council, .except as to binding out appren- tices and administering relief to the poor ; <= and the duties of the clerk of such township must be perfcwmed by the clerk of the cor- poration." Sec. VIII. Liability on the ofpioial bond and personally. The official duties of a justice are divided into two kinds : judi- cial and ministerial. Judicial are those of a judge, and in which he is required to exer6ise his judgment and opinion before acting. Ministerial duties are of the same nature as those required of a sheriff or clerk of a court; that is, acts which thfe law commands him to execute without leaving him any discretion to do or not to do them.* For judicial acts, done within the scope of his jurisdiction, neither the justice nor his sureties are liable, however erroneous or mistaken he may be in the exercise of his judgment. But for neg- lect to perform ministerial or admigjgtrative acts, he and his sure- tics are liable.^ For instance, the mere clei-ical entry of a judgment is a minis- terial act, and, if not done within the time hereafter stated.^ the (z) Eev. Stat., ? 580. (d) 22 Ohio St. 317. (a) 19 Ohio St. 485. (e) 18 Ohio St. 546. (b) See post, pp.503, 504. (k) See post, p. 200. ,(o) Kev. Stat., ?g 1623, 1625, 1759. I-.] JtTSTtOES OF THE PEACE. 9 Liability on the official bond. justice is liable for damages. If, therefore, sitting in his court, he announces his judgment, and then fails to enter it within the time required by law, but enters it afterward, and the judgment is re- versed on that account, he would be liable at least for costs and at- torney's fees.' But a judgment and its entry on the docket are two different things. Thus a jury in a trial before a justice ren- dered their verdict, and the justice entered judgment after the time required by law, and on that account the judgment was reversed lor the error. In a suit against the justice for not entering the judgment within the time required by law, the Supreme Court held that in the absence of proof that the justice had announced a judg- ment before the entry of the judgment on the docket, he was guilty only of a failure to perform a judicial act.* But, in general, whenever a particular ofScer is charged by law with the duty of making specific entries in dockets, records, oi- registries, he is liable to any person whom he may injure by his negligence. And this rule is applicable to justices as well as clerks, recorders, etc.s The official bond of a justice imposes no additional personal lia- bility upon him, nor does it extend to any third person any new right of action against him. For instance, he is liable, independ- ent of the bond, for money collected in his official capacity and wrongfully withheld, or for neglecting to perform, for a person en- titled to his services, any ministerial act enjoined upon hini by law. The only object of the official bond, therefore, is to afford to a party aggrieved by his misconduct in his ministerial duties, secur rity beyond that of the personal liability of the justice.'' If re- quired by law to issue an execution on a judgment after the ex- piration of ten days, without a demand, and to proceed to collect the judgment unless otherwise directed by the judgment creditor,, and he neglects to do so, he is guilty of a breach of his bond, for which he and his sureties are liable; but the judgment creditor alone is entitled to his action, and-damages therefor to the extent of the loss occasioned by the neglect.' In such action, the damages which other persons collaterally interested in the issue of the exe- cution may have sustained indirectly (as for instance the indorser of the note upon which the judgment was rendered), can not be recovered from the justice or his sureties.J (f ) 18 Ohio St. 544; 29 Id. 156. (h) 12 Ohio St. 186. (g] 20 Ohio, 327 ; 15 How. U. S. 179 ; (i) 23 Ohio St. 255 ; 12 Ohio St. 180. 12 Penn. St. 227 j 29 Vt. 305; (j) 12 Ohio St. 186. 44 N. y. 315, 10 JUSTICES OP THE PEACE. [CIIAP. Liability on the official bond. The extent of the liability of the justice and his sureties to the judgment creditor.in such cases, is measured by the extent of the injury or loss. Hence the insolvency of the judgment debtor, showing that the execution would have been useless, is a proper defense.* The neglect of a justice to enter on his docket an undertaking for the stay of execution, is not a breach of duty for which a judgment creditor may complain or maintain an action against the justice ; for, there being then no stay of execution, and no right in the justice to withhold the execution, the judgment creditor should have sought his remedy by causing an execution to issue.' The taking of an undertaking or bond before issuing an order of arrest in a civil action, is a ministerial act ; and the issuing such order of arrest, withoutan undertaking previously executed, is a breach of ministerial duty, and the justice and his sureties will be liable to an action therefor by the. party injured." If money oflicially collected by a justice remains in his hands at the time his term of oflS.ee expires, and is afterward demanded and not paid over, or if his personal representative refuse, on demand, to pay over money oflicially collected by him and remaining in his hands at the time of his decease, in either case the sureties on his ofiScial bond will be liable." The only form of action allowed by the statute to persons ag- grieved and suing on the official bond of a justice in their own names, is a joint suit against all the obligors, although the bond may be in its terms joint and several. Hence separate judgments can not be taken against the sureties." The failure of the justice to take an oath of office is no defense.' It has been already stated that justices, while acting within the scope of their authority, are not answerable in a private action for the cifroneous exercise of judicial functions with which they are in- vested by law. But such justices, and indeed other inferior tribu- nals invested only, with special jurisdiction and clothed with limited authority, must, at their peril, keep within their prescribod juris- diction ; and if they transcend the limits of their authority, they are answerable to any one whose rights are thereby invaded ; and, ill such case, honesty of purpose, while it may mitigate damages, (k) 23 Ohio St. 255. (o) 23 Ohio St. 534. As to the suit, (1 ) 23 Ohio St. 255. see Bev. Stat., §g 4994, 1507. (m) 22 Ohio St. 817. (r) Bev. Stat., § 2. (n) 4 Ohio St. 387. I.] JUSTICES OP THE PEACE. 11 Kesignation, and when the office is deemed vacant. can not justify a clear usurpation of power. For instance, if a jus- tice, without authority of law, issues a warrant .of arrest, both he and the person at whose instance he so acts, are liable in an action for false imprisonment at the suit of the party illegally arrested thereon.* Sec IX. Eesignation, and when the oppioe is deemed vacant. The resignation of a justice must be made to the clerk of the court of common pleas, and the justice must, at the same time, give notice thereof to the township clerk.'' The office is deemed vacant : 1. If the justice is absent from the township at any one time, for the period of six months ; " 2. If he neglect or refuse to execute and file an official bond with approved sureties within ten days after having taken the oath of office j"* 3. If he neglect or refuse to execute an additional or further bond, when required by the trustees of the township, and at the instance of his sureties, as before stated ; « and 4. If he neglect or refuse to otherwise officially qualify himself by taking an oath of office,' etc. (a) 33 Ohio St. 186. (d) Kev. Stat., g§ 579, 19. (b) Eev. Stat., § 570. (e) Eev. Stat., §§ 580, 5842, 5843 (c) Eev. Stat., § 567. (f ) Eev. Stat., g 19. i2 JURISDICTION IN CIVIL ACTIONS. [CHAP. In -what oases eo-extensive with the county. CHAPTER II. JIJEISDICTION m CIVIL ACTIONS. Seo. I. Its limit geneeallt. 11. In what cases co-extensive with the countt. III. Limitation of jueisdiction as to amount in controveest, IV. Actions against eailroad companies. V. In what cases justices have no jurisdiction. VI. Jurisdiction op justice as chancelloe — The code. VII. Consequences of peoceeding in cases in which he has NO jueisdiction. viii. Matoes. Sec. I. Its limit generally. Wliile courts are liberal in reviewing the proceedings of justices and other inferior tribunals, so far as respects regularity and form, they will hold them strictly within the limits of their jurisdiction as prescribed by statute." The jurisdiction of justices' of the peace in civil cases is, tinlesB otherwise directed by law, limited to the township wherein they have been elected and reside;'' and extends generally to civil suits, wherein the debt or damages do not exceed three hundred dollars.' It extends as well to debts and to contracts relating to personal property, as to injuries to personal property.* The exceptions to this rule will be stated in the next succeeding sections. Sec II. In what oases co-extensive with the county. Their jurisdiction and authority are, by express law,« co-exten- Bive with their respective counties : (a) 13 Ohio St. 415, 416; 3 Id. 494; (c) Rev. Stat., § 585. 3 Ohio, 281 ; Const. Art. 4, § 9. (d) 13 Ohio St. 485 ; 9 Id. 627. (b) Eev. Stat., § 582. ' (e) Eev. Stat., § 683. n.] JURISDICTION IN CIVIL ACTIONS. 13 In what cases co-extensive ■with the county. 1. To administer auy oath or afBrmation authorized or required by law to be administered. 2. To take the aoknowledgment of deeds, mortgages, and other instruments of writing. 3. To solemnize marriages. 4. To issue subpena for witnesses and coerce their attendance in causes or matters pending before them, or other cause or matter wherein they maybe required to take depositions. 5. To try the action for the forcible entry and detention, or the detention only, of real property. 6. To proceed against security for costs and bail for the stay of execution on their dockets. 7. To issue attachment, and proceed against the goods and effects of debtors in certain cases. 8. To issue executions on judgments rendered by them. 9. To proceed against constables failing to make return, making false return-, or failing to pay over money collected on execution issued by such justice, 10. To try the right of the claimant to property taken in execu- tion or on attachment. 11. To act in the absence of the probate judge in the trial of con- tested elections of justices of the peace. 12. To try actions against other justices of the peace for refus- ing or neglecting to pay over moneys collected in their ofSeial capacity, where the amount claimed does not exceed one hundred dollars ; but this jurisdiction over such' actions against justices in no way affects any remedy now provided by law, by suit in the proper court, on the official bonds of justices, or by amercement or other- wise, for such neglect or failure, to pay over money.' No householder or freeholder resident of^he^ounty can be held to answer any summons issued against him by a justice, in a civil ') matter, in any township of such county other than the one where he resides, except in the cases above stated, and the following :s 1. Where there is no justice of the peace for the township in which the defendant may reside ; or where the only justice residing therein is interested in the controversy ; or where he is related, as father, father-in-law, son , son-in-law, brother, brother-in-law, guard • (f) Rev. Stat., ? 583. As to actions (g) Rev. Stat., g 584. of replevin,, see ppst, title, Re- FLETIN. 14 JURISDICTION IN CIVIL ACTIONS. [cHAP. Aa to amount in controversy. ian, ward, uncle, nephew, or cousin, to either of the parties, and there is no justice in the township competent to trv the cause. In the foregoing excepted cases, the action maybe brought before any justice of an adjoining township of the same county, and the jus- tice must state on his docket the reason of his taking jurisdiction. 2. "Where the summons is accompanied with an order to attach property, the jurisdiction is co-extensive with the county .8 . 3. Whentwoor more persons are jointly, or jointly and severally, bound in any debt or contract, or otherwise jointly liable in the same action, and reside in different townships of the same county, the plaintiff may commence his action before a justice of the township in which any of the persons liable reside, except that in joint actions .against the makers and indorsers of notes, due-bills, or bills of ex- change, the action must be commenced in the township where one of the original makers, drawers, or indorsers reside ; and if it be claimed by the plaintiff that an indorser indorsed the note or bill at the time it was made, and the jurisdiction depend thereon, before the justice can take jurisdiction, the plaintiff, or some person for him, must file an affidavit setting forth that fact.e 4. In cases of trespass to real or personal property, the action may be brought in the township where the trespass was committed, or in the township where the trespasser, or any of the several tres- passers, reside.s 5. In actions founded upon an undertaking given in pursuance of law, in any civil proceeding pending before a justice, such jus- tice, or his successor in office, has jurisdiction co-extensive with the county ; and where the sum due or demanded on such undertaking exceeds one hundred dollars, the jurisdiction of the justice is con- current with the court of common pleas."^ 6. When it is objected at the trial and appears by the evidence that the action is brought in the wrong township, judgment that the action be dismissed without prejudice to a new action should be entered with costa' Sbo. III. Limitation op Jurisdiction as to the amount in con- troversy. In general, justices of the peace have exclusive original juris- diction of any sum not exceeding one hundred dollars, and con- (g) Rev. Stat., ? 584. (k) Eev. Stat., ? 587. See post, p. 16. (i) See post, Chap. XVIII., ? 6. As to suits relating to partition (1) Kev. Sfat., ? 6576. fences, see Eev. Stat., §8 4246-7. II.] JUaiSDIOTION IN CIVIL ACTIONS. 15 As to amount in cqntroversy. current jurisdiction with the court of common pleas, in any sum over one hundred dollars, and not exceeding three hundred dol- lars.' That is, a person may bring his action either in the court of common pleas, or before a justice, when his claim is over one hun- dred and does not exceed three hundred dollars ; but for a sum not exceeding one hundred dollars, he mus t bring his suit before a j ustice. if, therefore, an action is brought in the court of common pleas in which the plaintiff claims in his petition to recover one hundred dollars or less, the court has no jurisdiction, and will at any time dismiss the case and render no judgment ; but if the plaint- iff in his petition claims to recover more than one hundred dollars, but on trial obtains a verdict for one hundred dollars or less, the court will render judgment for the amount of the verdict, but not for the costs of the plaintiff. If, however, a jury in the court of common pleas have found by their verdict that the plaintiff's claim is more than one hundred dollars, and have reduced it to one hun- dred dollars or less, by allowing the defendant a counter-claim or set-off, the court will render judgment on the verdict, with COStS;^ If a counter-claim or set-off is denied by the plaintiff, in the court of common pleas, and the jury, without noticing the issue thus made, find the issues joined for the plaintiff, and assess his damages at less than one hundred dollars, this is in effect finding against the set-off and counter-claim, and the plaintiff will be en- titled to judgment without costs^ These rules are equally appli- cable to an action of trespass to real estate, in which the plaintiff sues in the court of common pleas, demanding over hundred dol- lars damages, and recovers less than one hundred." When the balance claimed to be due on any open or unsettled account, or any bill, note, or bond, is less than three hundred dollars, the partyby whom such balance is claimed may commence his action therefor before a justice of the peace, who is aiuthorized to hear and determine the matters in controversy without regard to the amount of the original account or contract, a,nd he may render judgment for any balance found due, not exceeding three hundred dollars ; p ( 1 ) Eev. Stat., §g 585, 456. (p) If plaintiflF claim but f 300, and yi(m) 6 Ohio St. 597; 14 Id. 336; 5 Id. more is due, he is presumed to 46 ; 23 Ohio St.'l96. remit all but $300. 29 Ohio ;^(n) 23 Ohio St. 196. St. 604. (o) 14 Id. 336. 16 JURISDICTION IN CIVIL ACTIONS. [CHAP, Actions againet railroad companies. and if any plaintiff a,ppeal from a judgment entered in his favor for such balance, and recover judgment for a sum greater than three hundred dollars, besides interest and costs,' he can not recover costs on such appeal.P If a debtor appear before a justice of the peace, without process, and confess that he is indebted to another, the justice may, on the application of the creditor, render judgment, on such confession, against the debtor, for any sum not exceeding three hundred dollars.'* In actions founded .upon an undertaking given in pursuance of law, in any civil proceeding pending before a justice'", such justice or his successor in office has jurisdiction, as already stated, co-extensive ■with the county ; and if the sum due or demanded on such under- taking, exceeds one' hundred or even three hundred dollars, the jurisdiction, of such justice or his successor is, notwithstanding, concurrent with the court of common pleas of the proper county.' In the exercise of this jurisdiction in actions founded upon an under- taking, it will be observed that the concurrent jurisdiction of a justice can be exercised only under the following circumstances : 1. The undertaking upon which the action is brought must have been given in a civil proceeding pending before a justice ; and, 2. The aiCtion upon the undertaking must be brought before the justice under whose proceedingsi the undertaking was given, or be- fore his successor in office. When, therefore, the undertaking is sued before a justice, other than the one before whom the under- taking was given, or his successor in office, the jurisdiction is the same as in an ordinary suit brought on a bond or contract. In actions for trespass upon real estate, justices have jurisdiction when the damages demanded do not exceed one hundred dollars. No claim of title set up by the defendant affects the jurisdiction in such eases." Sec. IV. Actions against railroad companies. A railroad company may be sued before a justice in the township in which the president of the company may reside, or in any town- ship in which the railroad owned or leased by the company is lo- cated, whether the company be foreign or domestic' All special laws in charters prescribing the place of suing railroad companies; or the i)lace or manner of service of process on them, are abrogated.' (p) 'Bev. Stat., ? 586. (s) Eev. Stat., J 590. (q) Eev. Stat., § 588. (t) Eev. Stat., j 6478. (r; Kev. Stat., § 587. n.] JURISDICTION IN CIVIL ACTIONS. 17 Cases in vhich justice has no jurisdiction. Sec. T. In what cases justices have no jurisdiction. Justices have no jurisdiction in the following cases :" 1. In an action to recover damages for an assault, or assault and battery. 2. An action to recover damages for a malicious prosecution. 3. In general an action can not be brought against a justice of the peace, or other oificer, for misconduct in office, except where the jurisdiction is specifically given by law.(l) The exceptions to this rule are elsewhere stated. 4. Actions for slander, verbal or written. 5. Actions on contracts for the purchase or conveyance of real estate can not be brought before a justice. A contract for real' estate is an agreement to sell or convey an interest, title, or estate in lands. Thus a contract to execute a lease, or to sell or assign a lease or title bond, or to convey a dower estate, would be a contract for real estate; and no action can be brought before a justice for a breach of such contract. But a contract for the sale or conveyance of an interest or estate in real property, and a contract for labor to be done on real estate, are entirely different.. It is only on a contract for real estate that a justice has no jurisdiction.'' There- fore suits may be maintained before a justice on a contract to clear land, or to build or repair a house, or to leave a farm in good con- dition, to put in a crop, and, in general, for the breach of any con- tract for labor to be done on real estate.' So, it seems, a justice has jurisdiction of an action for the rent of land. 6. Actions in which the title to real estate is sought to be recov- ered, or may be drawn in question (except actions of trespass on real estate), can not be brought before a justice. A trespass upon real estate is, in general, an illegal entry upon, or an immediate or direct injury to lands, or to something placed thereon with a view of improving if" There are a great variety of injuries to land not amounting to a trespass, and for which an action can not be brought before a justice, because, in such action, title may be drawn in question. Thus, a person may build a mill- dam on his own land, and thereby cause water to overflow the land (u) Eev. Stat., § 591. (v) 13 Ohio, 43. (w) Of course damages done .by animals is a trespass. 34 Ohio St. 133. (1) A postmaster, therefore, can not be sued before a justice for. negligence in losing a letter containing money. 4 Ohio St. 676. Nov an administrator on his administration bond. 31 Ohio St. 635. 18 JUBISDICTION m civil. ACTIONS. [CHAB Oases in whioh justice has no jjurisdiotion. of another ; or erect a tallow-furnace, or other offensive thing, on "his own land, and so near the house of his neighbor as to deprive Tjim of its enjoyment; or place a spout on his own building, and thereby cause the water to run into the cellar of a neighbor: in these cases the injury is done indirectly, and no trespass is actually •committed ; and, in order to maintain an action, it would be neces- Vsiiry for the plaintiff to prove that he had title to the land or build- ing injured. Now in such and the like cases of injury to real -estate, where the act complained of does not amount to a trespass, and where some title, by deed or possession, must be shown on the part qf the plaintiff, to maintain the action, a justice has no juris- diction." The following general rule may therefore be laid down : When the nature of the action is such that the plaintiff, as a part of his ■«ase, and to maintain his action, must prove or disprove title to, or possession of lands, either in himself or some other person, a jus- "tice has no jurisdiction over the action, unless it be for a trespass. If the nature of the action is such, however,' that the plaintiff, as a part of his case, and to maintain his action, need not prove title or "possession of real estate, but the defendant, to defeat the action, ■sets up title or possession of real estate in himself or another, the magistrate has, notwithstanding, jurisdiction of the action.^ The reason of the last rule is this: That if the defendant could, at his ■discretion, defeat the jurisdiction of the justice by drawing title to real estate in question, he could, when an action for the same cause should be brought in the court of common pleas, subject the plaintiff to costs for not bringing the action before a justice, by 'Simply not setting up title in the common pleas. The statute, V (w) 15 Ohio, 483, 488; 4 Id. 200. A 142; 33 Penn. St. 868, 371. right or easement to light and As to what is a nuisance, for air to be supplied to one's win- which an action may be main- dows from the premises of an- tained, see 12 Ohio St. 387. other, can not be acquired in Actions relating to the inva- Ohio by use or prescription; sion of a right to light and nor will it be implied where A air, and for a nuisance affecting owns two adjacelit lots, and the enjoyment of real estate, sells one of the lots, which has where no trespass is committed, a building upon it, with win- can not be brought before a dows which are supplied with justice of the peace, light and air from the adjacent (x) 4 Ohio, 200; 7 Id. (pt. 2), 280; lot' 10 Ohio St. 623; 19 Id. 15 Id. 483, 489 ; 13 Id. 46. SI.] JUBISDICTION IN CIVIL ACTIONS. 19 Jurisdiction of justice as chancellor. therefore, in providing that a justice shall not have cognizance of actions in which title to real estate may be drawn in ques- tion (except actions of trespass), mean^ that a plaintiff shall not ibring an action in which he must on his' part, and to maintain it, prove or disprove title to real estate. Thus, suit is brought on a note, and the defendant sets up as a defense that he gave the note to settle a supposed trespass committed by him upon the land of the plaintiff by cutting his timber, and that he afterward discovered that the plaintiff had really no right to the land upon which the timber was cut. Here the plaintiff, to recover, need only produce the note in the first instance ; but the defendant sets up as a defense -a question of title, and this would not prevent the justice from de- ciding upon the merits of the defense, and adjudicating upon the whole matter. But if under the above facts the maker of the note paid it by mistake, he could not sue before a justice to recover back the money, for his cause of action would raise a question of title. Under the provisions of the liquor laws relating to forfeiture, •etc.,y the action involves title to real estate, and can not be brought before a justice." 7. There is an exception to all the above mentioned rules, and it is this: Where a statute specifically authorizes a remedy under it by an action before a justice, and such action necessarily involves questions of possessory or other title to real estate, the legislative intent is then manifest that the justice shall decide, and he may de- cide on all the questions involved in the action.'' .Sec. VI. Jurisdiction op justice as chancellor — The code. The code of civil procedure for the courts of record is contained in the Eevised Statutes of 18S0, from section 4947 to section 5912. It enacts ° that its provisions, which are in their nature applicable to the proceedings before justices, and in respect of which no pro- vision is made in the justices act, are applicable to proceedings be- fore a justice.* This is a blind guide, even to the legal profession ; and in the text of this work the "code" is frequently referred to to distinguish it from the justices act. Some might perhaps sup- pose that many of the provisions of the code which relate to equity suits were applicable to proceedings before a justice. (y) Eev. Stat., ?§ 4364, 4361. (a) Kev. Stat., g 6705. (z) 21 Ohio St. 184. (b) 80 Ohio St. 62 j 26 Id. 269. 20 JURISDICTION IN CIVIL ACTIONS. [CHAK Consequences of proceeding without jurisdiction. Such a constrnction of the justices act would lead to very ah- Burd and impracticahle results. Suits in chancery were, in general, brought to restrain a party from doing some act, or to compel him to do some act, other than the payment of money. The general jurisdiction of a justice, by the very terms of the statute, relates to the recovery of a smot of money, either on account of an exist- ing debt, or as a compensation for damages sustained ; and the bill of particulars, set-off, stay of execution, the execution, etc., men- tioned in the justices act, are all based upon common-law proceed- ings and common-law judgments for money. The provisions of the code, therefore, in relation to eq uitab le suits and c hance ry pro- ceedings, injunctions, etc., are not " in their nature applicable to- the jurisdiction or to proceedings before justices of the peace." How far tbe court of common pleas, on appeal, will permit the- parties to mold their petition, answer, and proceedings to meet any principles of equity which may be involved in the action, and upon what terms as to costs, etc., is quite a different question, and does not come within the scope of this treatise. Sec. VII. Consequences op pkoceedinq in cases where he has- NO JURISDICTION. In all cases in which the justice has authority by law to act, if he, makes any mistakes or commits any errors, the party injured has, in general, his remedy by appeal or petition in error. If a justice has jurisdiction over the subject-matter, his adjudications are not void, but valid until reversed." Hence, however irregular his pro'ceedingB maybe, if he has jurisdiction of the subject-matter of the action, and the parties are before him by proper process, his judgment, though erroneous and subject to reversal, is not void.^ But if a justice undertakes to exercise jurisdiction, and to enforce- his judgments or proceedings by process, in cases or upon subjects over which he has no jurisdiction, his proceedings are void, and he is liable to the action of the party injured, precisely as if he held no commission as a magistrate.^ A justice can not, as such, acquire jurisdiction of a subject-matter not conferred by law, even by the copsent of parties.' (c) 11 Ohio, 257. (e) 15 Ohio, 435; 12 Id. 253. (d) 6 Ohio St. 802. (f) 2 Ohio St. 223; 8 Caines, 129, ■ft.] JURISDICTION IN CIVIL ACTIONS. 2l Consequences of proceeding without jurisdiction. In general, when a suit has been unadvisedly brought, in which the justice has no jurisdiction, he should enter an order thus : " This case, for want of jurisdiction, is struck from the docket and ■dismissed." No order or judgment in respect to the costs can be entered.^ Sec VIII. Mayors. The mayors of cities and villages, and the president of the board •of trustees of hamlets, within the limits of the corporation, have the same jurisdiction in civil cases as justices of the peace,^ and are ■entitled to like fees.' They must keep the same kind of docket as justices," and in general proceed in like manner in civil cases as is prescribed by law for justices^ Appeals from their judgments in ■civil cases may also in like manner be taken ; but if the city or village extends into two or more counties, the appeal must be taken to the court of common pleas in which one or more of the defend- ants reside.'' Eills of exception may of course be taken in civil ■cases ; and, in cases for violations of ordinances, either exceptions may be taken or astatement of the facts embodied in the record must be made, at the request of either party, and a petition in error £led or otherwise allowed by leave of the court or judge, and sen- tence suspended as in criminal cases.* Mayors must subscribe their names and afSx their official seals to all writs, process, tran- scripts, and other official papers.' (g) 8 Ohio St. 205 ; 2 Ohio, 254 ; 4 Id. (h) Rev. Stat., ?? 1744, 1700. For the 200; "Wright. 417. On error in general duties, etc., of mayors the court of common pleas or and presidents of hamlets, see Supreme Court to reverse the Eev. Stat., §§ 1744-1764, 22 judgment of an inferior court, 1816-1846. for want of jurisdiction, on re- (i ) Eev. Stat., § 1745. versa!, judgment will be ren- (j) Kev. Stat., | 6706. dered as usual for costs. 22 (k) Kev. Stat., g 1752. Ohio St. 268; Kev. Stat., 1 6733. (1) Kev. Stat., § 1837. 22 SEOUBITT FOE COSTS IN CIVIL ACTIONS. [chAP. In what cases required before actions — ^Form of undertaking for costs. CHAPTER III. SECUEITY FOR COSTS HT CIVIL ACTIONS. Sec. I. In what cases bequiked befobe action. II. FOEM OF UNDEETAKING FOE COSTS IN SUCH CASE. III. When eequieed aftee action beought, and foem of uw- DEBTAKING. IV. Action on the ttndeetaking. Sec. I. In what cases eeqttiebd eefoke action. When a person, intending to bring an action before a justice of the peace, is a non-resident of the township in which he intends to commence such action, the justice may, previous to his issuing process, or at any time before trial, require such person to give- security for the costs of suit. This may be done by depositing a sum of money deemed by the justice to be sufficient to discharge the costs that may accrue in the action, or by giving an undertaking with surety approved by the justice, payable to the adverse party^ for the payment of all costs that may accrue in the action." The undertaking may be in the form following: Sec. II. FoEM of undeetaking fob costs. \No. 3.] This undertaking witnesseth : Whereas, A. B., a non-resident of township, county, Ohio, intending to bring [or say having brought, as the case may 6e] an action against C. D., before the undersigned G. H., a justice of the peace of said township, who requires security for costs therein to be given : Now, we, the said A. B. and L. M. (his surety) hereby undertake and promise the said C. D. to pay all costs that may accrue in the said action. A. B. L.M. (a) Eev. Stat., § 6701. m.] SECimiTT FOE COSTS IN CIVIL ACTIONS. 23 The undertaking, and action thereon. Taken by, and signed and acknowledged before me, and surety approved, this day of , A. D. 18 — . G. H., Justice of the Peace. Sec. III. When required after action brought. If any plaintiff or plaintiffs, after commencing an action before a justice in the township in which he or they reside, remove out of the county, the justice may require such plaintiff or plaintiffs to deposit a sum of money equal to the costs that have accrued and that probably will accrue, or require, in place thereof, that such party give sufficient surety for all costs which have accrued, or which may accrue in the action, and, in default to do either, enter a nonsuit against the plaintiff or plaintiffs.'' The form of the undertaking in such case may be as follows : No. 4.] , Form of Undertaking for Costs after Action brought. This undertaking witnesseth : Whereas, A. B., late resident of the township of , in the county of , Ohio, commenced a suit before G. H., a justice of the peace of said township, against C. D., now pending, and the said A. B. having since removed out of said county, the said justice requires him to give surety for costs : Now, I, L. M. (surety for said A. B.), do hereby undertake and promise the-said C. D. to pay all costs that have accrued or which may accrue in the said action. [Signed, etc.] L. M. Taken by, and signed and acknowledged before me, and surety approved by me, this day of , a. d. 18 — . G. BE., Justice of the Peace. Sec. IV. Action on the undertaking for costs. As the statute gives no specific remedy upon the undertaking, it was of course intended that an action should be brought upon it, as upon other contracts. In issuing and the service of summons in the action, the jurisdiction of the justice is co-extensive with the county .= The extent of the liability of the surety in the under- taking is this : If the plaintiff in the original action recovers judgment for costs against the defendant, the surety of tho (b) Eev. Stat., ? 6702. (c) Eey. Stat., g 587. See ante, p. 13. 24 SECURITY FOE COSTS IN CIVIL ACTIONS. [CHAP. The undertaking, and action thereon. plaintiff will be responsible only for the costs _made by the plaintiff, if upon execution issued they can not be made from the defendant. On the other hand, if the defendant recovers judg- ment for costs from the plaintiff, the surety will be liable for the costs in the action, if, upon ezecution. issued against the plaintiff, they ?.an not be made from him, or there is a return of no goods It may not be necessary, but it is proper, to demand the costs of the surety before bringing an action upon the undertaking. rfV.] ACTION AND JOINDEK OP CAUSES OF ACTION. 25 Naming the action — What causes of action may be united. CHAPTER IV. OF THE ACTION, AND JOINDER OF CAUSES OF ACTION. Sec. I. Naming the action. n. Joinder op different causes op action in one action. ■Sec. I. Naming the action. Before the adoption of the civil code, there were different forms of action, such as Assumpsit, Debt, Trover, Covenant, etc. These were abolished by the code, and in their place it is provided that, thereafter, there should be but one form of action, which should "be called a civil action.* This provision of the code may be deemed applicable to suits before justices of the peace,'' as there is nothing in the nature of the proceedings before justices that should, either before or since the adoption of the code, require the common-law name of an actioD to be stated. Naming the old form of action on the docket, or in the process or proceedings, will not prejudice either party, and can not be made .a ground of objection. Sec II. Joinder op different causes op action in one action. When a person has several different causes of action against another, the question whether he may unite them all in one action. Is determined by the following rules :"= EuLE I. A plaintiff may unite in one action all causes of action upon contracts, express or implied,* if such causes of action affect all the parties to the action, and do not require different places of trial. (a) Kev. Stat., § 4971. (d) As to what is an express or im- (b) Eev. Stat., g 6705. plied contract, see reference in (c) Eev. Stat., g 6019. Index, title Contract. 26 ACTION AND JOINDER OF CAUSES OP ACTION. [CHAP. What causes of action may be united. Thus, one action may be brought, and include an account, a note, verbal and written contracts for labor, or for goods, a bill of exchange, a bond, etc. The causes of action must in general affect all the parties to the action; that is, all the plaintiffs must be interested in and entitled to recover on each of all the contracts, express or implied; and all the defendants must be liable on each of all the contracts, express or implied, so united'in one action, for instance, a claim which the defendants are jointly bound to pay can not be joined in th& same action with a claim which some or one only of the defendants- is bound to pay. But a sole surviving creditor (as a surviving- partner) may join the partnership claim with a claim due to him individually, for then he is individually interested in both claims. EuLE II. When several causes of action exist upon a single- transaction, or transactions connected with the same subject of action, they may all be united in one action, if such causes of action affect all the parties to the action, and do not require different places of trial. EtJLE III. Injuries with or without force to property, real or personal, may all be united in one action, if such causes of action affect all the parties to the action, and do not require different places- of trial. Rule IV. Claims to recover possession of personal property,, with or" without damages for the withholding thereof, may be -united in one action, if such causes of action affect all the parties to the action, and do liot require different places of trial. This last rule relates to the action of replevin. The reader will observe that the above rules are divided and numbered, so as to constitute four different classes and rules ; for the four classes' Of causes of action can not, as a mass, be all united in one action ; on the contrary, each rule is separate and stands by itself, and the causes of action, united in one action, must belong to one only of these four classes.(l) Thus, a trespass * ^ ... . ~~^^^^——^.^,^^ (1) The fpUp-wing are the provisions of the code, from which the above rules are extracted: " §. 5019. The plaintiff may unite several causes of action in the same peti- tion, -whether they be such as have heretofore been denominated legal or eguUa- ifle, or both, when they are included in e'ither one of the following classes : " 1. The same transaction, or transactions connected with the same subject of action. IT.} ACTION AND JOINDEE OF CAUSES OF ACTION. 27" What causes of action may be united. to real estate and a promissory note, if distinct and separate trans- actions, can not be united in one action. This would violate the- first and third rules. So, an injury to personal property, and an account or note not connected with the injury to the personal property, can not be united. This would also violate the first and third rules. The second rule, however, embraces any and. all causes of action which exist or directly grow out of a single trans- action or transactions connected with the same subject of action, if such causes of action affect all the parties to the action and doy not require diiferent places of trial, although they consist of trespass to real estate, violation of contract, etc. Thus, if in a single transaction a fraud or wrong has been committed by B. upon A., and in the same transaction B. violated a contract oi; promise made by him to A., and also injured A.'s property, all these causes of action may be united in one action by A. against B., under the second rule above stated.^ What is hereafter said as to the nature of a counter-claim, and the causes of action which may or may not be united in a counter- claim, is in general equally applicable to causes of action which a plaintiff may sue upon, in one action, under the second rule above mentioned.' The general provisions of the code, allowing several causes of action to be united in one action, are for the purpose of permit- ting a plaintiff, if he chooses, to have, as far as possible, andconsist- ently with the above rules, all litigation between him and the de- fendant determined in one suit.s (e) 8 Ohio St. 218. (g) 14 Ohio St. 306. (f ) See post, title Set-off and CorNTBB-CLAiM. "2. Contracta, express or implied. " 3. iDJuries [with or without force] to person and property, or either. " 4. Injuries to character. " 5. Claims to recover the possession of personal property, with or without damages for the withholding thereof. " 6. Claims to recover real property, with or without damages, for the i0ith- holdtng thereof, and the rents and profits of the same, and partition thereof, " 7. Claims against a trustee, by virtue of a contract or by operation o^ law.. " g 5020. The causes of action so united must hot require different places of trial, and, except as otherwise provided, must affect all the parties to the action." It will he perceived that the parts of the above provisions of the code in italic are not applicable to the jurisdiction of justices of the peace — a justice- not having the power to render chancery decrees, nor to take jurisdiction ot actions for assault and battery, libel or slander, or actions to recover real estate. :28 BILLS OF PARTICULARS OF THE PARTIES. [OHAP. In what cases and when to he filed. CHAPTER V. BILLS OF PAHTICULAES OF THE PARTIES. I. In what CASES TO BE FILED. II. When to be filed. III. Effect of not filing a bill of particulars. XV. Eequisites of a bill op particulars, and what mat bs proved under it. V. Docketing bills of particulars. VI. Amendment of bill, and terms op amendment. VII. Form op bill op particulars. VIII. Counter-claim and form op bill op particulars thereof. XX. Costs in action on item omitted in bill. 'Sec. I. In what cases bill op particulars to be filed. That part of the code of civil procedure which relates to the pe- tition and other pleadings in courts of record, is not applicable to proceedings before a justice. Bills of particulars filed with a justice take the place of pleadings in the higher courts. In all cases before a justice, the plaintiff, his agent or attorney, must file a bill of particulars of his demand ; and the defendant, if required by the plaintiff, must file a bill of the particulars ho -may claim as a set-off.* Sec. II. When to be piled. The plaintiff should file his bill of particulars before the sum- juons issues. It must be filed before the trial.* The defendant, within a reasonable time after he is required by the plaintiff to do so, must file a bill of the particulars of his set-off. The plaintiff, at any time before the trial, but not after- wax d, may require such bill to be filed by the defendant. It can jiot be filed after the trial has commenced, except by consent.' (a) Bev. Stat., ?§ 6526, 6577. v.] BILLS OF PAETICDLAES OF THE PARTIES. 29' Bflfect of not filing — Eequisites. Sec. III. Effect of not filing a bill of particulaes. If, after the trial commences, it is found that the plaintiff has neglected to' file a bill of particulars, judgment that the action be dismissed without prejudice to a new action may be entered with costs ; or, if the defendant request it, a bill may be then filed, arid the cause proceed to trial and judgment on the bill of particulars.* If the defendant, having been required, neglect to file a bill of the particulars of his set-off, he can not be permitted to give proof of set-off, luiless the plaintiff consent that a bill of particulars be • filed, or waive such biU.'' Sec. IV. EEQaisiTES of a bill of particulars, and what mat be PROVED UNDER IT. The bill of particulars must state, in a plain and direct manner,, the facts constituting the cause of action, or the claim to be set off. The object of the bill is to apprise the opposite party of the evi- dence which is to be offered, so that he may be prepared to resist the claim." A mistake, therefore, in the statement of an item or demand, is not material if it will not mislead or take the opposite party by surprise. If, however, an item or claim be entirely omit- ted, proof of such item or claim can not be given until the bill of " particulars is amended.'^ The plaintiff caji not be permitted to prove or to recover, nor can the defendant be permitted to prove or set up a claim by way of set-off, out of or beyond the contents of his particular.'* If, how- ever, either party; in attempting to defeat the particular claim or set-off of his adversary, give evidence which in fact makes a better- case than the bill of particulars, the opposite party must have the benefit of such evidence, but can not, by means of it, claim an amount beyond the original amount named in his bill of particu- lars,® unless he amend his bill. The plaintiff may prove the payment, release, or discharge of any item or claim of set-off, and that, too, without having named the payment in his bill of particulars; for the plaintiff need not set forth in his bill any matters which are unnecessary to make out. his case, and which are only proper to rebut the set-off of the de- fen dan t. (b) Eev. Stat., §? 6526, 6577. (d) Kev. Stat., ?§ 6526-6528, 6577. (c) 5 Wend. 48. (e) 1 Camp. 68. 30 BILLS OP PAKTICULARS OP THE PARTIES. [CHA*. Docketing, amendment, and form of bills of particulars. The defendant can give evidence of set-off without filing a bill of particulars, if the plaintiff has not required him to file such bill. . And the samo may, I presume, be said of a counter-claim. Sec. V. Docketing bill op particulars. The fact of the filing a bill of particulars by the plaintiff or do fendant must be noted by the justice on his docket. He must also note on his docket the nature of the bill of particulars, and when not of too great length, he must enter the bill of particulars in full on the docket.' • Sec. VI. Amendment op bill, and terms op amendment. The bill of particulars may be amended at any time before tbe trial, or during the trial, or upon appeal, to supply any deficiency or omission in the items, when by such amendment substantial jnstice will be promoted.^ If the amendment be made at the time of or during the trial, ;and it appear to the satisfaction of the justice, by oath, that an adjournment is necessary to the adverse party, in consequence of such amendment, an adjournment must of course be granted.^ A justice may, in his discretion, when an adjournment is made necessary by the amendment, require, as a condition of the amend- ment, the payment of such portion of the costs as he may deem right. If, however, an adjournment is not made ftecessary by the amendment, the justice must permit the amendment without costs.* :Sec. VII. Form op the bill op particulars. The bill of particulars of the plaintiff is usually headed thus : [^No. 5.] A. B., plaintiff, ") V. [ Bill of Particulars. Before G. H., j. p. C. D., defendant. ) The plaintiff claims a judgment against the defendant for the sum of $ , with interest from the day of , a. d. 18 — [for or on — Here copy the note or contract, or state its substance; or state the claims as in the forms for the statement of causes of action .in an affidavit, post Chap. .■?, sec. 5, together mjiYA dates, amount, etc."] A. B. (f ) Bev. Stat., ? 594. (g) Eev. Stat., § 6528. v.] BILLS OF PAKTICtTLARS OP THE PAETIE8, 31 Porms of a bill of particulars of a set-offi If there is a running book-account, it may be stated in the usnal form adopted when an account is made out in detail, for settlement or collection. The bill of particulars of the defendant may be made out in the same general form as that of the plaintiff. No. 6.] Form of a Bill of Particulars of a Set-off. A. B., plaintiff, | Before G. H., j. p. J^' , „ , ' f Bill of particulars of the defendant. The defendant's claim of set-off' in this action is as follows : Here state the substance of the claims, as in forms for the statement of causes of action in an affidavit, for which see post. Chap. X, sec. 5, ■giving dates and amount of each item, and add up the whole. If the ■set-off is a note, give its substance or a copy.* The defendant claims a judgment accordingly. [Signed,] " CD. It must not be understood that it is necessary to follow precisely "the above, or any particular form; for it is expected that parties will make out their own bill of particulars, and not be compelled to employ counsel for that purpose ; and as amendments will be allowed even during the trial, and, in general, without costs, the form of the bill is not of much consequence, if it substantially state "the facts constituting the cause of action or set-off. Sec. VIII. CotTNTEE-CLAIM AND FORM OP A BILL OP PARTIOULAES THEREOF. A counter-claim is a cause of action which the defendant has Against the plaintiff, arising out of the contract, injury, wrong, or transaction set forth in the bill of particulars of the plaintiff as the foundation of his claim or connected with the subject-matter of the plaintiff's action.'' The nature of a counter-claim, the difference between it and a setoff, and the cases in which it may or may not be set up by the defendant, are stated in the chapter upon Set-off and Counter- claim. Its allowance as a defense was provided for by the code regulat- ing proceedings in courts of record. That code was enacted before (h) Eev. Stat., ? 5072. 32 BILLS OF ,PARTICULAI18 0¥ THE PARTIES. [CHAF. Form of for counteT-claim and set-oflT and for oounter-olaim only. the justices code, and although the latter does not expressly require- a counter-claim to be set up in the bill of particulars of the defend- ant,' yet it will be seen by the next section of this chapter that the law at any rate recognizes the filing of such bill, and seeins constructively to require it, if the plaintiff demands it. If a bill of particulars of a set-off or counter-claim has been filed before the dismissal of the case by the plaintiff, the defendant may, after such dismissal, proceed to trial and judgment on his bill of particulars.J It is therefore best for the defendant, in the absence of any stat- ute expressly requiring it, to file a bill of the particulars of any counter-claim which he intends to give in evidence. JVb. 7.] Form of Bill of Particulars of Set-off and Counter-claim. Follow the preceding form from the beginning to the asterisk (*),. and then proceed as follows : The defendant also counter-claims for the following causes (or, cause) of action in his favor against the plaintiff, and which arose out of and were (or, was) connected with the cause of action alleged': in the plaintiff's bill of particulars, to wit : Sere state the counter-claims, as before directed, in respect of a set- off The defendant claims a judgment accordingly. [Signed,] C. D. Where the defendant has no set-off, but a counter-claim only, he: can state it as follows : No. 8.] Form of BiU of Particulars of Counter-claim only. } A. B., plaintiff, | Before G. H., j. p. C^T> defendant i "^'^^ °^ particulars of the defendant. The defendant counter-claims for the following causes of action. in his favor against the plaintiff, and which arose out of and are (i) Eev. Stat.. § 6577. . (j) Eev. Stat.. §6577. V.J BILLS OP PARTICtTLARS OF THE PARTIES. 33 !Form of bill of particulars for counter-claim only. connected with the causes of action alleged in the plaintiff's bill of particulars, to wit j Here state the counter-claims, as directed in the preceding form, No. 5. The defendant claims a judgment accordingly. [Signed,] CD. Sec. IX. Costs in action on item omitted in the bill. If a party omit to set up in his bill of particulars any item which lawfully could be made part of the cause of action, set-off, or coun- ter-claim, the party making such omission can not recover costs of the adverse party in any subsequent action thereon ; but this pro- vision of the statute is not applicable to any item which may be stricken out by the justice, or withdrawn by either party by his consent." The lawful item above mentioned is one that could under the law have been sued, set off, or counter-claimed, in the prior action, and, if proved, allowed in that action. (a) Bev. Stat., g 6527. 34 PILING AND INDORSING PROOFS OP INDEBTEDNESS. [CHAJ*. Piling proofs, and indorsements thereon. CHAPTER VI. PILING PEOOFS OF INDEBTEDNESS, AND INDOES- ING SAME. In all actions founded upon a bond, note, or any other instrument of writing, whether under seal^or not, for the payment of a sum of money certain, upon which the whole amount of money therein promised is due, the plaintiff, his agent or attorney, must file such instrument, upon which suit is brought, with the justice. If, on the trial, judgment is entered thereon for the plaintiff, the justice must retain the instrument and indorse thereon the amount for which he renders judgment, and sign his name to such indorse- ment. Upon payment, or tender of the amount of the judgment and costs, or putting in bail for the stay of execution, the instru- ment, whatever may be its amount, will be deemed satisfied ; and no action can afterward be brought upon it. If, however, an appeal is taken, the justice must transmit or deliver the instrument, bills of particulars, original papers, and all written evidences produced on the trial before him, to the clerk of the court of common pleas, on or before the second day of the term of the court next after taking such appeal.* If the instrument is a joint and several one, the indorsement of the justice should show against whom his judgment is rendered; and the plaintiff, if he desires to prosecute any other than the party against whom the judgment is rendered, will then be entitled to the possession of the instrument." As a defendant may withhold setting off a part of his claim against the plaintiff, in such case the indorsement should show how much has been set off. (a) Eev. Stat., § 6703. VII.] PARTIES TO ACTIONS. 35 Who must be plaintiffs. CHAPTER VII. PARTIES TO ACTIONS. Sec. I. Who must be plaintiffs. 11. Who must be defendants. III. Op the consequences of an'omission ok mistake in making PAETIES PLAINTIFF OK DEFENDANT ; AND OF MISTAKES IN THEIR NAMES. IV. Of THE CONSEQUENCES OF THE DECEASE, ETC., OF PARTIES, OR THE ASSIGNMENT OF THE CLAIM, WHILE A SUIT IS PENDING. Sec. I. Who must be plaintiffs. Before the adoption of the code, an assignee of a contract or claim, other than negotiable bonds, promissory notes, and bills of exchange, although made payable to order, bearer, or assigns, could not sue upon it in his own name. To change this rule, and permit the assignee of accounts, contracts, and other claims, to sue upon them in his own name, it is provided by the code that " evfery action must be prosecuted in the name of the real party in interest."' So that now, if an account, contract, or other demand, is assigned by the original party thereto, an action thereon can not be maintained by him, but the assignee must sue. Such assignment may be by sale and mere delivery, or by transfer in jrriting; no particular form being required to make the assignment perfect.(l) In general, therefore, the person who is entitled in equity and justice to the proceeds of a claim when collected, is the proper party to sue. Hence, when the plaintiff in attachment has assigned the judg- ment, the assignee may sue the garnishee in his own name."" (a) Bev. Stat., § 4993. (b) 18 Ohio St. 134. (1) As to assignment of choses in action, see post. Part 2, title Assignment or Claims, etc. On a promise by A. to B. to pay C. a sura of money, C. may sue. 7 Oliio St. 360; 3 Id. 539 ; 30 Id. 6. 36 PARTIES TO ACTIONS. [CHAP. ■Who must be plaintiffs. So, if the lessor assign the lease, his assignee may sue for a breach of the covenants of the lease." In general, the assignee of an account or other non-negotiable(l) claim may sue thereon without making the assignor a party to the action.* The title, however, of the plaintiff to the subject- matter of the action must, if denied by the defendant, be estab- lished by the plaintiff on the trial. (1) In a suit upon a note or bill of exchange made payable to sev- eral payees, if one of them become bankrupt, the assignee of the bankrupt should unite with the other payee in the action ; and if a bankrupt is sole payee of a note or bill, the suit may be in the name of the bankrupt for the use of the assignee.^ But it often occurs that a contract is made directly with one person, for the benefit of another, and the person for whose benefit the contract is made is, in fact, the real party in interest. Such Cases are an exception to the above rule that the real party in interest must sue. For, if a contract is made with A., for the ben- efit of B., or in the name of A., for the benefit of B., the suit may by the express provisions of the code, be brought by A., and with- out joining with him, as plaintiff, B.,' or B. may sue.s The mere holder of paper for collection can not sue in his oWn narae.^ So, where an estate, or rights and powers, are conferred upon A., expressly in trust and for the benefit of B., so that A. is merely a trustee, and B. is entitled to all the benefit of contracts made with A., an action may be brought by A., without joining with him, as plaintiff, B., for whose benefit the suit is prosecuted. (2) Officers, also, may sue in such name as is authorized bylaw; and official bonds may be sued upon in the same way.' (c) 9 Ohio St. 340. (f ) Kev. Stat, g 4994. (d) 11 Id. 374. (g) 4 Ohio St. 333; 6 Id. 553. (e) 8 Id. 284. (h) 26 Id. 425. (1) See title Promissory Notiis, etc. (2) As to suits upon certified copies of official honds by persons injured or entitled to the benefit of the security and their right to protecute separate suits thereon, see Eev. Stat., § 4994. ■^ 4995< An executor, administrator, guardian, trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or a person expressly authorized by statute, may bHng an action with- out joining with him the person for whose benefit it is prosecuted. VII.] PARTIES TO ACTIONS. 37 "Who must be plaintiffs. "Where a statute expressly authorizes a certain person or officer to sue, the directions of the statute should be pjirsued.s When the personal property of a deceased person has been injured or converted, either before or after his decease, his executor or administrator should sue therefor. Of course, an executor or administrator can sue as such upon the claims of the decedent. A note, payable to A. B.^ administrator of 0. D., should probably, on the death of A. B., be sued by his executor or administrator.'' For injuries to lands or tenements of a deceased person, during his lifetime, the suit should be brought by his executors or admin- istrators ; but if done after his death, the suit should be brought by his heirs, as they alone are entitled to control over the real estate.' Emblements-^that is, an nual cultivated crops raised by labor^rrr^and whether severed or not from the land of the deceased,' are assets in the hands of the administrator. Crops put in after- ward belong to the heirs. Whichsoever is entitled to the emble- ments, or crops, must sue for an injury done to them. In general, all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiifs, except as hereinbefore mentioned.J Formerly, if one or more of those jointly interested died, an ac- tion could only be brought in the name of the survivors. But now, as all persons having an interest in the subject of the action, may be joined as plaintiffs, the executor or administrator of the deceased may be joined with the survivors, or the survivors may sue alone.* When property of different persons is taken or injured, although at the same time and by the same act and person, they must sue separately. Those who are united in interest must be joined as plaintiffs ; but if the consent of one who should have been joined as plaintiff can not be obtained, he may be made defendant, the reason being stated in the bill of particulars, or upon the docket.' When the question is one of a general and common interest of many persons ; or, when the parties are very numerous, and it is (f) Eentsof landof aninsolvent intes- ducts, such as grass, clover, tate. accruing after his decease, fruits, and the lilce, are not em- belong ,to the heirs. 29 Ohio blements. St. 230. ( j) Eev. Stat., ? 5005. (g) Eev. Stat., ? 4994. (k) Eev. Stat., ?? 5006-5008. (h) 7 Ohio (pt. 1), 268. ( 1) Bev. Stat., g 5007. See post, p. 365. (i) Eev. Stat., § 6026. Annual pro- 38 PARTIES TO ACTIONS. [CHAP. Who must be plaintiffs. impracticable to bring them all before the court, one or more may sue for the benefit of all." In such ease the plaintiff will bo named on the docket, and in the summons, thus : "A. B.," (the name of the plaintiff,) "who sues for the benefit of himself and others, having a common interest in the subject-matter of this action, and who are very numerous, and it is impracticable to bring them all before the court as plaintiffs herein."' The bill of particulars should also show that the subject- matter of the action is such as would entitle the parties having a common interest, were they all before the court, to maintain the action in their own right, or in their own names." As to actions by infants and married women, see post, Infants, Husband and Wipe. Municipal corporations sue and are sued by their name of incor- poration, thus : " The City of ," or " The Village of ," or " The Hamlet.of ," filling the blanks with the name." A county infirmary thus : " The Board of Directors of the County Infirmary of P County." Houses of refuge thus : " The Board of Direct- ors of the House of Eefuge and Correction of County," i fill- ing the blanks with the proper county. A state benevolent i nstitution sues in its name.' The penitentiary by its name, " The Ohio Penitentiary v. A. B." = Townships in the name of the township, thus : " The Township of ," ' or in the name of " The Trustees of Township," without naming them individually I'' but if named, a court on error will regard the indi- vidual names as mere surplusage.' Suits relating to common schools must in general be brought in the name of " The Board of Education of — ^" [^describing official district], " in the county of ." " A suit can not be brought by one county against another, unless authorized by law.'' In general, suits by quasi corporations, such as county commis- sioners, etc., should sue and be sued in the name in which the cor- (m) Kev. Stat., § 5008. (t) Key. Stat., § 1376 | 5 Ohio, 185 ; (n ) 4 Sand. S. C. 657. 18 Id. 365 ; 8 Id. 174 ; 3 Id. 227. , (o) Rev. Stat., § 1552. (u) 8 Ohio, 174. (p) Bev. Stat., § 961. (v) 8 Ohio, 227. (q) Eev. Stat., J? 2081, 2032 (w) Eev. Stat., g 3971. (r) Rev. Stat., § 630. See § 746. (x) 24 Ohio St. 393. (s) Bev. Stat., I 7436. VII.] PARTIES TO ACTIONS. 39 Who must be defendants. porations are described in the statute conferring on them the power to sue and to be sued.'" I Sec. II. Who must be defendants. i Any person may be made defendant who has, or claims, an in- I terest in the controversy adverse to the plaintiff, or who is a neces- sary party to the complete determination or settlement of the question involved therein.^ Those who are united in interest must be joined as defendants.' So, those who are jointly liable upon the same obligation or in- strument, must, in general, be joined as defendants." If I owe a claim as solo surviving debtor, I may be sued for this and in the same action for a debt due from me alone, or due from me jointly and severally with others ; for, on such claims I am liable individually. By the common law, and before the adoption of the code, where there were two or more persons jointly and severally bound by contract, it was necessary to sue all jointly, or all separately. (1) But this rule is now changed, so that all, or any of those severally (w) 8 Ohio, 174. Where an official obligee named therein. 2 Ohio, bond i% by mistake, executed 409. See Kev. Stat., ?§ 7, 1738. to the wrong officer or corpo. (x) Kev. Stat., § 5006 ; 31 Ohio St. rate body, it is still, in general, 406. valid as a common-law bond, (y) Bev. Stat., J 5007. and should be sued by the (a) 81 Ohio Si 572. (1) Persons are said to be jointly and severally bound and liable on a con- tract, when, by the terms of the contract, they bind themselves jointly to per- form it, and each also severally bind themselves to perform it. Thus, these words in a contract, " We, or either oe tts," covenant, promise, etc. ; or these ■words, "We jointly and severally" promise, etc.; or these words, "We AND EACH OF Tjs" promise, etc., or any words which indicate that the parties severally and jointly promise, bind the parties jointly and severally. Thus, a bond in these words, " Know all men by these presents, that we, A. B. and C. D. are held and firmly bound unto B. P. in the sum of three thousand dollars, for the payment of which we hereby bind ourselves, firmly and severally, by these presents," is a joint and several bond. 17 Ohio, 96. But if the language of the contract expresses only a joint obligation, as thus, "We" promise, etc. ; or, "We jointly" promise, etc.; or, "The trNDBRSioNED hereby agree and PROMISE," the parties are jointly bound, and can not be sued separately, be- i cause each do not, in such case, severally promise to perform the contract. Where a note is signed by two or more, and in the body of it the promise pur- pDi-ts to be made by one only, thus, "For value received, I promise," etc., it is the joint and several promise of all. 6 Mass. 519; 7 Id. 58; 21 Ohio St. 163. 40 PARTIES TO ACTIONS. [CHAP. Mistakes therein^ and how corrected. bound may be included in the same action ; for the code provides that persons liable on the same note, bond, or other instrument, including the makers, indorsers, etc., to bills of exchange and prom- issory notes, may, all or any of them, be included in the same ac- t-ion, at the option of the plaintiff.^ When two or more have done a wrong, the plaintiff may elect to bring either a joint or separate action against them, and he may have separate actions against each ; but can have but one satisfac- tion. A person promoting, aiding, or assisting, directly or indirectly, in tho commission of an injury to real or personal property, is liable (though he were not present at the time the injury was com- mitted), in the same manner, and to the same extent, as if actually engaged in committing the whole wrong.* "When the question is one of a common and general interest of many persons, or when the parties are very numerous, and it is impracticable to bring them all before the court, one or more may defend for all.*" Sec. III. Op the consequences op an omission or mistake in MAKING PARTIES PLAINTIPP OR DEPENDANT, AND OP MIS- TAKES IN THEIR NAMES. (1) If there be such a defect of parties, plaintiff or defendant," that the controversy betw een the parties to the action can not be de- termined without prejudice to the rights of others, or by saving their rights, then the action can not proceed until such other per- sons are made parties, and brought in ; and if to be made defend- ants, not until the issuing and service of process against them. The provisions of the code upon this subject are as follows : " The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights ; but when a determination of the contro- versy can not be had without the presence of other parties, the court may order them to be brought in, or dismiss the action with- out prejudice." This provision of the code in practice will be frequently applied, (z) Eev. Stat., i? 5009, 6102; 5 Ohio (b) Kev. Stat., § 5008. St. 586 ; 26 Id. 330. (c) Bev. Stat. § 5013. (a) 5 Ohio, 251. (1) See also post, Chap. IX., sec. 3. VII,] PARTIES TO ACTIONS. 41 Mistakes therein, and how corrected. in courts of record, to suits relating to equitable rights, over which courts of equity formerly took jurisdiction. It is, however, equally applicable to actions of all kinds. When a person sues as plaintiff who has no right to bring the action, he must be nonsuited, or judgment must be rendered against him.'' If there be two or more plaintiffs, and it appears on the trial that any one of them has no right of action, his name may be stricken out of the case, and the action proceed in favor of the other plaintiff or plaintiffs.^ In such case, the entry on the docket may be thus : " On motion, of the plaintiffs, the process and pro- ceedings, etc., herein, are amended by striking out the name of A. as one of the plaintiffs, he having no right of action in the prem- ises." On the other hand, if a person who should have been joined as a co-plaintiff is omitted, his name may be added, and the case pro- ceed in the name of the co-plaintiffs.« The entry on the docket in such case may be thus : " On motion of the plaintiff, the process and proceedings, etc., are amended by adding A. as co-plaintiff." When, however, the subject-matter of the action is such that the rights of the person omitted as a plaintiff will not be prejudiced by proceeding to trial and judgment, or his rights can be saved, it is unnecessary to correct the omission.' If a person is omitted as co-defendant who should have been sued, an aniendment may be made, as already stated, by making him a party ; and in such case, a summons should be issued and served upon him so that he may have an opportunity to defend the suit.e The entry on the docket in such case may be thus : " On motion of the plaintiff, and it appearing that C. should have been made a co-defendant in this action, it is ordered that he be made a co-defendant herein, and that a summons issue against him, returnable on the day of next ; and this cause is adjourned to " {naming day of trial). " Summons issued accord- ingly, returnable as above mentioned, and delivered same to C. C, constable." If there be too many defendants, the plaintiff will bo permitted to amend, and strike out the names of such as have been made de- fendants by mistake ; and the entry on the docket in such case (d) Eev. Stat., ? 5062. (f ) Bev. Stat., § 5013. (e; Eev. Stat., §J 5114, 5014. (g) Eev. Stat., §? 5013, 5114, 5014. 42 PAETIES TO ACTIONS. [CHAP. Decease of parties while suit is pending. laaj bo, in substance, the same as just stated, where the name of a plaintiff is stricken out, substituting the name of the defendant for that of the plaintiff.s These amendments are made upon such terms, as to costs, etc., as the justice may deem proper and right. If the action is brought upon a contract against two or mere, and it turns out on the trial that only one or more of the several defendants in such joint action is liable, judgment may be rendered agi'.inst such as may be liable on the contract, and dismissed as to the one or more not liable.'' When there is but one defendant to the action, and the proof on the trial shows that some other person, instead of the party defend- ant, should have been sued, the plaintiff must fail in his action ; for in such ease, an amendment can not be made by striking out the name of the defendant, and substituting the name of another person. If the right person sue or be sued, but a mistake is made in the name, it may be corrected at any time.' The entry upon the docket in such case may be thus : " It appearing that a mistake has been made in the process and proceedings, etc., herein, in the name of the plaintiff" [or say, " in the name of the defendant," as the case may be,"] " and that his true name is John Styles instead of Job Styles, as in said process, etc., it is, on motion of the plaintiff, or- dered that said mistake be corrected, which is done accordingly." Sec. IV. Of the consequences of the decease, etc., of parties, OR assignment of claim, while a suit is pending. The causes of action over which justices have jurisdiction do not, in general, cease or determine by the death of the original parties ; so that, upon the death of the original party, or both parties, the' action may be brought by or against the executor or administrator of the decedent. J (1) When a sole plaintiff or defendant dies during the pendency of suit in the court of common pleas, where the cause of action sur- (g) Eev. Stat., §§ 5018, 5114. ( i) Eev. Stat., § 5114. (h) 10 Ohio St. 450; 27 Id. 674; 26 (j) Kev. Stat., § 4975. Id. 141. (1) A suit against a justice of the peace for misconduct in office, and actions for slander, libel, malicious prosecution, assault, assault and battery, for a nuisance, and over which justices have no jurisdiction, abate by the death of the defendant. Kev. Stat., § 5144. VII.] PARTIES TO ACTIONS. 43 Decease of parties while suit is pending. vives, it may be revived, by motion of the representatives of the deceased to become a party. So the adverse party to the deceased may obtain a conditional order in that court for the revival against the representatives of the deceased party, suggesting the death and the name of his executor or administrator.(l) Notice of such motion or conditional order must be served on the adverse party in like manner as a summons, (1) and suit before a justice could be jn like manner revived, but it is unusual, and the common practice is to make an entry on .the docket, thus: "A. B., the plaintiff [or, the defendant], having died, the case was not revived and abated." Each party will be liable to pay their own costs. But if there be two or more plaintiffs, or two or more defendants, and one or more of the co-plaintiffs or co-defendants dies, the death may be suggested on the docket, and the case proceed, for or against the survivors, to trial, judgment, and execution. The docket entry may be thus : " March 1, 18 — . The death of the defendant, C. D., suggested by the plaintiff." If, however, one of the defendants in an action on a joint con- tract dies before judgment, and the judgment is taken against all the defendants, without the above suggestion of death, and mak- ing his representatives parties, such judgment is valid against the survivors, and the executor or administrator of the deceased de- fendant is the only one who can proceed on error to reverse it ; for it is not erroneous to the prejudice of the other defendants.' As to marriage or disability of a party, etc., the reader is re- ferred to the code.™ (1) 24 Ohio St. 87. (m) Eev. Stat., § 5012. (1) Eev. Stat., §§ 5148, 5149. See forms, post, p. 218; and the form also of the conditional oi'der, service, and docket entries, etc., post, p. 315 to 318, will readily suggest the necessary forms. The motion to make administrator plaint- iff' may be thus : " April . A. A. suggested the plaintiff's death, and moved that he be made plaintiff' as administrator of the deceased, and showed his let- ters of administration, and gave satisfactory proof of due service of notice of this motion on the defendant. Motion granted, and A. A., as said adminis- trator, made plaintiff'." 44 PEOCESS AND BLANKS THEREIN. [CHAP. Mesne and final process. CHAPTER VIII. PROCESS, AKD BLANKS THEREm. There are two binds of process — mesne and final. Mesne pro- cess comprises such writs as are issued before judgment; final, such as are issued upon a judgment. Formerly, writs were issued with a scrawl seal annexed to the signature of the justice ; but now the signature only of the justice is in general required. The summons, execution, and every other paper made or issued by a justice, must be filled up without a blank to be filled by an- other ; otherwise it is void.'' It is not meant by this provision of the statute that process or papers will be void which contain blanks, but only when a blank is left in any process or any paper, for the purpose and with a view to its being filled up by a third person, after it is issued. Such was probably the law before this enactment. (b) Kev. Stat , g 602. IX.] THE COMMENCEMENT OF AN ACTION. 45 How in general commenced. CHAPTER IX. OF THE COMMENCEMENT OF AN ACTION. Sec. I. How in general commenced. II. In what cases the summons mat issue against a won- RESIDENT OP THE TOWNSHIP OR COUNT T. III. EeQUISITES and form of SUMMONS, AND INDORSEMENTS THEREON. 1. Description of the writ. 2. When returnable. 8. Form of summons. i. How parties desorihed in summons. 5. Statement of cause of action in summons. 6. Form of indorsement on summons. IV. Op the service and return op the summons. V. Forms op returns to summons. Seci, I. How in general commenced. Upon the plaintiff filing his bill of partictilai's of his cause of action, the suit is in general commenced by the justice issuing a summons. The parties, however, may enter their appearance, by agreement, without a summons.* The issuing of an order of arrest, or an attachment, at the time of the commencement of the suit, (|oea43nt fHapeiiiito with the issuing of a summons ; for the order of arrest, or an attachment, may ac- company the summons, or be allowed and issued afterward. The subject of this chapter will be the issuing, service, atid re- turn of the summons ; and in the next chapter will bo found the law relating to the allowance, issuing, service, and return of an order of arrest before judgment. When the parties agree to enter an action without process, an entry thereof is made on the docket, and the action is proceeded (a) Eev. Stat., g 6473. See form of docket entry, post, Chap. XIX. 46 THE COMMENCEMENT OP AN ACTION. [CHAP. The sumjnons — Issuing against non-resident, etc. in, to trial, judgment, and execution, and the right of appeal ex- ists, as if a summons had been issued, served, and returned.'' • The form of the docliet entry, when the action is commenced by the appearance and agreement of the parties, will be foand in the chapter relating to docket and files. Sec. II. In what oases the summons mat issue against a non- resident OP THE township OK COUNTY. Any person who is not a resident of the county may be gjoed in another county, if a summons can b§ served upon him in the town- ship where it is issued." So a resident of a county, who is neither a householder nor free- holder, may be sued in any township of such county, if a sjuasjons cgip b^ serjgd upon him within the township where it is issued." In general, however, no person who is a householder, or free- holder, resident of a county, can be held to answer to a suit bi'ought against him in any township of such county, other than the one where he resides, except in the cases following, namely :" 1. When there is no justice of the peace for the township in which the defendant may reside ; or, 2. When the only justice residing therein is interested in the controversy ; or, 3. When he shall be related, as father, father-in-law, son, son-in- law, brother, brother-in-law, guardian, ward, uncle, nephew, or cou«in, to either of the parties, and there is no justice in the town- ship competent to tr'y the cause. ■" In the foregoing excepted cases, the action may be brought before any justice of an adjoining township of the same county, and the justice must state on his docket the reason of his taking juris- diction. 4. When the summons is accompanied with an order to attach property, the jurisdiction is co-extensive with the county. 5. In cases of trespass to real or personal property, the action maybe brought in the township where the trespass was committed, or in the township where the trespasser or any one of several trespassers reside. 6. When two or more persons are jointly, or jointly and sev- erally bound in any debt or contract, or otherwise jointly liable in the same action, and reside in different townships of the same (b) Kev. Stat., ? 6546 (c) Ksv. Stat., § 584. As to suing a witness attend- ing, etc., out of his county, see Kev. Stat., § 5259. As to suing member of gen- eral assembly, see Rev. Stat., § 5034. IX.] THE COMMENCEMENT OF AN ACTION. 47 Description of summons. county, the plaintiif may commence his action before a justice of the township in which any of the persons. liable reside ; except that in joint actions against the makers and indorsers of notes, due-bills, or bills of exchange, the action must be commenced in. the town- ship where one of the original makers, drawers, or indorsers reside ; and if it be claimed by the plaintiff that an indorser indorsed the note or bill at the time it was made, and the jurisdiction depend Ihoreon, before the justice takes jurisdiction the plaintiff, or some some person for him, must file an affidavit setting forth that fact.(l) The affidavit is necessary only when all the parties to the note, due-bill, or bill of exchange, who are jointly sued, except indorsers, reside out of the township ; for if any of the makers or drawers of the note, due-bill, or bill of exchange reside in the township, the jurisdiction of the justice does not depend upon the fact whether the indorsers reside in the township or elsewhere. When the action is thus brought against two or more parties to such joint contract, or against the makers, indorsers, etc., of notes, due-bills, or bills of exchange, the summons is issued and served upon all the parties who reside in the county, and the same pro- ceedings are had as if all the parties served resided in the town- ship. Sec III Eequisites and form of summons, and indorsements THEREON. 1. Description of the writ. — This writ is best described by 'the provisions of the statute, thus : * The style of the summons shall be : " The State of Ohio, county." It shall be dated the day it is issued; signed by the justice issuing the same ; directed to the constable of the proper (d) Eev. Stat., g 6475. (1) Eev. Stat., g 584. The above is the language of the statute. The reader will observe that the word " indorsers" seems to describe original parties only to the note or bill ; or, at least, indorsers who made their indorsement at the time the note or bill was made. It will be observed that under section 583 of the statutes, the jurisdiction of justices is made co-extensive with the county, in proceedings against security foi costs and bail for the stay of execution ; in proceedings against constables for failing to make return, and making a false return, or failing to pay over money collected on execution issued by the justice ; and to try an action of forcible entry and detention, etc. See ante, p. 13. 48 THE COMMENCEMENT OF AN ACTION. [CHAP. The summons— rWhen returnable — Its form. township (except in case a person be deputed to serve it, in which ease it shall be directed to such person) ; must contain the name or names of the defendant or defendants, if known — if unknown, give a description of him or them; and command the officer or person serving the same to summon the defendant or defendants to appear before such justice, at his office in township, at a time specified therein ; and must describe the plaintiff's cause of action in-such general terms as to apprise the defendant of the na- ture of the claim against him ; and there shall be indorsed on the writ the amount for which the plaintiff wilLtake the judgment if the defendant fail to appear. If the suit is against a railroad company, and its principal office is kept in another township of the same county, the summons must be issued and directed to any constable of the justice's township; but if there is no president, and no ticket office, or freight depot, or officer in charge of the same in the justice's' county, the justice should issue and direct the summons to the sheriff of the county where the principal business office is located, indorsing on the writ (the name of the post-office to which the writ shall be returned. The sheriff serves the writ on the president, if found, or by leaving a copy at the business' office of the company, with the person in charge thereof, and returns the writ by mail.* 2. When returnable. — The summons must be returnable not more than twelve days from its date.' ;. If an order of arrest is issued with the summons, then the sum- mons is made returnable forthwith. 3. \No. 9.] Form of summons. The State of Ohio, county. To C. C, constable of — ' — township, in said county: You are hereby commanded to summon C. D. to appear before me, G. H., a justice of the peace, at my office in township [forthwith, or if an order of arrest does not accompany the summons, instead of " forthwith," say .•] on the day of [the time here designated must not be more than twelve days from the date of the summons'], a. d. 18 — , at o'clock in the [forenoon, or say after- noon, as the case may be], to answer the action of A. B. [for or on, etc. Sere state the cause of action or nature of the claim; see the forms . (e) Kev. Stat., 5 6478. See post, p. 66. (f ) Rev. Stat., ? 6476. JX.] THE COMMENCEMENT OF AN ACTION, 49 How parties named in the summons, etc. given, post^ pp. 52-55]. The plaintiff aska a judgment for the i^mount indorsed hereon. You will make due return of this writ [on the day of . This should he on or before the day named for the appearance of the defendant, or forthwith, if an order of arrest accompanies the sum- mons.'] Witness my hand, this '■ day of [this should be the day ' the summons is issued or delivered to the constable], a. d. 18^^. G. H., J. p. 4. How parties described in the summons.— In general, the chris* tian and surname of the parties to an action should be written in full, in the summons and in the title of the action upon the docketi It will, however, be frequently found in practice that the parties to written instruments designate their christia/i names either by a contraction (such as Jos. Smith), or by the initial letter or letters (as J. Smith, or J. M. Smith; ; and that when an action is about to be brought, no certain information can be immediately obtained of the christian names of such parties. To prevent any embarrass- ment in this respect, the statute provide8,s that in all actions upon bills of exchange or promissory notes, or other written instruments, whenever any of the parties thereto are designated by the initial- letter or letters, or some contraction of the christian or first name or names, it shall be sufficient to. ^.design ate such person by th© same initial letter- or letters, or contraction of the first name or names, instead of stating the christian or first names in full.s An initial letter between the christian and surname, as M. in J. M.. Smith, should be retained when the action is brought under the provisions of the above statute ; that is, the exagt initials or contractions used in the bill, note, or written instrument, to desig- nate the parties, shoiild be used in the action. But, notwithstand-: ing the use of such initials or contractions in a bill, note, or written instrument, if the christian names are made known to a justice, the action had better be brought in the full christian names of the, parties. In general, the law knows of but one christian name, and if the first christian name be written out in full, the middle name maybe designated by the initial letter, or altogether omitted, although it (g) Eev. Stat., § 5010. ' 50 THE COMMENCEMENT OP AN ACTION. [CHAP. Mistakes in the names of parties, etc. is generally better, on account of greater certainty of identity, to give, in all cases, the initial letter of the middle name. Thus, in .an action by or against " George Washington Middleton," the name may be given as " George Middleton," or "George W. Middleton;" .and, to prevent any mistake as to the identity, the latter mode of ■designating the name seems the best. If a person be known as well by one name as another, he may •.sue or be sued by either name. So, if a person enter into a con- -tract, not under seal, and give himself a wrong name, he may be be sued by such name, but should be sued by his right name.*" If a persoA enter into a bond or other contract, under seal, and make & mistake in his signature, he must, it seems, be sued by such wrong name, and therefore can not object, on account of the mistake, be- fore or at the trial'.' When a mistake is made in the name of the iferson to whom an instrument, under seal or without seal, is exe- «cuted or payable, the plaintiff may sue in his right name, and show the mistake on the trial. J A mere mistake in spelling the name of a party is of no conse- quence, when his real name and the one in which he sues or is sued Bound alike. Formerly, a mistake in the name of a party to an action was sometimes attended with serious difBculties in the further prosecu- tion of the suit. But now, if a defendant makes an objection on ^account of a mistake, the justice may at once correct it.'' The justices act, in giving a description of a summons,' recog- nizes the right of a plaintiff to bring an action against a defendant whose name is unknown, and in such case requires in the summons ra description of the defendant. The code provides, " that when the plaintiff shall be ignorant of the name of a defendant, such de- fendant may be designated, in any pleading or proceeding, by any = 9. Israelites, etc. — Israelites, or Jews, and all such other persons as religiously observe the last, or any other day of the week, as a day of worship, are on such day privileged from arrest on a civil process, within their respective synagogues, or places of worship, during the time of service, and while actually going to, and return- ing therefrom. '= 10. Insolvents. — The certificate granted by the court of common pleas to an insolvent debtor, protects him from arrest or imprison- ment for any debt" or demand mentioned in his schedule," except debts and demands accruing for money or property received while acting as apublic officer, executor, administrator, guai-dian, or while acting in any other fiduciary character." An officer is liable to an action for damages if he hold a defend- ant in custody who produces his certificate." If a debtor hold the certificate of the commissioner of insolvents and his application for relief be pending in court, it will exempt him from arrest for any debt or demand mentioned in his schedule ; and the officer, upon the production of the certificate, should dis- charge the defendant, taking and returning with the order of arrest, a copy of the certificate." "When a discharge has been obtained in another state under in- solvent laws which exempt the person from imprisonment, but leave the future acquisition's of the debtor (as in Ohio) liable to execu- tion, it will not protect the debtor from arrest and payment of the (k) Eev. Stat., ? 5457. (n) Eev. Slat.. H 6367, 6379. (1) As to exemption from service as jurors, witnesses, arrest for debt, and military duty of police officers in Cincinnati, Cleveland, Columbus, Dayton, and Toledo, while on actual duty, etc., see Kev. Stat., §§ 1890, 1975, 2022. 64 ORDEE OF ARREST BEFORE JUDGMENT. [CHAP- Por what causes allowed. debt here.i But if the insolvent laws of another state, not only discharge the debtor from imprisonment, but also discharge the- debt itself, then he can not be arrested here upon the debt, nor can- payment be enforced.' 11. Executors, administrators, officers, and corporations. — No order of arrest can, in general, be issued against persons who are sued in their representative character, as executors, administrators, trustees of a township, or officers of private or public corporations. If the officer holding the order of arrest is satisfied beyond any doubt, that the defendant is privileged from arrest, he may decline to make the arrest, and make return of the privilege upon th& order. It is frequently, however, a question not easily determined whether a person against whom an officer holds an order of arrest, is or is not privileged from arrest. The privilege is a personal one, and the officer is not in general bound to determine it, after he has in good faith made the arrest, unless indeed the prisoner can pro- duce documentary evidence, such as a certificate of his application for the benefit of the insolvent law, of his privilege from arrest. It has been held that where a sheriff was sued for an escape, on an execution, that he could not plead in defense that the defendant to the execution had been a suitor at a court on the day of his arrest, and was therefore privileged from. arrest. The sheriff should have required the defendant to the execution to have obtained his dis- cbarge by a habeas corpus.' Sec. III. For what frauds an order oe arrest mat be issued. The constitution of the State of Ohio provides that no person shall be imprisoned for debt, in any civil action, on mesne or final process, unless in cases of fraud.' The statute provides, that an order for the arrest of the defend- ant in a civil action, shall be made by the justice of the peace be- fore whom the same is brought, when there is filed in his office an affidavit of the plaintiff, his authorized agent or attorney, made before any person authorized by law to administer oaths, stating the nature of the plaintiff's claim ; that it is just ; the amount (q). 2 Cow. 626. (a) 13 Ohio St. 182. (r) 1 Ohio, 236; 2 Conn. 633; 12 (t) Const., art. 1, sec. 15. Johns. 142. X.J ORDEE OP ARREST BEFORE JUDGMENT. 65 The affidavit — How the cause of action, etc., to he stated. thereof, as near as may be ; and establishing one or more of the fol- ' lowing particulars : 1. That the defendant has removed, or begun tp remove any of his property out of the county, with intent to defraud his creditors. 2. That the defendant has begun to convert his property, or any part thereof, into money, for the purpose of defrauding his creditors. 3. That he has property or rights in action which he fraudu- lently conceals. 4. That he has assigned, removed, or disposed of, or has begun to assign, remove, or dispose of his property, or any part thereof, with intent to defraud his creditors. 5. That he fraudulently or criminally contracted the debt, or in- curred the obligation for which suit is about to be brought. The affidavit must also contain a statement of the facts claimed to justify the belief in the existence of one or more of the above particulars." Sec. IV. The affidavit for an order. 1. How entitled.— It is proper, but not necessary, to entitle the affidavit of the names of the parties, and of the justice to whom the application for the order of arrest is made; as thus : A. B., plaintiff, -\ ^Qf^^Q q h.. Justice of the Peace of Mont- V. ] C. i). defendant, i gomery township, Franklin county, Ohio. 2. Statement of the causff of action in the affidavit. — The statute requires the affidavit to state the " nature of the plaintiff's claim ; that it is just ; and the amount thereof, as near as may be." The affidavit should, in general, bo positive as to the existence of the plaintiff's claim, and not argumentative." Therefore, stating in the affidavit that plaintiff "believes he has a claim against the defendant;" or, that "it appears from the books of the plaintiff that the defendant owes him," or the like, is not sufficient.^ But it need not be positive where it is impossible to swear posi- (u) Kev. Stat., ? 6488. (w) 5 T. K. 364; 1 T. E. 83. (v) Id. (x) 1 "Wils. 339, 279, 121, 231; 2 Str. 1209, 1226; Burr. 655. 66 ORDER OF ARREST BEFORE JUDGMENT. [cHAP. The affidavit. tively from the nature of the transaction ; as when an executor oi administrator sues on an account of the estate, or the like. So, if the assignee of the claim, or the agent of a non-resident plaintiif, makes the affidavit, he could not swear positively to the debt, nor is it required.^ But in such cases the aCant should state the ex- istence of the claim to the best of his knowledge and belief. The affidavit, besides being, in, general, positive, except as above ■mentioned, must also state, as near as may be, the nature of the ■ claim ; that is, how it arose, or upon what it is grounded, and also the amount of the claim ; and in these respects it should, in' gen- eral, bej2ertain and explicit.^ Therefore, stating only that the claim is " on promises," or that the defendant is "indebted to the plaintiff in trover," oris indebted "in or about" so much, is, in general, insufficient.'^ When, how- ever, the amount of the claim, from its nature, is uncertain, and must 'depend upon the opinion of the affiant or a jury, the party is not bound to swear positively to the amount ; but he must state an ;amount, either by averring that "the claim amounts to at least dollars," or " that the claim amounts to more than dol- lars,"* or the like. If the claim is upon a bill of exchange or promissory note, the .affidavit must state that it is due and unpaid, or some other cir- 'Cumstance from which that fact may be presumed, as the date, etc. It should also state in what character the defendant is sued, whether as acceptor, maker, drawer, or indorser;" but it is unnecessary to state the character in which the plaintiff claims.* The nature of the claim must be stated with such precision "that, if untrue, perjury may be assigned on it. Therefore, an affidavit that the defendant in indebted, instead of is indebted, was held bad.« "When the action is brought to recover the value of property con- "verted by the defendant, the affidavit should state that the plaintiff was possessed of, or owned the goods ; their value, and a conversion^ either express or implied.^ (y) 8 T. E. 520; 4 T. E. 176; 4 Burr. (T>) 10 Ohio, 263. 2283; 1 Blackf. 112; 8 MoCord, (c) 1 Eng. 0. L. 476. 318; 1 Wils. 232. (d) 7 East, 94. (z) 8 T. E. 27; 7 Bast, 194; 11 East, (e) 2 "Wils. 224. 315; 2 M. & S. 603. (f ) 7 T. E. 321. See Covfp. 529; 1 (a) 10 Ohio, 263; 1 H. Bla. 218; 2 Wils. 835. Doug. 467. X.] OKDEK OF ARREST BEFORE JUDGMENT. 67 The affidavit — Statement of the fraud. The cause of action stated in. the affidavit should conform to the •bill of particulars.s 3. Statement of the fraud in the affidavit. — The power of courts rand iiiafifistrates to authorize arrests in civil actions, exists only by ^express legislation. Hence the course prescribed by the statute, to procure an order of arrest, must be strictly pursued.'' The statute, after providing that the affidavit shall state the nature of the plaintiff's claim, that it is just, the amount thereof as near as may be, then provides that the affidavit shall establish one of five particular frauds named. It further provides that the ^affidavit must also contain a statement of the facts and circum- stances claimed to justify the belief in the existence of one or more of the above particulars. Now, a total omission to state in the affi- davit the facts and circumstances inducing a belief of the particu- lar fraud, will render the order of arrest void for want of jurisdic- tion in the justice to issue it, at least between the parties to the proceeding.' But if facts are stated which have a legal tendency to induce such belief, although slight and inconclusive, they will suj^port the order until reversed ; that is, the order will not be void, but will indicate a mistaken legal opinion of the justice. The requirements of an affidavit for an order of attachment against property, are not as strict as when an order of arrest is asked which interferes with the personal liberty of the defendant.' In the latter, the justice should be particularly careful to examine the affidavit, and see that it conforms to the letter and spirit of the statute. The affidavit, then, for an order of arrest, after stating the belief -of the affiant in the ground or particular, as in the statute, for thear- rest, must further state the facts and circumstances which justify, or cause the affiant to believe in, the existence of the ground or par- ticular. These facts and circumstances must, prima facie, establish the fact that the ground or particular which authorizes an order of arrest actually exists,'' If, therefore, the facts, circumstances, or ■declarations thus detailed, are so slight or so indefinite that they (g) 7 T. E. 89. (k) Eev. Stat., § 6483. See 14 Ohio St. (h) 14 Ohio St. 213. 214. See 16 Ohio St. 304; li (i) Id. 220, and cases there cited. Id. 579; 12 Id. 33; 9 Id. 397, ., defendant, J gomery township, Franklin county, Ohio. The said plaintiff, A. B., makes oath that the claim in this actioa is [upon, or for, etc. Here state the nature of the claim as given he- low, or according to the facts.'] And the deponent also makes oath that said claim is just, and that there is due thereon dollars. He also makes oath that, [here state the particular, or fraud, requited by the statute. See the forms hereinafter given. Post, p. 75.] If the affidavit is made by an agent, commence thus: R. H. makes- oath, that he is the authorized agent of the said C. D. in the prem- ises ; that the claim in this action is [upon, or for, etc., stating thit nature of the claim, and proceeding as above directed."] Wo. 20.] 2. Forms of statement in the affidavit of the nature of the claim or cause of action. For property sold. — For goods sold and delivered by this deponent to the said C. D., and at his request. For a gelding sold and delivered by this deponent to the said C, D., and at his request. For BO much money which the said C. D. promised to pay unto , this deponeiit, together with a certain mare, the property of him. the said 0. D., in exchange for a certain gelding, the property of this deponent, and which said last -mentioned gelding was accordingly heretofore delivered to the said C. D. For medicines administered and delivered, found and provided by this deponent, to and for the said C. D. [and others,] at his re- quest. For goods sold by this deponent to the said C. D., at his request iind at his like request delivered to one W. S. For property hired. — For the use and hire of a certain horse and buggy, let to hire and delivered by this deponent to the said C. D., and at his request. X.] ORDER OF ARREST BEFORE JUDGMENT. The affidavit — Forms of statement of cause of action. For the use and hire of certain household furniture, let to hire, and delivered by this deponent to the said C. D., and at his re- quest. For rent- — For one year's rent of a certain messuage, lands, and premises, by this deponent demised to the said C. D., and at his re. quest ; and which said year's rent is now in arrear and unpaid. For the use and occupation of a certain messuage, lands, aod premises of this deponent, held and enjoyed by the said C. D., as tenant thereof to this deponent, for one year now elapsed. For the use and occupation of certain rooms and apartments in a certain dwelling-house of this deponent, held and enjoyed by the said 0. D., as tenant thereof to this deponent, for one year now elapsed. ■"For the rent of a certain messuage, lands, and premises of this ■deponent, (hold and enjoyed by the said C. D., as tenant thereof to this deponent, at and under the yearly rent of dollars, pay- able quarterly,) for one quarter of a year, ending last past; and which said quarter's rent accrued and was due after the expira- tion of a certain notice duly given to this deponent by the said C. D., that he, the said 0. D., would quit the said premises on last past. For hoard and lodging. — For meat, drink, washing, lodging, and ■other necessaries, by this deponent found and provided for the said C. D., and at his request. For schooling. — For the tuition and education of one W. S., the in- fant son of the said C. D., and at his the said 0. D.'s request. For the work and labor performed by this deponent, as a school- master, in and about the teaching and instructing- of one W. S., the infant son of the said C. D., and at his the said C. D.'s request. For horse-keep and feeding cattle. — For horse-meat, stabling, care, and attendance, provided and bestowed for and upon the feeding and keeping of a certain gelding for the said C. D., and at his re- quest. For the feeding, depasturing, and keeping of certain cattle;- by this deponent, for the said C. D., and at his request. 70 OKDER OP AKREST BEFORE JUDGMENT. fOUAft.. The affidavit — Forms of statement of cause of action. For work and labor. — For work and labor done and performed by • this deponent, for the said 0. D., and at his request. For work and labor done and performed by this deponent and his servants, and with this deponent's horses, carts, and wagons, for the said 0. D., and at his request. For work, labor, and materials, by this deponent done, performed, and provided for the said 0. D., and at his. request. For work and labor, performed and bestowed by this deponent, as an attorney and solicitor, in and about the [prosecuting and de- fending of certain causes, suits, and business] for the said C. D., on his retainer and at his request, and for certain fees due and pay- able to this deponent in respect thereof For work and labor performed by this deponent, in and about the drawing of certain deeds and writings for the said C. D., and in and about other business for the said 0. D., and at his request. For work, labor, and attendance, performed and bestowed by this deponent, as a surgeon and physician, in and about the heal- ing and curing of the said C. D. [and others,] of divers diseasefi- and maladies, at the request of the said 0. D.,. and also for medi- cines and other things administered, applied, and delivered, found and provided by this deponent, to and for the said C. D. [and others,] at his like request. ' For the work and labor, performed and bestowed by this de- ponent, as the factor and agent of the said C. D., in and about the selling and disposing of certain goods of the said C. D., and in: and about other business of the said C. D., and at his request. For wages. — For wages due and payable from the said C. D. to this deponent, for the service of this deponent, done and performed fprthe said CD., as the hired servant of the said CD., and on his retainer. For salary due and payable from the said C D. to this deponent,- for the service of this deponent, done and performed for the said C. D., as clerk to the said 0. D. , and on his retainer. For wages due and payable from the said C D. to this deponent for the service of this deponent, by him done and performed as a mariner on board of a certain steamboat of the said C D. called the , for the said C D. and on his retainer. [Or if the action be against the captain, then, " on board of a certain steamboat called the , whereof the said C. D., during the time of the said ser- Tice, was master and commander."] ■ J •] OEDER OF ARREST BEFORE JUDGMENT. 71 The affidavit— Forms of statement of cause of action. For the wages of this deponent, and for his service done and performed hy him as master and commander of a certain steam- boat called the , for the said C. D., and on his retainer. For carnage and- freight— Fov the conveyance of certain goods carried and conveyed by the plaintiff for the said C. D., and at hia request. For freight due and payable from the said 0. D. to this deponent, for and in respect of the carriage and conveyance of certain goods and merchandise carried and conveyed by this deponent in and on board of a certain steamboat, whereof this deponent was master^ from to , for the said C. D., and at his request. For the carriage and conveyance of certain goods and merchan- dise carried and conveyed by this deponent, in Certain boats and other vessels, in and upon a certain canal, from to , for the said C. D., and at his request. For the passage of the said 0. D., in and on board of a certain steamboat, whereof this deponent was master, from to , and at his the said 0. D.'s request. For transporting the said C. D. on the railroad of the plaintiff, at the request of the said 0. D., from to . For money. — For money lent and advanced by this deponent to ^the said C. D., at his request. For money paid, laid out, and expended by this deponent for the said C. D., at his request. For money had and received by the said C. D., to and for the use of this deponent. For money by this deponent lent and advanced to, and paid, laid out, and expended for the said C. D., and at his request ; and also for money had and received by said 0. D., to and for the use of this deponent. For interest. — For interest upon certain sums of money [lent and advanced by this deponent to the said C. D., or " paid, laid out, and expended for the said C. D., and at his request;" or due and owing from the said C. D. to this deponent."] Upon an account stated. — For so much money due from the said C D. to this deponent, upon the balance of an account stated be- tween this deponent and the said C. D. 72 ORDER OP ARREST BEFORE JUDGMENT. [OHAP. The affidavit — Forms of statement of cause of action. On a promissory note. — On a certain promissory note drawn by tlie said C. D., payable to this deponent, and now due and unpaid. As indorsee of a certain promisory note drawn by the said 0. D., payable to one A. B., or order, and by the said A. B. indorsed to this deponent, and which said promissory note is now duo and unpaid. As indorsee of a certain promissory note drawn by one A. B., and indorsed to this deponent by the said C. D., and which said promissory note is now due and unpaid.. On a bill of exchange. — On a certain bill of exchange drawn by one A. B. upon and accepted by the said G. D., payable to this deponent, and which said bill of exchange is now due and unpaid. On a certain bill of exchange drawn by the said C. D. upon and accepted by one A. B., payable to this deponent, and which said bill of exchange is now due and unpaid. As indorsee of a certain bill of exchange drawn by one A. B. upon and accepted by the said 0. D., payable to the said A. B., or his order, and by the said A. B. indorsed to this deponent ; and which said bill of exchange is now due and unpaid. As indorsee of a certain bill of exchange drawn by the said C. D. upon and accepted- by one A. B., payable to the said C. D., or his order, and by the said C. D. indorsed to this deponent ; and which said bill of exchange is now due and unpaid. As indorsee of a certain bill of exchange, drawn by one A. B. upon and accepted by one E. F., and indorsed to this deponent by the said C. D.; and which said bill of exchange is now due and unpaid. As indorsee of a certain bill of exchange, drawn by the said C. D. upon one A. B., and by the said C. D. indorsed to this deponent; and which said bill of exchange lias not been accepted by the said A. B., but the said A. B. has refused to accept the same, and the same still remains unaccepted and unpaid. On a bond by the obligee. — ^For principal and interest due on a bond, bearing date the day of , in the year , and made by the said C. D. to this deponent, in the penal sum of dol- lars, conditioned for the payment of dollars, with lawful inter- est for the same, at a day now past. Upon a bond bearing date the day of , in the year of our Lord , and made by the said C. D. to this deponent, in the penal sum of — — dollars, conditioned for the performance of an X.] order' op arrest before judgment. 73 The affidavit — Forms of statement of cause of action. award to be made as in the condition of the said bond is mentioned, -and by which said award, since made in pursuance of the said con- dition, bearing date the day of , in the year aforesaid, the said C. D. was awarded to pay to this deponent the said sam of dollars, upon a day now past. On a bond by the assignee.-^¥or principal and interest due to him as assignee of a certain bond, bearing date the day of , in the year , and made and entered into by the sail C. D. to one J. N., or order, in the penal sum of dollars, condi- tioned for the payment of dollars, at a day now past; and which said bond, with the money due thereon, has since been duly assigned by the said J. N. to this deponent, and the said sum of -dollars, with interest for and upon the same, is now due and unpaid. If there be two or more causes of action which are intended to ■ be joined, they may also be joined in the same affidavit, thus: "for goods sold and. delivered by this deponent to the said C. D., and at ■his request; and also for meat, drink, washing, and lodging, and -other necessaries by this deponent found and provided for the said -C. D., and at his request ; and also for work and labor done and performed by this deponent for the said 0. D., and at his request; and also for money by this deponent lent and advanced to, and paid, laid out, and expended for the said C. D., and at his request ; and also for money had and received by the said C. D., to and for the use of this deponent." By a partner.— J. N., of , maketh oath and saith, that C. D. is justly-and truly indebted to this deponent and W. IST. in the sum -of dollars, for goods sold and delivered by this deponent and the said W. JST., and to the said C. D., and at his request. For goods sold and delivered by this deponant and one "W. N., in his lifetime, now deceased, and whom this deponent hath survived to the said C. D., and at his request. By executor or administrator.— 'S. IS., of , executor of the last will and testament of A. B., deceased, maketh oath and saith, that C. D is justly and truly indebted to this deponent, as executor as aforesaid, in the sum of dollars, for goods sold and delivered by the said A. B., in his lifetime, to the said C. D., and at his re- *quest, as appears by the books of the said A. B., and as this de- ponent verily believes. 74 ORDER OF ARREST BEFORE JUDGMENT. [CHAP. The affidavit — Forms of statement of cause of action. J. N., of , executor of the last will and testament of E. ¥., de- ceased, who, in his lifetime, was executor of the last will and testa- ment of A. li., deceased, maketh oath and saith, that C. D. is justly and truly indebted to this deponent, as executor aforesaid, in the sum of dollars, for goods sold and delivered by the said A. B., in his lifetime, to the said C. D., and at his request, as appears by the books of tho said A. B., and as this deponent verily believes. J. N., of , administrator of all and singular the goods and estate which were of A. B., deceased, at the time of his death, who died intestate, maketh oath and saith, that [etc., as in the form last but one]. Against constable. — For so much money collected and received for this deponent, by him, the said C. D., as a public officer, to wit, as constable of the township of , in the county of , Ohio. For the wrongful conversion of goods. — For certain goods and chat- tels, the property of this deponent, and to the immediate possession of which he was entitled, to wit: [Jiere describe the property'] and- which were of the value of dollars ; and which said goods and chattels, while he was the owner of the same, and entitled to the- immediate possession thereof, the said 0. D. wrongfully took and converted to his own use. For a trespass. — For damages committed by the said C. D., upon the lands of this deponent, situate in [etc.], by [here state the par- ticular injuries, as thus:] by wrongfully throwing down the fences;, and by taking and carrying away rails therefrom ; by forcibly- entering a certain dwelling-house of this deponent, situate in said township, and expelling this deponent and his family therefrom, and keeping them but, ete. For forcibly entering a certain dwelling-house of this deponent, situate in said township and county, and breaking and injuring the doors thereof, and for seiziqg and taking divers goods and chattels, to wit : [here describe the goods] of this deponent, then in said dwelling-house, and carrying away and converting the same to his, the said C. D.'s own use. For fraud. — Damages sustained by this deponent, by reason of the false and fraudulent misrepresentations of the said 0. D., that a horse sold by him to this deponent was sound, which the said C. D. knew was false. X.]' ORDER OF ARREST BEFORE JUDGMENT. 75i The affidavit — ]?orms of statement of fraud. Forms of statement in affidavit of the •particular, or fraud, required' by the statute. After commencing the affidavit, and stating the nature of the claim, as above, and that it is just, and the amount due, proceed as follows, if fraudulent removal of property from the county is charged : And this deponent further makes oath, and says, that he has rea- son to believe, and does verily believe, that the said C. D has begun. to remove a part of his property out of the said county of , •where he resides, with the intent to defraud his creditors ; and that the grounds of that belief, and the facts within the knowledge of this deponent, by information from others, and which he believes to be true, are in substance as follows : [Aere state the particular facts and circumstances which induce the belief that the defendant is guilty of the fraud, which must, of course, vary in each case, as thus:'\ The 6aid C. D. has been, for many months last past, engaged in the business of a dry -goods merchant, at the town of , in said county. On the 21st day of December last past, the said C. D. shut up his store, declaring at or about the time he did so, that he shut it up for the purpose of taking an inventory of his stock, and that ho. shoald open it again in two or three days. The said 0. D., im- mediately after shutting up said store, commenced ' packing up a portion of said goods, and in the night-time sent off some or all the goods so packed, to the town of , in the county of The goods so sent off were boxed up and directed to XX. When they arrived at said last-mentioned town, they were taken into the pos- session of L. M., an auctioneer, who sold them at auction for cash and paid over the money to said C. D. This deponent called on said C. D., the next day after he received said money, to wit, on the 23d day of December last, and demanded payment of the debt for which this suit is [about to be] brought. The said C. D. said he had no money, and thereupon this deponent inquired of said C. D. why he sent his goods away and sold them at auction ; in answer to which, the said C. D. replied that he had not done so. Thereupon, this deponent detailed the above facts to said 0. D., who then said he had a right to sell his goods in any way he, pleased, and that deponent might collect his claim the best way he could. The said 0. D. is reputed to be insolvent, and unable to pay his debts. It would not have required more than three days to make an inventory of said goods in C. D.'s store. His store has been closed ever since the said 2l8t day of December ; and further this deponent saith not. "76 ORDEK OF AEKEST BEFORE JUDGMENT. [OHAP. The affidavit — Forms of statement of fraud. Or state it thus : A. B., plaintiff, '\ Before Gr. H., a justice of the peace of J). {■ Montgomery township, Franklin county, C D., defendant. ) Ohio. The plaintiff, A. B., makes oath that the claim in this action \y npon an account for goods sold and delivered, that it is a just claim, and that there is due thereon one hundred dollars. He also makes oath that C. D. has removed the following-described property out •of the said county of Franklin, where he resides, with the intent to defraud his creditors, to wit : [liere describe the property, and then ^tate facts showing the fraud.'](l') If the defendant has property, which he fraudulently conceals, state it thus : And this deponent further says, that he verily believes that the eaid C. D. has property which he fraudulently conceals, and that the grounds of that belief and the facts within the knowledge of this deponent, by information from others, and which he believes to be true, are in substance as follows : {here state facts sufficient to justify the belief, thus .•] the said C. D., on or about the day of , A. D. , had in his possession, used, and claimed, as his own property, a certain horse ; and which said horse was, as this de- ponent verily believes, the property of the said C. D. That whilst the said C. D. was, at the time aforesaid, in possession, and the owner of said horse, as above stated, one E. M. obtained a judg- ment, before H. H., a justice of the peace of said county, against the said C. D., and the said C. D. then told the said B. M. that he would hide and secrete said horse, so as to prevent the same from being levied upon by virtue of any execution that might be issued upon said judgment. And this deponent further says, that on or about the day of — — , a. d. , the said K. M. caused an execution to be issued upon said judgment, and the said execution was, on the same day, placed in the hands of a proper officer, to wit, L. C, constable, who made diligent search for said horse, under said execution, and before the return day thereof, and could not find the same. And this deponent farther says, that on (etc.), he proposed to said C. D. to take said horse at a reasonable price, and credit the price on the debt due this deponent, hereinbefore men- (1) The above form is taken from the Code Commissioners' Report. SeeBep, p. 237. X,] ORDER OP ARREST BEFORE JUDGMENT. 7T Undertaking before order issued. tioned, to which the said C. D. answered, that he would neither sell' said horse, nor let it be sold on any execution against him ; and that R. M. might catch the horse when he found him. And this deponent further says, that on the day of making his affidavit, hereinafter mentioned, he made diligent inquiry of the neighbors of said 0. D., and was credibly informed by them, and verily be- lieves the fact so to be, that said horse has not been seen on the premises, or in the possession of said C. D., since the said C. D. threatened, as first above mentioned, to conceal and secrete the same ; and that the said C. D. still continues to fraudulently conceal' the same. If the debt was fraudulently contracted, state it thus: And this deponent further says, that the debt and cause of action above set forth against the sa,id C. D., for which suit is [about to be] brought, was fraudulently contracted by him, by falsely represent- ing to this deponent that he was a merchant in good standing, and worth a large amount; and by his bringing letters of recommend- ation that were false [etc., stating the particular.'] It is unnecessary to give forms under each particular, or ground, ■upon which an order of arrest may be issued. It is not the duty of a justice to make out an affidavit for an order of arrest. Indeed, there is an impropriety in his drawing, any affidavits of parties in civil cases, when he is to determine afterward its scope, legal effect, or sufficiency. Sec. VI. Undertaking before order of arrest issued. The statute provides' that the order of arrest shall not be issued' by a justice of the peace until there has been executed by the plaintiff, if a resident freeholder of the township where suit is brought, otherwise by one or more sufficient sureties of the plaintiff, a written undertaking to the effect that the plaintiff shall pay Iho defendant all damages which he may sustain by reason of the arrest, if the order be wrongfully obtained, not exceeding double the amount of the plaintiff's claim, stated in the affidavit. (i) Eev. Stat., § 6485. TS ORDER OF ARREST BEFORE JUDGMENT. [CHAP. rorm of undertaking by sureties — Issuing and form of order of arrest. The undertaking may be in the form fallowing : JVo. 21.] Form of undertaking by sureties. ■' P ' I Action before G. H., a justice of the peace 0. D., defendant, j "^ township, county, Ohio. We undertake and bind ourselves to the defendant, C. D., that the plaintiff, A. B., shall pay the defendant all damages not exceed- ing \here insert double the amount of the plaintiff's claim stated in the affidavit'], which he may sustain by reason of his being arrested, if the order therefor, in this action, be wrongfully obtained. Columbus, March 4, 18 — . Taken by, and signed and acknowledged before me, this day of , A. D. 18—. G. H. j. p.(l) The undertaking, when executed by a resident freeholder, can be readily made out from the above form. Sec. VII. The issuing and form of an order of arrest. The order of arrest may accompany the summons, or may be issued at any time before judgment, if the plaintiff files an affidavit' establishing the ground for issuing the order, required by the statute and the undertaking before mentioned.^ No. 22.] Form of the order of arrest, issued before judgment. The State of Ohio, Montgomery township, Franklin county, ss. To C. C, constable of said township: You are hereby ordered to arrest G. D., and bring him forthwith before me, G. H., a justice of the peace of said township, at my office, to answer the action of A. B., against said C. D., pending before me, in which the said .4- E- claims [insert amount stated in the affidavit^ dollars ; and have then and there this order. "Witness my hand, this day of , A. d. 18 — - G. H., J. p., Montgomery tp., Franklin co., Ohio. A copy of the affidavit must be delivered, with the order of arrest, to the constable.' (kj Rev. Stat, ? 6484. (1) Kev. Stat., § 6486. (1 ) The attestation and acknowledgment before the justice may be omitted -when the undertaking is not signed in his presence. X.] ORDEE OF ARREST BEFORE J0DGMEKT. 79^ By whom and how executed. Sec. VIII. The arrest. 1. By whom arrest to be made. — The oflBcer, or deputed person to "whom the order of arrest is directed, must be so far acting in the arrest, as to be engaged either at the place where the arrest is made, or elsewhere, in the endeavor to make the arrest. It is not neces- sary that the officer, or deputed person, should make the arrest, or even be within sight when the arrest is made; he can not, however, go upon another business; or* stay at home, and send an unau- thorized person to execute the order ; but if engaged in efforts to arrest — as, for instance, if he leaves the place for the purpose of call- ing OK the power of the county to assist him — he is constructively present, and the assistants he has left may make the arrest."" 2. When. — It can not be made on Sunday, nor on the fourth day ■of July. " Israelites, and others who religiously observe the last, or any other day of the' week as a day of worship, can not be arrested on such day within their places of worship, or while going to or returning therefrom." Special bail, etc., being considered the jail- ers of their principal, may take their principal on the fourth of July, or on Sunday, or any other day.? If a person, after being actually arrested, escape without the consent of the officer, he may be retaken at any time, and in any place, for he is still deemed in custody ; but if the officer volunta- rily permit the defendant to escape after arrest, the former can not afterward retake the latter on a privileged day, or at a privileged place.9 3. Where. — The arrest may be made at any place within the township, and upon any river or water-course which divides the township from a neighboring state.' No person can be arrested on civil process in the Senate chamber or House of Eepresentatives, during their sitting; or in any court of justice during the sitting of the court.' We shall now inquire how far an officer is justified in entering a house to arrest a party ; and as the law is the same in regard to ao officer entering a house, whether he hold an order of arrest, or (m)Cowp. 65 J 7 Co wen, 269 10 (p) 7 Johns. 145; Kev. Stat., § 5513. Johns. 85. (q) 13 Mas.?. 520; 5 Co. 93. (n) Eev Stat., ? 5458 (r) Kev. Stat., g 5459 (o) Eev. Stat., 2 5457 (s) Rev. Stat., ? 5458 j 80 ORDEE OP ARREST BEFORE JUDGMtlNT. [CHAP.- Servioe — Entering dwelling. summons, or execution for goods, the subject need not be again, noticed when we come to treat of the mode of executing other mesne and final' process. . y^ It is a settled and sacred pi'inciple of law that the house of every one is to him, as his castle or fortress. Therefore, in a civil suit, if an officer holds a summons, order of arrest, or execution for goods, he has no I'ight to break the defendant's house to execute the process if the door is _not opened ; even though he make re- quest that the door may be opened, and the request is denied.* liifting a latch is, in law, as much a breaking as the forcing of a door bolted with iron." A dwellin'g-house, if the outer door is shut, is a protection from arrest upon civil process to the occupant, his children, and domestic- servants, and to permanent boarders, or those who have made the house their home, and are a part of the family.' If the door be open, or if, upon.knocking at the shut door, he is askod to walk in, he may enter ; and having once gained peaceable admission into the house, he may break open an inner door to ex- ecute the process without demanding admittance at such inner door, having reasonable ground to suspect that the party or goods are within, and the circumstances showing that a demand of admit- tance would not probabl5'' be complied with.'" On execution, trunks may be opened to seek for goods." If an ofiicer breaks open an outer door when he is not justified in so doing, he is not liable to an action, but the arrest or levy will be considered void.^ If the defendant, or his goods, are in the house of another, with- out any view to avoid the writ, the officer can not, in general, break open the outer door to make the arrest, or to make a levy. If the defendant flee to, or conceal his goods in the house of another, to avoid the process, or if the owner of the house purposely secrete the defendant or his goods there, the outer door, after admission demanded, may be broken open. The officer may peaceably enter the open door of the house of (t) 5 Co. 93. * (w) 3 B. & P. 223; 4 Taunt. 620. (u) 1 Hill, N. Y. 336; 2 Dana, 404. (x) 16 Johns. 288. {vj Cowp. 1 ; 5 Co. 93 ; 18 Mass. 520. (y) 24 Wend. 369 ; 12 Pick. 270. It seems a mere guest is also protected. 1 Hill, 336. But see 13 Mass. 520. X.] ORDER 0I> ABKEST BEFORE JUDOHENT. 81 Service — ^Entering dwelling. another without permission, provided the defendant or his goods be actually therein ; and, after entering, may break open inner doors if necessary to make a levy, or to arrest a defendant; but if the defendant or his goods be hot there, the officer will be a tres- passer, even though he acted upon a reasonable presumptive belief that the defendant was there.'' The difference between the officer breaking open the inner doors of the defendant's house and another person's, is this : The justification of the officer for breaking open the inner doors of another to arrest the defendant, or to levy on his goods, depends upon the fact whether the defendant or his goods were actually in the house — the officer is justified or con- demned by the event; but when the inner door of the defendant's, own house is broken open, the officer will be justified, although the defendant or his goods were not there, if the officer was honestly seeking either. If a person let out part of his house, reserving for himself and occupying an inner room, an officer entering through the outer door of the house, being open, may, after demand 'of admittance, break open the inner door to arrest bim, or to make a levy of his goods.* So the officer may break open the door of a lodger in a house, there being one outer door to the house through which the officer entered peaceably .'' When, however, the whole house is let out in lodgings, and the owner does not inhabit any part of it, although there is but one door common to all the inmates, every separate apartment, or suite of apartments, is the mansion-house of those who occupy them. But, as before intimated, when the landlord occupies only a part of the house, and lets out the rest to lodgers, he is, in law, -the occupier of the whole house." If a dwelling-house is so constructed as to be capable of being used as a double house, or a distinct residence for two families, each family having an outer door, and if the same is in fact so used by the families of A. and B., then an officer who has an execution against B., and enters A.'s outer door, with A.'s consent, has no au- thority to break open an inner door leading to B.'s room, which ad- joins a room of A., to execute process upon B. But if such inner door of B.'s room be of common use and passage for the families of A. (z; 1 Hill, N. T. 336 ; 4 Taunt. 619 ; 1 (a) 5 Johns. 352 ; 3 B. & P. 223. Eng. 0. L. 874, 268; 5 Taunt, (b) 1 Cowp. 1. 765. (o) 9 B. & C. 185. 6 82 ORDEE OP AEREST BEFOEE JUDGMENT. [CHAP. How executed. and B., at the pleasure of both, either to go out of the house through A. 's outer door, or as a passage way to the interior of the "house, then such door is not privileged as an outer door, and hav- ;ing gained admittance through A.'s outer door, the officer may lawlfully open the inner door forcibly to arrest B.* The privilege annexed to a dwelling-house does not extend to a store, barn, or outhouse, disconnected from it, and forming no part of the curtilage, or inclosed yard around and belonging to the ihouse.^ They may be broken open to make an arrest, or to levy 'On goods ; and if the defendant, or his goods, are in the store, barn, or outhouse of another, it may be broken open, under like circum- «tanceB, and subject to like liabilities as have been already stated, -when the inner door of the house of another person is broken open. The rule which has been stated will not protect one flying to his dwelling-house upon an escape, after arrest ; in such case the offi- cer may break (Joors or windows in order to arrest.' And if the process be regular, and after the arrest the defendant ■escape, or if after a levy the defendant shut the goods up in hia ■dwelling-house, and the officer can not gain admittance after a rea- sonable demand, he may force the doors.s When a man's house, unoccupied, is used fraudulently to protect the person or property of another from legal process, the outer ■door may be broken without a demand : the officer doing no un- necessary injury.'' 4. Sow made; and how order of arrest executed. — When there is an actual touching by the officer of the body of the person arrested, as laying hold of the hand which is out of the window, a legal ar- rest is made.' In general, to constitute an arrest when the defend- ant resists, some part of the officer must come in actual contact with some part of the person arrested.'' But if the person arrested understand that he is arrested, and submitj- although the officer tioes not touch him, the arrest is complete. Thus, if the officer meets the defendant in a room, or on horsebock, or in a carriage, and says to him, " I have a ■*rit against you — you are my prisoner," upon which he submits, turns back, or goes with the officer, it is (d) 11 Met. 295. (h) Wright, 505. (e) 16 Johns. 287. (i) 1 Salk. 79. (f ) 13 Mass. 522. (j) 2 N. H. B18. Arrest of wrong person — Forms of return. ingly, and -will not be held responsible if there be no negligence or want of reasonably exertion on his part.? If the officer voluntarily permit the defendant to go at large for any period, and the defendant does not return, or the officer is unable to retake him (as he may do in such case) within a reason- able time, the officer becomes responsible for the debt; and, i£ compelled to pay it, can not, perhaps, recover it back from the de- fendant, for he has been guilty of a breach of duty, and public policy requires that he shall have no remedy over in such case.i(l) 5. Arrest of wrong person. — The officer must, at his peril, arrest the very person named in the writ. If the defendant is as com- monly known by the name by which he is sued, as his real name, or if the name in the writ has the sound, though spelt differently from the real name, the officer may arrest him.' But if there is a substantial mistake of the name in the writ, the officer can 'not a,rre8t the real party intended. The order and proceedings in the action should be amended. Sec. IX. Forms of returns. [No. 23.] January 16, 18 — . Eeceived this order. I have taken the body of the within-named C. D., and delivered to him a copy of this order and of the affidavit received herewith from the justice. Fees : C. C, Constable. January 16, 18 — - Eeceived this order. Defendant not found. C. C, Constable. Various other forms will be found in the chapter relating ta arrest after judgment, from which the forms for returns upon an order of arrest before judgment can be readily made out, by omit- ting that part which relates to the want of personal property.^ For directions as to further proceedings, when the defendant i» brought before the justice by the constable, the reader is referred to the twelfth chapter. (p) 6 Eng. C. L. 425; 1 B. & Aid. (r) 2 Taunt. 401; 11 Bast, 110; 7 190; 8 East, 171; 1 Stra. 432; Cowen, S32; 6 T. K. 234; 8 Cro. Jac. 419 ; 3 Eng. C. L. 179. East, 328. (q) 8 East, 171; (s) See post, Chap. XXIII., sec. 5 (1) As to amount of recovery, see post, chap. 23, sec. 4. XI.] FROOEESINaS AFTEB SUMMONS SEBVED. 85 BismiBsal of %he case by the plaintiff. CHAPTER XI. PROCEEDINGS AFTER SUMMONS SERVED. Sho. I. Dismissal of the case by the plaintiff. II. Docket enteies peeliminabt to tkial. in. When the trial in general to take place. IV. Adjournment bt justice without the consent op pabtiesl 1. When not exceeding forty-eight hours. 2. When not exceeding eight days. V. Adjournment on the application of a pabtt. 1. When not exceeding thirty days, and form of affidavit. 2. When not exceeding ninety days from the time of return of summons, and form of affidavit. Ti. Change of the place of trial, with form of affidavit AND docket entries. viL Issuing, form, service, and return of subpena fob wit- nesses, AND warrant, etc., FOR NON-ATTENDANCE. viiL Issuing, form, service, and return of jury process, and WARRANT FOR NON-ATTENDANCE. IX. Proceedings before trial, on teial day, when thebe is NO ORDER OF ARREST ISSUED. 1. If the plaintiff fails to appear. 2. If the defendant fails to appear, and setting aside judgment in such case. 3. If hoth parties fail to appear. 4. How to proceed if justice fails to attend, or is sick, etc. •Sec. I. Dismissal of the case by the plaintiff. In all cases where a set-oflf or counter-claim has been filed before the dismissal of the case by the plaintiflf, the defendant has the right of proceeding to the trial of his claim, although the plaintiff smay have dismissed his action." (a) Eev. Stat., § 6577. 86 PROCEEDINGS AFTER SUMMONS SERVED. [CHAR. Docket entries — When trial in general to take place. Seo. II. Docket entries preliminary to the trial. The justice should state, on his docket, the title of the action, its number, the date of the writ, the time of its return ; and, if an order of arrest or attachment is issued, that fact, together with the substance of the affidavits, or copies of the affidavits should bo entered ; also the filing of the bills of particulars and their nature, and, if not too long, they should be entered at length on the docket. He should also state which of the parties appeared at the trial. All papers in the case should be numbered to correspond with the number of the case and kept in a separate package, and the case indexed under the name of both parties.*" If an adjournment is had, it should be stated on the docket, and on whose application, whether on oath or by consent, and to what time." If a trial by jury is demanded, the demand must be stated on the docket, and by whom made, the names of the jurors selected and the time appointed for the trial." When the officer returns a summons, the justice should examine it ; and, if the return is not properly made out, the constable should be permitted to amend it so as to conform to the truth."* The officer, However, will be responsible to the party aggrieved if he makes- any false statement in his return. Seo. III. When the trial in general takes place. Upon the return day of the summons, the trial must in genera? take place, if the action is not adjourned. If it appears, from the return of the constable, that one or more of the defendants have not been served, the justice may issue- another summons, or may proceed with the action, as to the de- fendant who has been served, in the same manner as if he alone were the only party defendant, being careful to copy the return of the constable upon the docket ; and, in his subsequent proceed- ings and judgment, to include only the defendant or defendants who were served. A judgment rendered in such case against all^ the defendants would be erroneous, and could be reversed oa error, unless the defendants not served afterward released all error in the proceedings.V (b) Kev. Stat., S§ 694-596. See forms, (d) Kev. Stat., ? 5114. Chap. XIX. (e)y21 Ohio St. 181. (c) Eev. Stat., ? 594. Xli] PROCEEDINGS APTBE SUMMONS SERVED. 87 Adjournment without consent of parties — On application of a party. An adjournment may take place for any period, by the consent of the parties. Sec. IV, Adjournment, by justice, without the consent of PARTIES. 1 . When the adjournment must not exceed forty-eight hours. — Upon the return day of the summons, if a jury be required, or the justice is engaged in other business, and a defendant is in attend- ance on the summons who is not a resident of the county, and neither party asks an adjournment, the action can not be adjourned, at the instance of the justice, beyond the period of forty-eight hours from the time of the appearance.' 2. When the adjournment not to exceed eight days. — Upon the re- turn day of the summons, if a jury be required, or the justice 19 engaged in other business, and the defendant is a resident of the county, and neither party asks an adjournment, the justice can not adjourn the trial in stieh case, at his own instance, beyond the period of eight days.' If, however, neither party demand a jury on the return day of the summons, but at the adjourned day of trial a juiy is demanded, and neither party then desire an adjourn- ment, and an adjournment is made necessary simply for the pur- pose of summoning a jury, the justice must designate a time on the same day, or within the next two days, for the return of the jury process and trial.s As to an adjournment when the defendant is in custody under an order of arrest, the reader is referred to the nest chapter. Sec. V. Adjournment on the application of a paRtt. 1. When not exceeding thirty days, and form of affidavit. — The trial may be adjourned on the application of cither party, without the consent of the other, for a period not exceeding thirty days- But in such case, the party asking the adjournment, nrnst, if re- quired by his adjersary, prove by his own oath, or otherwise, that be can not, for want of material testimony which he expects 1,0 procure, safely proceed to trial."" The party asking the adjournment may be examined under oath by the justice, and cross-examined by the other party, or the justice may require him to file an affidavit. « (f ) Kev. Stat., § 6534. (h) Rev. Stat., § 6535. (g) Eev. Stat., J 6548. 88 PROOBEDINGS AFTER SUMMONS SERVED. [CHAP. Adjournment on application of a party. The affidavit in such case may bo in- the form following: No. 24.] Form of affidavit for an adjournment. affainst I ^®^°'"® ®- ^•' '• ^-t Montgomery township, Franklin county, c. D. 3 o'^^^- The said A. B. makes solemn oath that W. W. is a material wit- ness for him in the above action, without whose testimony, and for want thereof, he can not safely proceed to trial. That \here state the facts which prevent the party from obtaining the testimony of the witness, as thus : the said W. W. resides in the township of , in the said county of Franklin ; and a short time before this action was brought, left his said residence for the pur- pose, as he stated, of going to Iowa, and intended to return on or about the day of , 18 — .] This affiant hopes and expects to procure the testimony of the said "W. W. [or say, expects to procure the deposition of the said W. W] within thirty days from this time. This application for an adjournment is not made for delay merely, but for the purpose ot justice. [Signed,] A. B. Sworn to, and subscribed before me, this day of , a. d. 18— G. H., J. p., Montgomery township, Franklin county, Ohio. 2. When not exceeding ninety days from the return of summons, and form of affidavit. — An adjournment maybe had either at the return day, or at any siibsequent time to which the cause may stand ad- journed, on the application of either party, for a period longer than thirty days, but not to exceed ninety days from the time of the return of the summons. In such case, the party asking the adjournment must, if required by his adversary, prove by his own oath, or otherwise, not only that he can not, for want of material testimony which he expects to procure, safely proceed to trial, but miist also, by his own oath, or otherwise, satisfy the justice that ho can not be ready for trial before the time to which he desires an adjournment, for the want of material evidence (describing — that is, §tating-vwhat the evidence is), and that the delay has not been made necessary by any act or negligence on his part since the ac- Xl"] PROCEEDINGS AFTER SUMMONS SERVED. 89 Adjournment on application of a party. *ion was commeneed, and that he expects to obtain the evidence at the time stated by him.' The party making the application for an adjournment may be examined and cross-examined, under oath, or the grounds of hia application may be set forth in an affidavit. The affidavit in such case may be in the form following : No. 25.] Form of affidavit for an adjournment for over thirty days, asainst i •^®^°''® ^- ^^ •'• ^-j Montgomery township, Franklin Q -Q \ county, Ohio. The said A. 3. makes solemn oath, that one "W. W., (the name of ■the witness), who resides at , will, as affiant is informed, and as he verily believes, testify as follows : \here state what is expected to ■ie proved by absent witness, as thus:"] that he was present and saw this affiant pay to the said C. D. twenty-five dollars on the claim sued upon by C. D. in this action; [or thus:'] that he heard the •said C. D. say that the horse in controversy, in this action, was. ■diseased when sold by the said C. D. to this affiiant. [After describ- ing the testimony, proceed as follows .•] And this affiant further says, that the said testimony of the said .W. W. is material, and that, this affiant can not safely proceed to trial in this action without it. That [here state the circumstances, ■or facts, which have prevented and will prevent the party from obtain- ing the testimony, and also what the party has already done, if any- thing, to procure the testimony, as thus:] when this cause tvas .adjourned over on the day of , a. d. 18—, the said W. W. was at home, and afterward, on or about the day of a. p. 18—, the said W. "W. started on a journey to — — , and stated to Tiis wife, as this affiant has been informed upon inquiry of her, that he should not return until on or about the day of , A. D. 18 — , and this affiant verily believes he will not return until that time. This affiant had no information or knowledge that said W. W. intended to leave home, or that he had left home, until the day of , A. D. 18—. This affiant, in good faith, and under the expectation and belief that he could procure the personal &ttend- .ance of said W. W., caused subpena to be issued for said "W. W . to ■which affiant refers for dates, etc. (i) Rev. Stat., § 6586. DO PHOCBBDINGS AFTER SUMMONS SERVED. [CHAP. Change of place of trial. , After stating the facts which will show that the testimony could not^ by proper diligence, be procured, proceed as follows : This affiant further says, that he expects to procure the said evi- dence of said W. W., on or about the day of , and this; affiant can not be ready for trial before that time ; and this delay in the premises has not, as affiant verily believes, been made nec- essary by any act or negligence on his part since this action was- commenced. [Signed,] A. B. Sworn to, and subscribed, etc. /^ An unauthorized adjournment, without consent of parties, be- jyond the time allowed by law, works a discontinuance of the- ■J euit.J If, however, the parties appear at the unauthorized adjourned I day, and proceed without objection to trial, it will be deemed a con- ( sent to the adjournment. Sec. V. Change op the place of trial. An application for a change of the place of trial can be made- after the return of process, and at any time before the trial is actu- ally commenced. The application must be made by affidavit.* The only grounds upon which a change of the place of trial can be had, are : 1. That the justice is a material witness for either party; or, 2. If a jury is demanded by either party, and the other- party will make affidavit that he can not, as he verily believes, have- a fair and impartial trial in such township, on account of the bias or prejudice of the citizens thereof. " It will be observed that the statute does not require the party- asking a change of the place of trial, to state positively in his affi- davit that he can not have a fair and impartial trial in the township. It seems, however, that the justice must be satisfied by the affidavit; that a fair and impartial trial can not be had before allowing the place of trial to be changgd.'= The affidavit may be in the form following: Ifo. 26.] Affidavit to change the place of trial. A. B. ■) against > Before G. H., j. p., township, county, Ohio. CD. 3 C. D. makes solemn oath, that the said G. H., j. p., before whoitt (j) 12 Ohio St. 530. (k) Kev. Stat., ? 6529. XI.] PROCEEDINGS AFTER SUMMONS SERVED. 91 Change of ylace of trial. the above action is pendiDg, is a material witness for him, and -without whose testimony he can not safely proceed to trial. [^Or say:'] C. D. makes solemn oath, that the said A. B. has, as he is informed and believes, demanded a jury for the trial of the above action, and that this affiant can not, as he verily believes, have a fair and impartial trial in said township of , on account of the bias [or say prejudice] of the citizens thereof. [Signed,] C. D. Sworn to, and subscribed before me, this day of , A. D. 18—. G:. H., J. p., township, county, Ohio. If the justice, before whom the cause is pending, is satisfied by the affidavit of a party that either of the grounds for a change of the place of trial actually exists, he must grant such. change.' If the place of the trial be changed on account of the justice being a material witness in the cause (for a justice can not testify in a case on trial before him, except by the consent of both par- ties™), such suit must be transferred for trial before some other justice of the peace of the same township, if there be one there legally competent to try such cause. If there be no such justice within such township, or if such change be granted on account of the bias or prejudice of the citizens of such township against such party, or because the adverse party has an undue advantage over him therein, the case must be taken to some justice in an adjoining township of the same county." The justice granting such change must deliver or transmit the papers in the cause, together with a certified transcript of the pro- ceedings before him, to the justice to whom such cause may be transferred, who proceeds therein, and has the same jurisdiction, powers, and duties, in all respects whatever, as if such suit had been originally instituted before him." Before any such change is allowed, the costs, as specified in the next following paragraph, must be paid by the party applying for Buch change, or he must confess a judgment therefor before the justice granting the change.? When such change is at the instance of the plaintifF,'he must be (1) Eev. Stat. § 6529. (o) Kev. Stat., § 6531. (m) 10 Ohio St. 112. (p) Kev. Stat., 2 6532. (n) Eev. Stat., g 6530. ^2 PROCEEDINQS AFTER SUMMONS SERVED. [OHAXb Change of place of trial — Subpena for witnesses. taxed with all the costs which have accrued, and which shall ac- crue in the cause, until such transcript and papers shall be deliv» ere 3tl.l PEOCB3BDING8 AFTER SUMMONS SERVEP. 9T How attendance of jury «nfoioed. No. 32.] Form of venire for a jury. The State of Ohio, county. To , constable of township : ToQ are hereby commanded to summon - — , to appear before me, at , in said township, on the day of , a. d. — , at o'clock in the noon, to serve as jurors in a case pend- ing before me, then and there to be tried. And this they shall in nowise omit. And have you then there this writ with your doings thereon. Given under my hand, this day of , A. d. . Justice of the Peace. The constable must serve such Summons by a personal service thereof, and return the same indorsed with the names of the per- sons summoned, at the time appointed for the trial of the caused Form of return to venire. Dec. 28, 18 — . Personally served'S. S. and L. M. Dec. 29, 18—. Personally served G. M. [etc.'] j'ees : C. C, Constable. Jurors, for neglecting or refusing to attend"when properly sum- moned, or refusing to serve when in attendance, are liable to the like penalty, and are proceeded against in the same manner, as witnesses who fail to attend or refuse to testify." (1) The reader is referred to the preceding section of this chapter for the mode of proceeding against a delinquent witness. When a jury is in attendance and the cause adjourned over, the jurors must attend at the time and place appointed for trial, with out further notice." "We have now brought down the proceedings in a jury case, to the time when the jury appear before the justice. In Chapter XV., the proceedings in a jury trial from that point are taken up and atated. In the preceding sections of this chapter, we have given the law ,(y) Eev. Stat., ^ 6551. (a) Kev. Stat., g 6554. (z) Eew. Stat., g 6S52, (1) As to yrho are exempt from serving as jarojs, see poat, Chap. XY., sec. 1. 7 98 PROCEEDINGS ON TRIAL DAT. [CHA1». One hour allowed to parties — If either or both parties fail to appear. •■ - relating to adjournments, the issuing of subpenas for -witnesses, the «ummonB for a jury, and the change of place of trial, with the ibrms incident to the proceedings. We come now to — y* Sec. IX. Proceedings before trial, on trial day, when no or- der OF ARREST HAS BEEN ISSUED. The parties are entitled to one hour in which to appear, after the time mentioned in the summons for appearance; but are not Ijonnd to remain longer than that time, unless both parties have appeared, and the justice being present, is engaged in the trial of another cause. If the justice is so engaged, he may postpone the time of appearance until the close of such trial.'' 1. Sow to proceed when either or both parties fail to appear ; and setting aside judgment by default.— 1£ the plaintiff fails to appear at the time specified in the summons, or on an adjournment, or within one hour thereafter, the justice may, at the instance of the defend- ant, proceed in the cause," or may enter judgment that the action be dismissed withoit prejudice to a new action."* Indeed, if either party fail to appear at the return day of the summons, or fail to at- tend alTthe time to which the trial has been adjourned, or fail to make the necessary bill of particulars, or fail in the proofs, the cause may proceed at the request of the adverse party." If the default, in such case, to attend, or file a bill of particulars, is on the part of the plaintiff, the defendant may insist either upon a dismissal of the action, or if he desires -to prove a set-off or counter-claim,- he may insist upon a trial of such set-off or counter-claim." And although the plaintiff may dismiss his action at the time without prejudice to a new action, yet, in cases where a set-off or counter- claim has been filed by the defendant before the dismissal of a cause by the plaintiff, the defendant has a right, notwitnstanding Buch dismissal, to proceed to the trial of his claim." If both parties fail to appear at the return day of the summons, or the adjourned day of trial, or within one hour thereafter, the justice may, at his discretion, dismiss the action without prejudice, or adjourn it over; or, if the bill of particulars has been filed, and the proof of the plaintiff's claim is before the justice, by written evidence or wit- nesses, he may proceed to hearing and judgment by default (b) Eev. Stati, g§ 6482, 6676. (d) Kev. Stat., ? 6577. (c) Rev. Stat., J 6577. 3U.] PEOCEEDINGS ON TRIAL DAT. 9^ Setting aside judgment by default. If, however, both parties fail to attend, and the plaintiff has •filed DO bill of particulars, or the proofs are not before the justice, be must either dismiss the action without prejudice, or adjourn it over. A judgment by default can not be taken for a larger amount than the amount indorsed on the summons and costs ;« and in an .action for the recovery of money only, if the summons has no in- dorsements upon it of the amount claimed, and there is no appear- rance to the action, except the service of the summons upon the 'defendant, a judgment by default should not be entered.' In such .case a new summons should be issued with a proper indorsement, or the case adjourned over for the appearance of the defendant. "When a judgment is rendered against a defendant in his absence, lit may be set aside upon the following conditions :s 1. That his motion be made within ten days after judgment was -entered, in writing, and sworn to by the defendant or his agent or «,ttorney, setting forth a good and sufficient reason for the absence .of the defendant. 2. That he pay or confess judgment for the costs awarded against him. 3. That he notify, in writing, the opposite party, his agent or ^attorney, of the opening of such judgment, and of the time and place of trial, at least five days before the time, if the party re- .eide in the county ; and if he be not a resident of the county, by leaving a written notice thereof at the justice's office ten days be- fore the trial. The judgment can not be set aside more than once on account of the defendant's absences JVo. 33.] Form of docket entry when judgment by default is set aside. Bee. 27, 18 — . The defendant made his motion to set aside the judgment entered herein. On confession of the defendant, it is considered that the plaintiff recover of the defendant the costs herein awarded, taxed at dollars cents. The judgment is con- ditionally set aside, and the case is set for trial on the day of January, a. d. 18 — , at 10 o'clock a. m. January 6, 18 — , 10 o'clock a. m. The defendant made proof of due notice being given to the plaintiff of the opening of the above (e) Kev. Stat., § 6475. (g) Kev. Stat., § 6678. (f) 25 Ohio St. 82; 31 Id. 87. 100 FB00EEDINQ8 AFTEK SUMMONS SERVED. [cHAP. Opening judgment by default — Failure of both parties to appear. -judgment and of the time and place of trial. Thereupon the jodg- ment is opened and set aside, unconditionally. The parties ap- J>eared ; trial had ; [etc.] Wo. 34.] Form of notice of the opening of a judgment by default. A. B., plaintiff, ") Judgment before Gr. BL, J. p., Montgomery tp.^ against [ J^VanAKn co., Ohio, on the day of ., C. D., defendant. ) 18—. ■ The plaintiff will take notice, that the judgment by default in the above action is conditionally opened ; and the said action is set for trial, at the office of said G. H., J. p., on the 6th day of January,. A. D. 18 — , at 10 o'clock a. m. C. D., defendant. Dated, Dec. 27, 18—- If the notice of the conditional opening of the judgment is not 'given, nor waived, that fact should be stated on the docket, and judgment entered, without hearing any testimony, for the amount of the original judgment, and the costs made, after the judgment was conditionally set aside. The docket entry may be thus : January 6, 18 — , 10 o'clock a. m. The defendant failed to give the plaintiff notice of the opening of the above judgment, etc., as required by law. It is therefore considered, that the plaintiff re- cover the amount of the said original judgment, to wit : dol- lars cents, together with the costs hereinbefore confessed and taxed, and the costs which have since accrued, taxed to dollars cents : [here enter items of costs."] If the notice has been waived, or given, and the defendant or both parties fail to appear, the justice may proceed with the action. as if the case had been regularly adjourned to the day set for trial. 3. Sow to proceed when both parties fail to appear. — If both par- ties, their agents or attorneys, fail to appear, the justice may, in his discretion, enter judgment that the action be dismissed without prejudice to a new action, with costs against the plaintiff, or adjourn over the cause to another day ; or if the witnesses, (or the testimony, such as a note, 1)ond, or other written evidence of indebtedness be filed,) the justice may proceed to hear and determine the cause on the. merits. SI.] PBOCBEDINGB AVTEE SUMMONS SERVED. 101 If justice fail to attend, or is sick, etc. If the justice renders a judgment by default against the defend- •fcnt, he may have the judgment opened upon the terms mentioned in the preceding section of this chapter. 4. Row to proceed if the justice fajl to attend, or is sick, etc. — We have already seen that a justice, actually engaged in other official business, may adjourn a trial without the consent of either party.' If the justice can not try the case at the time set for its trial, on ^account of other official business, he should, at the hour designated for the trial or within one hour thereafter, adjourn the cause. If the justice at the hour set for the trial, and for the period of •one hour after that time, is absent from the office, and the parties, or the defendant, after waiting that time, leave, the action must be ■considered as broken off or dismissed without prejudice to a new .action. If, however, the parties wait beyond the hour, and the jus- tice returns, he may proceed with the action." In case, however, of the sickness or other disability, or necessary absence of a justice at the time appointed for the trial, another justice of the same township may, at the request of the former,- attend in his behalf, and becomes by such request and attendance, vested with the power, for the time being, of the justice before whom the action was brought. The substituted justice must make the proper entry of his proceedings in the action, on. the docket • of the justice before whom the summons was returnable, and siga ifluch entry. If the substituted justice adjourn over the action, the iformer justice resumes jurisdiction. J JVo. 35.] Form of docket entry when a substituted justice tries an action. December 27, 18—, 10 o^clock a. m. [The day and hour here ■inserted should be the time the action was set for trial.'] G. H., before whom this action was brought, being [sick, or say, necessarily ab- sent, according to the fact,] at the said time appointed for the trial of this action, the undersigned, S. S., justice of the peace of the •same township of , at the request of said G. H., attended in his behalf at the said time and place set for said trial : whereupon, ^here state what was done, in the usual form.'] [Signed,] S. S., j. p. township, , county, Ohio. (li) Eev. Stat., § 6482. (j) Rev. Stat., ? 601, 102 PROOEBDINGS AFTEE OBDEB OF ABBEST, ETC. [CHABt. When action to be tried. CHAPTER XII. PROCEEDINGS AFTER ORDER OF ARREST, Aim- BEFORE TRIAL. The order of arrest is always made returnable forthwith. The- summons is generally made returnable from four to twelve day*- after its date, and must, in general, be served at least three day»- before the time required therein for the appearance of the defend- ant. Now, as the order of arrest may be issued after the summons, and served forthwith before the return day of the summons, and as the defendant, when under arrest, must be immediately brought before the justice, the inquiry under such circumstances will arise, whether the defendant is to be kept in custody until the return day" of the summons, or whether the return day of the summons most be disregarded, and the action proceed as if the summons were re- turnable at the time the defendant is brought before the justice under the order of arrest. The latter seems to me the proper- practice. The statute provides, that the oflScer shall, upon receiving the order of arrest, forthwith arrest the defendant ;' and shall forth- with, unless the claim and costs are paid, etc., take the defendant before the justice; and that, upon the return of the order of aiTOst executed, the trial of the cause shall proceed, unless for good cause- shown, upon the application of either party, or at the instance of the justice himself, the same shall be adjourned, etc.'' From these provisions of the statute it would seem, that if, in the progress of a cause, an order of arrest is issued, served, and re- turned, before the summons is returnable, the cause should, when, the defendant is brought before the justice under arrest, proceed tO' trial, or, on proper showing, be adjourned, as if the summons wera then returnable ; and that the constable should make his return to» (a) Eev. Stat.,.? 6487. (b) Rev. Stat., § 6488. [.] FBOCEEDINQS AFTER OBDER OF ARREST, ETO. 103 Discharge of defendant on undertaking or deposit of money — Form o£ ;h summons at the same time that he returns the order of •est. &.nd, from the same provisions of the statute it would seem, that a cause is, after the return day of the summons, adjourned over, 1, before the day fixed by the adjournment for the trial, an order arrest is issued, served, and returned, the cause, notwithstanding jh adjournment, must, when the defendant is brought before the 3tice under the order of arrest, proceed to trial as if then sot for al, unless for good cause then shown, upon the application of her party, or at the instance of the justice himself, the same shall adjourned, as hereinafter stated* [f the defendant is brought before the justice under the order of •est, and the cause is adjourned over for any period, the defend- t must forthwith be discharged from custody, upon executing th one or more sufficient sureties, a written undertaking, to the 3ct, that if judgment shall be rendered in the action against the fendant, he will render himself amenable to the process of the irt thereon."* The sureties must be approved by the justice."* The undertaking may be in the form following: I. 36.] Form of undertaking under order of arrest, upon an adjourn- ment of the action. e State of Ohio, Montgomery township, Franklin county : SVhereas, C. D. has been arrested upon an order of arrest, and is w in custody at the suit of A. B., now pending before G. H., a itice of the peace in and for said township, in which is claimed — , with interest from [etc., setting forth amount of claim as rn to,] and whereas said action has been duly adjourned over trial : fow, the said C. D. and E. P. and L. S., his sureties, do hereby lertake and promise A. B., that if judgment shall be rendered laid action against the said C. D., he will render himself amena- to the process of the court thereon. [Signed,] • c. D. E. P. li. S. Ixecuted and acknowledged before me, and eureties approved me, this day of— — , a. d. 18 — . G. H., J. p. ) See post, pp. 104, 105. (d) Eev. Stat., ? 6485. 104 PEOCEEDINQS AFTKE OEDER OF AEKEST, ETC. [CHAF. — — — ■ . 1 Sureties — Adjournment of action. The surety to the undertaking, and, indeed, to all undertakings, must be worth double the sum to be secured, beyond the amount of his debts, and hare property liable to execution in this state I'qnal to the sum to be secured, and resident of Ohio. When there are two or more sureties in the same undertaking, they must, in the aggregate, have the qualifications above mentioned.* If objection be made to the solvency of the surety, the justice should examine the surety under oath, touching the amount of his property, etc. ; or he may require him to make an aflSdavit.* Ifd. 37.] Form of affidavit to justify bail. A. B. ■) Docket No. . V. y- Before G. H., j. p. C. D. ) On order of arrest. The State of Ohio, county, ss. S. S., proposed surety in the above case, makes oath and says that he is a resident of said and that he is worth, beyond the amount of all his debts, the sum of [here insert double the amount required,"] and that he has property, beyond all execution exemptions, and liable to execution in this state, equal to [here insert the amount of the undertaking'] dollars. [Signed,] S. S. Sworn to and subscribed before me, this day of , a. Db 18 — G. H., J. p. This undertaking can not be sued upon, until an order of arrest has been issued upon the judgment, and a return of " no goods, and defendant not found." If the defendant is brought before the justice under an order of arrest, and declines either to give an undertaking as within men- tioned, or to make a deposit of money with the justice, the effect of an adjournment of the cause beyond the period of forty-eight hours from the time the defendant is brought before the justice (unless done at the instance or with the consent of the defendant), will be to discharge the defendant from custody ; for the statute provides, "that in no case shall the defendant be detained in the custody of the officer, when the continuance has been for a period beyond forty-eight hours, unless said continuance has been mada at the instance, or with the consent of the defendant himself."* (o) Uev. Stat., g 4962, iO&S. ff ) Rev. Stat., g 6488. SII,] FROCEEDINQS AFTER ORDER 0I< ARREST, ETC. 105 Adjournment beyond fbrliy-eiight hours, and its effect. If the continuance is beyond forty -eight hours, at the instance or with the consent of the defendant, he remains in the custody of "the officer until the trial, unless he makes a deposit of money, or causes an undertaking to be entered into, as before mentioned. If the continuance is beyond forty-eight hours -vyithout the conseLt of the defendant, and the defendant is discharged from custody on that account (he having given no undertaking and made no ■deposit), the action will proceed to trial and judgment, or be ad- journed for trial, as if no order of arrest had been issued. If the defendant gives the undertaking, or makes the deposit, the action may be adjourned and tried as in other cases. It will then be observed that a defendant, in custody upon an -order of arrest, issued before judgment, may insist : 1. Upon giving the undertaking, or making the deposit of money above mentioned. If either be done, he must be discharged from custody ; and then the action may be adjourned for like period, and upon like showing, and either party may. have a trial under like circumstances as if no order of arrest had been issued, and the action was proceeding on the summons. 2. If no undertaking is given, or deposit made, the defendant xaay insist that the trial shall not be adjourned beyond forty-eight Lours. If it is, without his consent, he must be discharged from •custody ; and if so discharged, the action proceeds to trial, or ad- journment, etc., as if no order of arrest had been issued.' (f) Bev. Stat., g 6488. 106 DISPOSITIONS. [OHAP. When depositions may be used. CHAPTER XIII. DEPOSITIONS AND AFFIDAVITS. Sbo, I. When depositions mat be used. II. When parties mat commence taking depositions in a» ACTION. m. Bt AND BEFORE WHOM DEPOSITIONS MAT BE TAKEN. IV. Op the NOTICE, ITS SERVICE, ETC. V. The stjbpena, its service and return. VI. Proceedings against witness for disobetinq subpena, with forms. VII. Proceedings against a witness fob bepusing to be sworn OR to testift or to sign a deposition, with fobms. VIII. Form of oath or affirmation of a witness. IX. Form of depositions, and mode of taking them. X. In what cases official character op officer proved XI. How SEALED UP, ADDRESSED, AND TRANSMITTED. xn. Fees fob taking depositions. XIII. Filing depositions. 3XV. Opening depositions. XV. Exceptions to depositions. * XVI. Objections to depositions on the tbiai. xvn. Affidavits. Sec. I. When depositions mat be used. Depositions may be taken to be read in any cause pending before a justice of the* peace, in like manner, and subject to the same restrictions and rules of law, as in cases pending in the court of common pleas.* Depositions, therefore, can be used only in the following cases:* (a) Key. Stat., § 6544. (b) Kev. Stat., J 5265. 11.] DEPOSITIONS. 107 When, and before whom taken. 1. When the witness does not reside in the county where the tion or proceeding is pending, or is sent for trial by change of (nne or place of trial; or is absent therefrom. 2. When from age, or infirmity, or imprisonment, the witness is lable to attend court, or is dead. 3. When the testimony is required upon a motion, or in any her case where the oral examination of the witness is not re- lired.(l) A person confined in prison may, by order of any court of record, } required to be produced for oral examination in the county where 3 is imprisoned ; but in all other cases his examination must be by sposition ; and while his deposition is being taken, he must remain I the custody of the officer having him in charge, who is bound to 3ford reasonable facilities for the taking of the deposition." EC. II. When parties mat commence taking depositions. Either party may commence taking depositions at any time after rvice of summons, or other process, upon the defendant."* sc. III. Bt and before whom depositions mat be taken. Depositions ma}' be taken in this state' before a judge or clerk ' the Supreme Court ; a clerk or judge of the court of common eas ; a probate judge, justice of the peace, notary public, mayor, ■ chief magistrate of any municipal corporation, master coramis- oner, an official Btcnographer,s county surveyor,'' police judge " cities of the first class,' or any person empowered by a spe- al commission ; but depositions taken in thjs state, to be used erein, must be taken by an officer or person whose authority is irived wi*hin the state ; and, if to be used out of this state, may. I taken before a commissioner or officer who derives his authority jm the state or country in which they are to be used.J Depositions may be taken out of this state by a judge, justice, chancellor of any court of record, a justice of the peace, notary (c) Bev. Stat., g§ 5257, 5258. (g) Eev. Stat., § 481. (d) Eev. Stat., § 5266. (h) Eev. Stat., § 1175. [e) Eev. Stat., H hibl, 5258. (i) Eev. Stat, i 1787. [f ) Eev. Stat., §§ 5269, 119, 481, 1787, ( j) Eev. Stat.,' § 5269. 1175. [1) Depositions taken as herein prescribed may be used on the trial of Koy- •\\ action or proceeding pending before any justice, mayor, or other judicia icer of a municipal corporation, arbitrator, referee, or master, Eev. Stat 277. 38 BISFOSIXIQNB. [OSAft The notice — Its form, Berries, etc. iiblic, mayor, or chief magistrate of any city, or town corporate, commissioner appointed by the governor of this state to take spositions, or any person authorized by a special commission from lis state.' (1) The officer before whom depositions are taken, must not be a ilative or attorney of either party, or otherwise interested in the rent of the action or proceeding' EC. IV. Of the notice of taking depositions, its sekviob, ETC. Before taking a deposition, unless under a special commissioq, written notice, specifying the action or proceeding, the name of le court or tribunal in which it is to be used, and the time and ace of taking the same, must be served upon the adverse party, is agent or attorney of record, or left at the usual place of abode ' the party or his agent, and so as to allow the adverse party suf- jient time (exclusive of Sunday, the day of service, and one day r preparation) to travel, by th-e usual routes and modes of con- iyance, to the place named. If the deposition of the party to e suit is to be taken, the notice must so specify, otherwise it can )t be used in his behalf. The examination may, if so stated in e notice, be adjourned from day to day.e "When the party against whom the deposition is to be read, la )sent from, or a non-resident of the state, and has no agent or to^ney of record therein, he may be notified of the taking of the (position by publication. The publication must be made three insecutive weeks, in some newspaper printed in the county where e action or proceeding is pending, if there be any printed in such lunty; and if not, in some newspaper printed in this state, of moral circulation in that county. The publication must contain 1 that is required in a written notice.'^ A deposition can be used only against parties notified as above ated.e (f ) Eev. Stat., gt 5270, 5271. (h) Eev. Stat, § 5274. (g) Kev. Stat., g 5273. (1) Kev. Stat., § 5270. Any court of record of this state, or any judge sreof, is authorized to grant a commission to take depositions within or with- t the state. The commiseion must he issued to a person or persons therein med, by the clerk, under the seal of the court granting the same ; and depo? ions under it must he taken upon written interrogatories, unless the parties lerwise agree. Bev. Stat., g 6272. XinJ DEPOSITIONS. 10& The subpena — Its form, service, and return. The publication may be proved by the aflBdavit of the printer, or his foreman or principal clerk, or other person knowing the same.' JVb. 38.] Form of notice of taking a deposition. ^ The Court of Common Pleas of Franklin A. B., plaintiff, | county, Ohio ; or, The District Court in against ^ and for J'mwMw county, Ohio; or, Before C. D., defendant. I G. H., Justice of the Peace in and for Mont- J gomery Tp., Franklin county, Ohio. Depositions in this action will be taken by the plaintiff, at the Qfflce of , in the town of , county of , and State of , on the day of , a. d. 18 — , between seven o'clock A. M, and nine o'clock v. m. ; and the examination will be adjourned from day to day thereafter. [The plaintiff's deposition will also be taken.] Dated December 28, 18—. [Signed,] A. B. Sec. V. The subpena, its servioe and eetitrn. A subpena for the witnesses must be issued by the ofScer before- whom the depositions are to be taken.J The subpena may be in the form following :* No. 39.] Form of subpena for witnesses. The State of Ohio, county, ss. To W. M. [etc., naming the witnesses.'] Tou are hereby commanded to be and appear before me, [a jus- tice of the peace in and for the township of Montgomery, in said county; or say, a notary public of the State of Ohio, in and for- said county, describing the officer,"] at , in the town of [etc., as in the notice^ on the day of , a. d. 18 — , at o'clock a. m., then and there to be examined and the truth to speak, in behalf of the plaintiff, in a certain action pending* in the court [etc., here name, the court or the tribunal in which the deposition is to be used, as in the notice,] wherein A. B. is plaintiff and C. D. is defendant.f Given under my hand [and official seal,(l)] this day of , A. D. 18—. G. H., J. p. (i) Kev. Stat., | 52V4, 5651. (k) See Eev.-Btat., ? 5247. (j) Kev. Stat.; §5248. i (1) Omit the -words "and official seal," if the subpena is issued by a justice.- 110 DEPOSITIONS. [chap. "Witness may demand fees — Proceedings against a delinquent witness. The subpena may be served by the sheriff, coroner, or any con- stable of the county, or by the party, or any other person.' The sabpena is served either by reading, or by copy delivered to the witness, or left at his usual place of residence ; but such copy need not contain the name of any other -witness.™ A ■witness is not obliged to attend for examination on the trial of a civil action, except in the county of his residence, nor to attend to give his deposition out of the county where he resides, or where he may be when the subpena is served upon him." A witness may demand his traveling fees, and fee for one day's attendance before he is sworn ; and, if not paid, he is not bound to testify. If he attends the second day of taking depositions, he may demand his fees also for that day before testifying.' Sec. VI. Proceedings against witness for disobeying a subpena, WHEN his deposition IS REQUIRED, WITH FORMS, ETC. Disobedience of a subpena, when lawfully ordered, may be pun- ished as a contempt of the officer by whom his attendance is re- quired." If a witness fails to attend, being subpenaed, the officer before whom his attendance is required, may issue an attachment to the sheriff, coroner, or constable of the county, commanding him to arrest and bring the person therein named, before the officer, at a time and place to be fixed in the attachment, to give his testimony .and answer for the contempt." The attachment for the arrest of a witness, by an officer, must be 'Under the seal of the officer, if he have an official seal, and must iSpecify particularly the cause of the arrest.? The attachment against a witness may be in the form following : No. 40.] Form of attachment against a witness. ■The State of Ohio, Tranklin county. To S. S., [sheriff, or say constable] of said county : Whereas, in a certain action pending before the court of common ( 1) Kev. Stat., ? 5246. (o) Eev. Stat., ? 5252. (m) Eev. Stat., ? 5249. (p) Eev. Stat., g 5256. (ji) Eev. Stat., § 5250 (q) Kev. Stat., 1 5251. :rt.] DEPOSITIONS. Ill Proceedings against a delinquent witness. eas of county, in the State of Ohio, wherein A.B. is plaintiflT id C. D. is defendant, the said plaintiff filed with me a notice to e defendant, that he would, on [etc., stating the time fixed for king the df^osition, as in notice and subpena."] And, whereas, on e day of , a. d. , at the request of the plaintiff, I sued a Bubpena in said action, and then delivered the same to C. , constable of said county, whereby one W, W. was commanded [here reciting the substance of the subpena."] And, whereas, said ibpena, onthe — — day of , a. d. 18 — , was personally served 1 the said "W. W. by the said oflScer, as fully appears by his return idorsed thereon. And, whereas, the said W. W. failed to attend, 1 obedience to said subpena, and as he was summoned to do : ' You are therefore commanded to attach the said W. W., so as to ive his body before me, G. H., a justice of the peace in and for le township of , in said county, at my office, [on the day ' , A. D. 18 — , or say forthwith,] as well to answer the State of hio for said contempt in disobeying said subpena, as to give his stimony in the action, in the recital of this writ mentioned ; and ive then there this writ. Given under my hand [and official seal], this 29th day of Decem- r, A. D. 18 — . [seal.] G. H., j. p. Form of return to an attachment. Dec. 28, 18 — . Attached -the body of the within-named W. "W., ho, with L. S. and S. S., his sureties, gave the undertaking for 8 appearance, etc., herewith returned ; whereupon I discharged \ W. from custody. Fees: C. C, Constable. If the attachment be not for immediately bringing the witness ifoi-e the court or officer, a sum may be fixed in which the witness ay give an undertaking, with surety, for his appearance. Such m must be indorsed on the back of the attachment; and if no sum fixed and indorsed, it must be one hundred dollars.' N^o. 41.] Form of undertaking under the attachment. 36 State of Ohio, Franklin county, ss : Whereas, W. W., by process of attachment, issued by G. H., a jus- (q) Kev. Stat., 5 5253. DEPOSITIONS. [CHAP^ Proceedings against a delinquent witness. !e of the peace of the township of -, in said county, has been. rested as well to answer the State of Ohio, on the day of — , A. D. 18 — , at o'clock A. M. [or, p. m.] before G. H., a slice of the peace of the township of , in said county, at his ice, for a contempt by him, the said W. "W., committed, as is ai- red, in disobeying a subpena issued by said justice, aad duly fved on him, as also to then give his testimony, by deposition, in action pending* [etc. ; here follow the form of the subpena, given on weceding page, from the star to the word defendant ; and then pro- id as follows ;]• Now, therefore, we, the said W. "W., and L. S. and S. S., his sure- s, do hereby, in pursuance of the statute in such case made and ovided, promise and undertake, if the said W. W. shall not per- aally appear before said Gr. H., at the time and place designated saiil writ of attachment, as above mentioned, to give his testi" jny and answer for said contempt, that we will pay the State of lio the sum of [if no sum be indorsed on the attachment, insert on» ndred] dollars. Dated, etc. Attest: C. C, Constable. The punishment for disobedience of a subpena, when lawfiilly iered, may be as follows : [f the- witness fails to attend being subpenaed, the officer may e the witness in a sum not exceeding fifly dollars. The fine posed by the officer must be for the use of the party for whom 3 witness was subpenaed. The witness, also, is liable to the pai-ty ured, for any damages occasioned by his failure to attend.'' The judge, justice, or notary public, who issues an attachment ainst a witness, should make an entry of his proceedings in his icial record-book or docket. The entry may be in the form fol- ving: (r) Rev. Stat., § 5254. 3aiI.J PJSPOSIHONS. 113 Froeeedmgs Ag^nst a deliaiueiit witness. Socket entry of proceedings against a witness for disobeying the sub- petia. The State of Ohio, Franklin county : The State of Ohio") against > Proceedings in attachment for contempt. W. W. 3 Dec. 27, 18 — . At the request of A. B. issued a, subpena in a certain action pending [here state the title of the court or tribunal, as thus : Before L. E., a justice of the peace in and for the township of , in the county of , in the State of Ohio,] wherein the said A- B. is plaintiff, and C. D. defendant, directed and then delivered to C. C, constable of said county, commanding the said W. W. to appear before me, the undersigned, a justice of the peace in and for said county of — ■ — , at my office in the township of , in said county, on the day of , A. D. 18 — , at 9 o'clock A. u., to testify, for the purpose of taking the deposition of said W. W. in said action. Dec. 29, 18 — . The said suopena was returned by said 0. C, con^ stable, indorsed : Dec. 28, 18 — . Personally served the within writ upon W. W. [Signed.] C. C, Constable. The said W. "W. disobeyed said subpena, and failed to attend ia obedience to said subpena, and as he was summoned to do. Jan. 4, 18 — . Issued an attachment to 0. C, constable of said county, and delivered same to him, for the arrest of said W. W., to answer for his said disobedience, of said subpena, and contempt [and to testify in said action, on the 6th day of January, a. d. 18 — , at — o'clock A. M., to which time said attachment was made re- turnable. Jan. 6, 18 — , 9 o'clock a. m. Attachment returned by C. C, constable, indorsed : Jan. 6, 18 — . I have [etc., stating the return.^ The said W. W. appeared, and having heard the testimony in the premises relating to said contempt, I do find that said W. W. hath no reasonable excuse for, and that he is guilty of, the contempt and disobedience of said subpena, as hereinabove alleged. It is, there- fore, considered that the said W. W. pay, for the use of the said A. B., a fine of ten dollars, and that he pay dollars, the cost* herein taxed, as follows : [here enter items of costs."] Or. H., J. P. in and for Franklin county, Ohio. 8 114 DEPOSITIONS. [chap. Proceedings against a witness for refusing to testify, etc. Seo. VII. Proceedings against a witness foe refusing to be SWOEN, OR TO TESTIFY; OR TO SIGN A DEPOSITION; WITH FORMS. If a witness whose deposition is required, refuse to be sworn, or to answer as a witness, or to subscribe a deposition, when lawfully 'Ordered, he may be punished as for a contempt of the officer by whom his testimony is required ;' and the officer may fine the wit- ^neBS in a sum not exceeding fifty nor less than five dollars, or may Imprison him in the county jail, there to remain until he submit to be sworn, testify, or give his deposition.^ The fine is for the use of the party for whom the witness was subpenaed." The witness •is also liable to the party injured, for any damage occasioned by ibis refusal to be sworn, testify, or give his deposition. The order of commitment of a witness to prison, maybe directed •^0 the sherifi', coroner, or any constable of the county where such 'Witness resides,' or is at the time. The order of commitment must be under the seal of the officer, if he have an official seal, and must specify particularly the cause ■of commitment ; and if the commitment be for refusing to answer a question, such question must be stated in the order. The order must be executed by arresting the witness, and com- mitting him to the jail of the county and delivering a copy of the •order to the jailer.' The form of the order of commitment may be as follows : Wo. 42.] Form of order of commitment of witness. "The State of Ohio, Franklin county. To S. S., [sheriff, or say constable] of said county: "Whereas, on the 29th day of December, A. D. 18 — , in a certain Action then and still' pending in the court of common pleas of Franklin county, in said state, wherein A. B. is plaintiff and C. D. is defendant, the undersigned, G. H., a justice of the peace in and for the township of Montgomery, in the county of , in said state, at his office in said township, and at the request of the said A. B. and on his behalf, was taking the deposition of witnesses in said action, and W. W., a resident of said county of Franklin, then and there appeared as a witness, in behalf of said A. B. ; and ^here state the contempt as thus .-] The said A. B. requested, and the (r) Bev. Stat., ? 5252. (t) Key. Stat., i 5256. (s) Kev. Stat., § 5254. XIII.] DEPOSITIONS. 115 Proceedings against witness, etc. — Form of return of order of commitment. mndersigned then and there ordered the said W. W. to be sworn as witness in the premises ; whereupon the said W. W. then and there willfully refused to be sworn as a witness in the premises, and the undersigned then and there, for the said contempt of the said W. W. in so refusing to bo sworn, ordered and adjudged that he be imprisoned in the county jail of said county of Franklin, until he .submit to be sworn as a witness as aforesaid: Or state contempt thus: Was sworn and examined ; and upon his :Baid examination as a witness, and while his deposition was then and there being taken, and for the purpose of making the answer to the same a part of said deposition, the following questions were put to him by the said A. B., to wit : \^Sere state the question which the witness refused to answer, or, if necessary, state such of the pre- ceding questions and the answers as will show the scope of the question which the witness refused to answer, and then proceed thus : And th^ said W. W. then and there refused to answer the said question last mentioned, and thereupon the undersigned ordered the said W. W. to answer said question, which he again refused to do ; and the undersigned then and there, for the said contempt of the said W. W. in so refusing to answer said question, ordered and adjudged that he be imprisoned in the countyjailof said cQ\intj of Franklin, until he submit to testify in the premises.] You are therefore ordered to arrest and commit the body of the said W. W. to the jail of said county of Franklin, there to remain 'Tintil he shall submit [to testify, or say to be sworn] as aforesaid; and of this order make legal service and due return. Given under my hand [and ofBcial seal], this day of , A. D. 18—. Form of return to order of conimitment. I executed this order by committing the within-named W. W. to the jail of Franklin county, and by delivering a copy of this order to the jailer.(l) Fees: The proceedings against a witness for contempt, should be en- tered upon the docket, or other oflacial record-book of the officer. (1) A witness so imprisoned by an officer before whom his deposition is being itaken, may apply to a judge of the supreme court, court of common pleas, or probate court, who is authorized to discharge him, if it appear that his impris* onment is illegal. Kev. Stat., ? 5255. 116 DEPOSITIONS. ^OHAP^ Poem of oath, etc., of witneases. The form of such entry can be readily made out from the recital* in the preceding order of commitment. Sec. VIII. Form of oath oe affiemation of the witness. Before testifying, the witness must be sworn or affirmed to testify the truth, the whole truth, and nothing but the truth." The mode of administering an oath must be such as is most bind- ing upon the conscience of the witness." FoEMs OP Oaths and Affiemations. JVo. 43.] Form of oath to a witness. Ton do solemnly swear in the presence of Almighty God, the searcher of all hearts, that you will testify the truth, the whole truthj and nothing but the truth, in the action now pending \here name the court or tribunal in which the action is pending, as in the no- tice,'] wherein A. B. is plaintiff and C. D. is defendant; and this you do as you will answer to God. Form of affirmation to a witness. Tou do solemnly and sincerely declare and affirm, that you will testify the truth, the whole truth, and nothing but the truth, in'the action now pending [here name the court or tribunal in which the action is pending, as in the notice,"] wherein A. B. is plaintiff and C. D. is defendant ; and this you do under the pains and penalties of perjury. Seo. IX Foem of depositions, and mode of taking them. Before any questions are asked of the witness, he should b& sworn. If required by the opposite party, each question should be written down before it is answered. The party at whose instance the witness is called, should be permitted to examine the witnes* in the first place, and without any comments on the testimony, or questions to the witness, by the opposite party. The testimony should be carefully written out in the language of the witness • giving the witness, however, an opportunity to make his language intelligible, and to correct it, and to speak directly to the question propounded. After the party in whose behalf the deposition is (u) Eev. Stat., | 4950. XIII.] DEPOSITIONS. IIT Mode of tailog-^rferm. (taken has examined the witness, the opposite party must be per- tmitted in like manner to cross-examine the witness, and wh«n he is through, the other party may re-examine. ■ No objection to an examination of the witness can "be made, or to his testimony, for incompetency or irrelevancy. Questions of that Jtind, the court, or tribunal before whom the action is pending, will determine when the deposition is offered in evidence. If a question is leading, the other party may have his objection noted ; and if he intend to insist upon the objection when the depo- sition is offered on the trial, he should make the objection at the time the question is written down. The objection may be noted thus : " The plaintiff [or say, the defendant,] objects to this question, as leading." A leading question may, however, be corrected by the party who put it, and thus avoid the objection. The testimony must be written in the presence of the oflScer taking the deposition, either by the officer, the witness, or some disinterested person." The questions, however, may be written by (the parties, or their agents or attorneys. The depositions may be in the form following : No. 44.] Form of depositions. Depositions of witnesses taken in an action pending £in, etc. ; j the assignor after he has parted with the claim or the property, are not admissible to affect any one claiming under him." 4. Admissions by an agent— '^h^ admissions of an agent as to acts within the scope of his authority, and made when so acting, are as conclusive evidence against the principal, as if the .principal him- self had made the admissions. But the admissions of an agent, not made at the time of the transaction, but afterward, are not evidence. Thus, the letter of an agent to his principal, containing a narrative of the transaction in which he had been employed, ia not admissible in evidence against the principal. In such case the agent himself is the proper witness.^' Before the admissions of an agent can. be given in evidence, the fact of bis agency must be proved," and it must appear that the admission was made with regard to a matter within the scope of the agent's authority .f*^ 5. Admissions by the wife. — In, general, the admissions of the wife, can not be given in evidence against the husband. Thus, the wife's receipt for wages earned by her, is not evidence against the busband,° unless it be under circumstances in which she is, by stat- ute, entitled to her own. earnings. Indeed, in all transactions in which she has authority, by statute, to contract, her admissions may be received in evidence like any other principal. And if the hus- band suffer her to transact business for him, she may be considered as his agent, and her admissions and acts in relation to such busi- ness, or the husband's subsequent acknowledgment or ratl'fication of her acts, will be as binding upon him as the admissions and acts of any other agent.' 6. Admissions or conduct upon which third persons have acted, etc. — Thei*e is a class of admissions, by conduct and statements, which a person is afterward, by law, precluded from denying or proving to be untrue, so that his rights are determined as if his falsehoods or mistaken statements were facts. Such admissions and state- (a) 11 Johns. 437 ; 4 Serg. & E. 174; (d) 17 Eng. C. L. 133. 4 Mass. 702. (e) 2 Stra. 1094, and see 6 T. E. 680. (b) 4Taunt.565;10Ves.l28;5Eng. (f) Wright, 596; 4 Wend. 465; 1 C. L. 454 ; Wright, 595, 662. Esp. 142. See ante, p. 126. (c) 1 Esp. 61 ; 3 Eng. C. It. 386. 172 EVIDENCE. [chap Admissions upon -which others have acted. ments, when in a sealed instrument, are called estoppels in deed; wber they are by word of mouth, or conduct, or simple contract, they are called estoppels in pais. We have already in this section treated of estoppels in deed ; we now proceed to state the rules of law relating to estoppels in pais. If a person make declarations or statements to induce others to act upon them, or to acquire some advantage to himself, he can not afterward, as against persons who have been induced thereby, in good faith, to act upon such declarations or statements, deny their truth. And admissions, whether of law or of fact, which have been acted upon by others, made with a view to induce such action, are conclusive against the party making the admissions, in all cases, between him and the persons whose conduct he intended to influ- ences And, in such case, it is immaterial whether the admissions were made in express language to the person himself, who acts upon them, or are implied from the open and general conduct of the party. Good faith forbids such person from afterward denying the truth of his statements ; but strangers casually hearing of such declarations, can not, by acting upon them, preclude the party from showing the truth.'' So, in general, a party is not precluded from showing his state- ment was n^t correct, unless it appear that he either acted in bad faith, or, if he made the statement under an honest mistake, it fur- ther appear that he knew the party to whom it was made would act upon it to his prejudice. Thus, where A. informed B. that he was about to purchase of 0. certain property if he could get a good title, and inquired of B. whether he had any lien or claim on it, and thereupon B., under an honest mistake, informed A. that he had no lien or claim, and A., on the faith of this statement, pur- chased the property, it was held that B. could not assert his lien on the property.' But the party making such inquiry must act in good faith. Therefore, the holder of a negotiable promissory note, purchased before maturity and for value, but with notice that the note had been obtained from the maker by fraud and without consideration, (g) 5 Ohio, 197 ; 17 Conn. 355 ; 4 407 ; 20 Id. 655 ; 14 Ohio St. Pjcl£. 220 1 4 Ohio, 371, 384; 5 450; 33 Id. 581. Id. 833 ; 8 Id. 529; 10 Id. 298; (h) Id. Ih.; 16 Ohio St. 321 ; 14 Id. 13 Id. 400; 14 Id. 71; 15 Id. 102, 414; 13 Mass. 82;. 2 i08, 467; 16 Id. 431; 17 Id. Greenl. 46. - (i) 18 Ohio St. 38; 14 Id. 414. XIV.] ENIDENCE. 173 Admissions upon which others have acted. can not, by way of estoppel, prevent the maker from setting up such defenses as against him, by showing that the maker, before the purchase, had informed him that the note was all right, and would be paid at maturity, if it appear that the maker, at the time such declarations were made, was ignorant of such fraud and want of consideration, and further, that the holder at the time believed the maker ignorant thereof.^ ^ If, however, the holder had informed the maker of the facts which had previously come to his knowledge, and the maker had then said the note was all right, and this induced the holder to purchase it, the maker would have been concluded.^ To further illustrate the preceding remarks : If by conduct, or declaration, a person inducen others to believe that he is a partner, or knowingly permits his name to be used as one of a firm, he will be chargeable as a partner in all transactions in which it may be reasonably presumed that credit was given on the faith of hi i being such ; and it is immaterial whether he was or was not u member of the firm. So, if a man cohabits with a woman, and treats her in the face of the public as his wife, although, if not married to her, he can acquire no rights as against others ; yet if others are induced thereby to supply her with goods, the reputed husband, in an action therefor against him, will not be permitted to disprove or deny the marriage.^ So, if one stands by at a public or private sale, and sees his goods sold as the property of another, having a knowledge of his rights, and encourages the purchaser to buy, concealing his title, he can not afterward set up his title against the purchaser, or against those claiming under the purchaser.™ The written agreement of attorneys, dispensing with the legal proof of facts on the' trial, comes within the same rule." Verbal admissions, however, which have not been acted upon, and which may be controverted without any breach of good faith, are not held conclusive, but may be shown to be erroneous." Thus, where a man cohabits with a woman, and treats her in the face of the public as his wife, when he in fact was never married to her, ( j) 22 Ohio St, 554. Hill, 215 ; 11 Ohio St. 42 ; 2 li (k) Id. lb. 510. (1) 2 Esp. 637. ' (n) 1 Greenl. Ev., sec. 27. (.m) 4 Ohio, 858; 15 Id. 84, 467; 4 (o) 1 Doug. 174; 4 Burr. 2057; 2 Met. 381 f 8 M.. & W. 616; 3 . Wils. 399. 174 EVIDENCE. [CHAP_ Admissions from siloBce or conduct. in an action between the reputed husband or wife and another per- Bon, in relation to matters in which the latter has not acted upon the representation of the existence of a marriage.relatioa, the fact tliat they are not married may be shown by the reputed husband or wifej and they will then be competent witnesses for each other.p The declarations of third persons are receivable in evidence against the party who has expressly referred another to him for information in regard to an uncertain or disputed matter. Thus, when the fact of the delivery of goods was in dispute, and it was claimed that the defendant received the goods from the plaintiff through a drayman, and the defendant had said, "If the drayman will say that he did deliver the goods, I will pay for them," it was held that the affirmative declaration of the drayman was proper evidence of the delivery."* 7. Implied admissions from silence. — Admissions may be implied from the acquiescence of a party, either in what is done or said by a third person. Thus, if a statement has been made in the hearing of a party, the language of which was fully understood by him, and made under circumstances which afforded him an opportunity to deny, correct, or explain it, and which called naturally for some reply, and the party was silent, it is fair to presume that he acqui- esced in the statement, and it may be given in evidence against him. But if a statement is made in the hearing of a party, but which he did not fully understand, or under circumstances which did not call for a reply, or his reason for not replying arose from some other cause than silent acquiescence, be is not to be affected by such statements; for there is then no implied admission of their truth by silent acquiescence.'' And so, where a party is to be charged by his acquiescence in the conduct or demeanor of another, affecting his rights, it must plainly appear that such conduct or demeanor was known to him; and the circumstances must be such as afford him an opportunity to act or to speak, and such also as would naturally call for some action or declaration from men similarly situated.' Thus, where a laDullord knowingly and quietly suffers a tenant to make improve- (p) 4 Bing. 610; 5 C. & P. 12; 5 N. (r) 11 OMo St. 42; 28 Id. 888. Hamp.452. (s) 8 Taunt. SO; 1 Esp. 366, 229. (q) 1 Campb. 866, note ; 6 Esp. 74 ; 5 Id. 145; 8C. &P. 632. XIV.] IVIDENGE. 175 Admissions to obtain a coHipromise — By criminal. ments and altarationg, it is evidence of his consent to the altera- tions. So, daily entries in an account-book, constantly open to the party's inspectioa, are admissions against him of the matters therein stated;' So, the members of a firm and of a company are, in general, chargeable with knowledge of the entries in their books, made bj their agent in the course of their business, and with their true meaning, as understood by their agent." So, the entry of a charge against a particular person, or the making out a bill against him, is an admission that the goods were furnished, or work done, on that person's credit.'' Where a commission merchant from time to time sends an account of sales to his principal, who makes no objectioin to the sales, and draws for the balance of the account rendered, it is a ratification of the sales, and the principal can not afterward recover for any alleged violation of his instructions as to the teirms of the sale." 8. Admissions to obtain a compromise. — Concessions or admissions for the sake of making peace, and compromising or getting rid of a suit, are excluded as evidence, on grounds of public policy. But, to exclude distinct admissions of facts, it must appear that they were made under the faith of a pending treaty, and into which the party was probably led by the confidence of a compro- mise taking place. For if, Vhile tlie parties are endeavoring to adjust a compromise, an admission is made of an independent fact, because it is a fact, and not made as a concession to further the compromise, such as the handwriting of the party, or the like, it will be received in evidence.'' 9. Admissions by a person charged with a crime. — Voluntary con- fessions of the commission of a crime are received in evidence. If, ihowever, threats or promises are made to inciuoe the confession, and which influence the person charged to make the confession, it can not be received m evidence. To exclude the collfessi!^n, the threat or promise muet be such as is calculated to induce a hope of advantage or fear of barm: as "it will be better for you to confess," or, " it will be worse for you not to confeea" But for the officer to falsely say, "Your accomplice has blowed on yon, and will testily to your guilt," holds out no inducements to swerve from the truth (t) 1, Stark. 405; 1 S. & E. 398 (w) 11 Ohio, 360. (u) 6 Hill, 218; 19 Ohio, 44. (x) 2 Ohio St. 583. (V) 9 B. & C. 78, 86, 90, 91. (y) 25 Ohio St. 558. 176 EVIDENCE. [chap. How admiasions construed. and a confession made after such false statements will be received in evidence.^ If the representations or threats were made by, or in the pres- ence of a person having authority or control over the prosecution of the accused, and were such as might influence the accused, it is jjreriumed that the confession afterward made was induced by such representations or threats, unless it appear that their influence was totally done away before the confession was made. If, on the other hand, the representations or threats were made by a person having no such authority or control, it is not necessarily to be presumed that they induced the confession. In such latter case, the justice is, to determine whether in point oi fact it was thus produced. In doing so, he is to look at the circumstances, among which are the strength or weakness of the prisoner's intellect, his knowledge or his ignorance; for the question is not what the prisoner ought to have believed, but what did he believe.^ The burden of showing that the confession was improperly ob- tained rests on the defendant, and he may object and show it before the confession is received in evidence.^ , 10. How admissions construed. — It is a general rule, applicable to all verbal admissions, that the whole admission is to be received in evidence. Hence, if the defendant has rendered to the plaintiff an account, and the plaintiff produces it on the trial, the charges, or debits, as well as the credits, are considered in evidence.* So, in an actionfor killing the plaintiff's dog, the statement of the defendant that the dog assaulted him on the highway, and he therefore killed him, it was held that the admission must be taken together.*" Although the whole of what a party said at the same time, and relating to the same subject, must be given in evidence, it does not follow that all the parts of the statement are to be regarded as equally worthy of credit ; and it isfor the justice, or jifry, who try the cause, to determine how much of the statement is entitled to credit, and whether, considering the whole testimony, the ex- culpatory part is true or false." (y) 13 Ohio St. 481. (b) 10 Johns. 365; 34 Ohio St. 212. (z) 2 Ohio St. 583. (c) 23 Ohio St. 146. (a) 1 Eng. C. L. 92 ; 12 Johns. 424. (d) 25 Ohio St. 464. XV.] THE TEIAL BY JUEY AND ITS INCIDENTS. 177 One hour allowed parties," etc. CHAPTER XV. THE TRIAL BY JURY AND ITS INCIDENTS. Sec. I. Challenging, impaneling,- and swearing the juey. 1. -Talesmen. 2. Challenge of jurors. , 3. Form of oath to jury and to witnesses. II. Conduct of trial before a jury. III. The verdict and its form. IV. Proceedings when the jury can not agree. V. Withdrawing a juror. VL Voluntary dismission of the action by the plaintiff. VII. Payment of jury fee; entry of verdict, and judgment thereon. viii. New trial. IX. Bills of exception. 1. In what cases allowed. 2. For what a bill of exception may be taken. 3. When exceptions to be taken. 4. General requisites of bill of exception. 6. Forms of bills of exception. 6. Docket entry of bill of exception. In the preceding Chapter XI., section 8,^ the reader will find the proceedings, with forms, in relation to a jury, from the time a jury is demanded, to the time of the attendance of the jury, on the day of trial. The trial by jury and its incidents will now be stated. Seo. I, Challenging, impaneling, and swearing the jury. The justice, if necessary on account of the absence of a witness, a party, or a juror, usually waits an hour after the time fixed for the trial, for their attendance, and then proceeds with the trial, (x) Ante, p. 96. 178 THE TEIAL BY JURY AND ITS INCIDENTS. [CHAiP. Who exempt from aervice— Talesmen — Challenge of jurors. unless he is engaged in another trial. If engaged in one trial, he may postpone another until its close." 1. Who exempt from service. — Public oflScers, clergymen, and priests, physicians, attorneys at law, members of the police force or firemen employed by the authority of a municipal corporation, acting volunteer members of companies for the extinguishment of fires, organized -under and subject to the control of a municipal corporation, and persons who serve as active members of such com- panies for five consecutive years, are exempt from service on juries.* A juror having served for three weeks of any year, is exempt from further service during that year." These exemptions are privileges 'Simply, and may be waived by the juror, and are no ground of challenge.* 2. Talesmen. — "When ready to proceed to trial, the nonstable will call over the names .of the jurors who have bo&n sammoiied. If, &ova challenge or other cause, the panel shall not be fuJl, the con- stable may fill the same in the same manner as is daaeby the sher- iff in the court of common pleas." In the court of eommen pleas, in such case, the sheriff summons a sufficient number of talesmen to make up the deficiency; and no person in or about the court- house can be selected without the eonseHt of both parlies.' 3. Challenge of jurors. — When the panel is full, the plaintiff first, and then the defendant, and so alternately, may challenge a juror for cause — that is, for competency .s The question of the compe- tency of the juror must be tried by the justice immediately, and for this purpose he may examine the juror or witnesses under oath.s A pei'eiaapbary ehaJUflrige of two jurorrs — ^th»t is, a cbafMenge without (a) Key. Stat., ? 6482. (e) Eev. Stat., § 6553. (b) Kev. Stat., § 5180. (f) Eev. Stat., §§ 5171, 5178. ^c) Eev. Stat., § 5179. (g) Kev. Stat., | 6555. (d) 24 Ohio St. 206. XV.] THE TRIAL BT JURY AND ITS INCIDENTS. 179 Forms of oatbs, etc., to jury, witnesses, etc. asBigning any cause— is allowed in the court ,of common pleas ; but no such peremptory challenge is allowed before justices. The following are proper grounds of challenge for cause, and ar» set forth in the statute : If the juror has been convicted of any crime, which by law renders him disqualified to serve on a jury ; or has an interest in the cause; or has an action depending be- tween him and the party ; or has been formerly a juror in the same cause ; or is either party's employer or employe, agent, counselor, steward, or attorney, or is bona fide subpenaed in the cause as a witness ; or is akin to either party,' or to his attorney, he may be challenged and excluded from the jury. So, there may be such a settled prejudice against, or partiality for, one of the parties to the action, existing in the mind of a juror, or therQ may be such a want of competent knowledge of the English language, or other cause, as to render him incompetent as a juror." 4. Forms of oaths and affirmations. [No. 48.] 1. Form of oath to the jury. You, and each of you, do solemnly swear, in the presence of Almighty God, that you will well and truly try the matter in difference between A. B., plaintiff, and C. D., defendant, and a true verdict give, according to the evidence — so help you God. 2. Form of affirmation to a juror, or jurors. You [and each of you] do solemnly declare and afSrm, that you will well and truly try the matter in difference between A. B., plaintiff, and C. D., defendant, and a true verdict give, according to the evidence ; and this you do under the pains and penalties of pequry — so help you God. 3. Form of oath to witnesses. You, [and each of you] do solemnly swear, in the presence of Almighty God, the searcher of all hearts, that the testimony you . shall give to the court [and, jury] in the cause now in hearing, wherein A. B. is plaintiff, and C. D. is defendant, shall be the truth, the whole truth, and nothing but the truth, as you will answer to God. (i) Bev. Stat., ? 5176, 5177. 12 180 THE TRIAL BY JURY AND ITS INCIDENTS. [OHAP. Fomu of oothg, etc., to jury, witnesses, etc. 4. Form of afflrmatibn to witnesses. You [and each of you] do solemnly and sincerely declare and aflSrm, that the testimony you shall give to the court [and jury] in the cause now in hearing, wherein A. B. is plaintiff, and C. D. is defendant, shall be the truth, the whole truth, and nothing but the ■rtruth ; and this you do under the pains and penalties of perjury. The form of the oath should always be such as the witness be- lieves most binding on his conscience, and that he will testify the truth, the whole truth, and nothing but the truth.J 5. Form of oath to witness, when he swears upon the Holy Bible. You do solemnly swear, upon the Holy Evangely of Almighty God, that you will testify the truth, the whole truth, and nothing but the truth, in the cause now pending here before me \or, the jury,] whereih A. B. is plaintiff, and 0. D. is defendant; and this you do as you shall answer to God. Some religious sects do not consider an oath binding on their 'Consciences unless it be administered thus : "You do solemnly swear hy the Ever-living God, that you will "testify," etc. The form of the oath should be so varied as to meet the conscientious opinions of the witness, at the same time retain- ing its substance. ■6. Form of an oath to an interpreter, when the witness does not under- stand the English language. You do solemnly swear, in the presence of Almighty God, the isearcher of all hearts, that you will truly interpret to W. S. \the witness,'] the oath which shall be administered to him as a witness in the cause now in hearing, wherein A. B. is plaintiff, and C. D. is defendant, and truly interpret the testimony of the said W. S. 7. Form of an oath or affirmation, as to the truth of an affidavit. You do solemnly swear, in the presence of Almighty God, th© searcher of all hearts, [or if the person.affirm, say. You do solemnly and sincerely declare and aflSrm,] that the matters- set forth in this paper, and to which you have subscribed your name, are true, as ( j ) Rev. Stat., ? 5260 ; 33 Ohio St. 27. An affirmation has the same force and efl'ect ns an oath, Bev. Stat., § 1. XY.] THE TRIAL BY JUET AND ITS INOIIffiNTB. 181 FroeeediBgs before the jiory. you verily belie\re [Aere aM,ifthe witness afftvm : Bind this you di> ■under the pains and penalties of perjury.'' Sec. II. Conduct of the teial before a juibt. "When the jury have been sworn, the trial usually proceeds in the following order:' 1. The plaintiff briefly states his elaim, and may briefly state the •evidence by which he eSpects to sustain it. 2. The defendant then briefly states his defense, and may briefly «tate the evidence he expects to offer in sapport of it. 3. The party who would be defeated if no evidence were given •on either side (who is generally the plainiiff), must first produce his evidence ; the adverse party will then produce his evidence. 4. The parties will then be confined to rebutting evidence, unn- less the justice, for good reasons, in furtherance of justice, permits them to offer evidence in their original case. 5. The parties may submit or argue the case to the jury. In tbe ;argument, the party required first to produce his evidence, has the •opening and conclusion. If several defendants, having separate •defenses, appear by different counsel, the justice may arrange their relative order. ' ' It will be observed that after the evidence is closed, further evi- dence can not be introduced, as a matter of right ; yet the justice may, if he deems it expedient and proper, permit further evidence to be given, even after the cause has been argued by the parties or their attorneys." The justice, however, can not, after the testimony is closed, and the case argued, adjourn over the trial to another day for ftirther testimony, unless both parties consent. In the argument of the ca,use, the counsel, or party, have a right, "hj way of argument or illustration, to read from a book, or other publication of science or art^ quotations applicable and pertinent to the questions in dispute, making sueh quotations a part of bis own aigument." Whenever, in the opinion of the justice, it is proper for the jury to have a view of the property which is the subject of litigation, or of the place in which any material fact occurred, he may order them to be conducted in a body, under the charge of an officer, to (1) Rev. Stat., ? 6190. (n) 1 Ohio St. 888, (m) 7 Johns. 306; 4 Cowen, 450 ; 38 Ohio St. 444. 182 THE TEIAL BT JUET AND ITS INCIDENTS. [CHAP; The verdict and its form. the place, which must be shown to them by some person appointed; by the justice for that purpose. "While the jury are thus absent, no person, other than the person so appointed, should speak to them on any subject connected with the trial. After hearing the proofs and allegations of the parties, the jnrj are kept together in some convenient place, under the charge of a- constable, until they have agreed upon their verdict, or are dis- charged by the justice." The oflBeer having the jury under his charge, must not suffer any communication to be made to them, or make any himself, except to ask them if they have agreed upon their verdict, unless by order of the justice ; and the constable must not, before their verdict is rendered, communicate to any person the state of their delibera- tions, or the verdict agreed upon.? , After the jury have retired for deliberation, if there be a dis- agreement between them as to any part of the testimony, or if they desire to be informed as to any part of the law arising in the case, they may request the officer to conduct them to the court, where- the information upon the point of law shall be given, and the jus- tice may give his recollection as to the testimony on the point in. dispute, in the presence^ipf, or after notice to the parties or their counsel.^ Sec. III. The verdict and its form. When the jury have agreed upon their verdict they must deliver it to the justice, publicly, who must enter it upon his docket. After the jury is called over, they are asked by the justice ■whether they have agreed upon a verdict, and if the foreman answers that they have agreed, the justice asks them whether they find for the plaintiff or the defendant. The justice then, and before reading the verdict or making known its contents, directs the suc- cessful party to pay the jury fee.(l) After the jury fee is paid, the justice reads the verdict aloud, and asks the jury whether it is^ their verdict. The verdict must be written, and must be signed by the foreman If any juror disagrees, the jury must be sent out again ; but if no ^disagreement is expressed, and neither party requires the jury ta (o) Eev. Stat., g 6567. fq) Eev. Stat, § 5194, (p) Eev. Stat., g 5192. (1) See po.«t, p. Ifi5. XV.1 THE TRIAL BY JUET AND ITS INOIDBNTS. 183 Forms of verdict. ^e polled, the verdict is complete, and the jury discharged from the ^ase. If, however, the verdict be defective in form only, the same jnay, with the assent of the jury, before they are discharged, be corrected by the justice.' "When the verdict is announced, either party may require the jury to be polled, which is done by the justice asking each juror if it is hifi vordict. If any one answers in the negative, the jury must again be sent out for further deliberation.' The form of the verdict will of course vary in each case. The following forms must, therefore, be modified according to the «ubject-matter of the action: No. 49.] 1. Forms of verdicts. ■Form when the action is for money, on a note, bond, or other contract. We, the jury, do find and assess the plaintiff's claim herein -against the defendant, to the sum of dollars. We do further 'find and assess the defendant's set-off herein against the- plaintiff, to the sum of dollars ; leaving the amount of the recovery of the plaintiff \or say defendant, as the balance may 6e,] herein dollars. e J- J'- Foreman. 2. Another form. We, the jury, do find in favor of the plaintiff on the_/?rsi, second, and third items of his bill of particulars, and do assess the amount of his recovery on those items at dollars. As to the residue uof the items of said particulars, we find in favor of the defendant. "We do further find in favor of the defendant, on the second and fourth items of his set-off, and do assess the amount of those items .at dollars. We also find for the defendant, on the items of his counter-claim, and assess his damages thereon at dollars. As to the residue of the items of said set-off and counter- ..claim, we find in favor of the plaintiff. And deducting the amount of said set-off and counter-claim allowed, from said amount found for the plaintiff, {or, if the balance is in favor of the defendant, say, .defendant,] leaves the amount of the recovery of the p^aiwii^herein - — - dollars. J. J., Foreman. (r) Kev. Stat., ? 5198, 5199. 184 THE ITEIAL feT Jtmr AND ITS INCIDENTS. [CHAK. Proceedings when jury can not agree— Withdrawing jurors — ^Dismission. 3. Form of verdict wfhen the action is for damages. We, the jury, do find the complaint oT the plaintiff as set fortb in his bill of particulars true, and do assess his damages in the premises at dollars. J. J., Foremaii. 4. Ter diet for the defendant. "We, the jury, do find for the defendant. J. J., Foreman. Sec. IV. Pkooeedings when the jury can not agree. Whenever the justice shall be satisfied that a jury, sworn in any cause before him, can not agree in their verdict after having con suited upon it a reasonable time, he may discharge them and con- tinue the cause, and may, if required by either party, proceed ta- strike another jury as hereinbefore stated. In such case, the causp must be continued to such time as the justice thinks reasonable,, unless the parties or their attorneys agree on a longer or shorter- time, or unless they may agree that the justice may render judg- ment on the evidence already heard before him.* Indeed, when the jury can not agree and are discharged, the proceedings in the cause are, in all respects, the same as upon the- return of the. summons." Sec T. Withdrawing a juror. Sometimes the parties agree to withdraw a juror, in which case the cause is adjourned over by the justice, to another day, for trial.- The docket entry of the justice in such case, after stating in the usual form, the impaneling and swearing the jury, proceeds thus ■ "Thereupon, by consent of parties and my assent, one of said- jurors is withdrawn ; whereupon it is ordered, that the remaining^. jurors be discharged, and the cause [at the costs of , is] ad- journed for trial, to January 3, 18 — , at 10 o'clock a. m., at which time saidjurors are ordered to appear." Sec. YI. VoiiTNTART dismission op action by plaintiff. When there is an unexpected defect or omission in the testimony ,_ or the plaintiff, from any other cause, apprehends that the jury- will find for the defendant, and he desires to have another oppor-^ (t) Kev. Stat., i 6559. (u) Eev. Stat., § 6-561. XV.] THI TRIAL BT 3VB.r AND ITS INCIDENTS. 18& Payment of jury fee — ^Eatry of verdict. tunity to try the action, he may voluntarily dismiss the aotion, without prejudice to a new action. The plaintiff may do this on the trial, and at any time before th« cause is finally submitted to the jury for their verdict.' But he can not do it after both parties are through with their proofs and allegations, and the justice liaa closed his remarks or charge to the jury. The defendant, however, may still proceed ; for the statute pro- vides that where a set-off or counter-claim has been filed before the dismissal of the ease by the plaintiff, the defendant has the right of proceeding to the trial of his claim, although the plaintiff may have dismissed his action.'' "When the plaintiff voluntarily dismisses his action, judgment i* entered against him for costs.' Sec. VII. Payment op jury pee ; entry op verdict and judg- ment THEREON. The statute provides, thatw;hen the jury shall have agreed upon, their Verdict, they shall deliver it to the justice publicly, who shall enter it upon his docket.* It also provides, that upon the verdict being delivered to the justice, and before judgment is rendered thereon, each juror shall be entitled to receiv-e fifty cents at the bands of the successful party, which shall be taxed in the costs against his adversary .y The statute further provides, that upon a verdict the justice must immediately render judgment accordingly.^ Immedi- ately, means at least within twenty -four hours ; otherwise the judg- ment may be reversed on error.* Where a justice failed to enter a judgment on a verdict for ten months, it was held that the suit was thereby discontinued, and the verdict no bar to another action.* The steps to be taken in case the successful party refuses or neg- lects to pay the jury, are not provided by statute, and judgment must be entered on the verdict, although the jury fee is not paid.* The justice may, however, enter the judgment, and also an order directing the party to pay the jury fees, and enforce the order by proceedings as for a contempt." (v) Kev. Btat., | 6.576. (z) Eey. Stat., { 6579. (w) Eev. Stat., g 6577. (a) 4 Ohio St. 593; 12 Id. 530. (x) Kev. Stat., ? 6558. (b) 12 Id. 530. (y) Eev. Stat., § 6564. (c) See post, title Contempt. 186 THE TRIAL BT JURY AND ITS INCIDENTS: [CHAP. New trial — Bill of exception. Sec. VIII. New trial. Where there has been a jury trial before a justice, he may, on motion, and if satisfied that the verdict was obtained by fraud, par- tiality, or undue means, set aside the verdict and grant a new trial,* at any time within four days after entering the judgment. If a motion for a new trial be made on the day of the former trial, and in the presence of the opposite party, it will be sufficient notice of the motion ; otherwise the party applying for a new trial, must give reasonable notice of the application.^ The testimony of jurors will not be received to impeach their verdict.' If a new trial is granted, the justice must set a time for the new trial, of which the opposite party must have at least three days' notice.s No. 50.] Docket entry of motion for new trial, etc. After entering the judgment, proceed as follows: On the said day of trial and when said verdict was read, the defendant [or say plaintiif ] moved, in the presence of the plaintiff, for a new trial, on the ground that said verdict was obtained by fraud ; [or say, parti- ality ; or say undue means.] Motion set for hearing, by consent of parties, January 10, 18 — , at 2 o'clocli p. m. January 10, 18 — , 2 o'clock p. m. The parties appeared. L. M. and J. S. sworn and examined as witnesses, on behalf of , [etc.] On consideration whereof, I do* find that said verdict was obtained by partiality ; [or say by fraud ; or say undue means, according to the fact f^ and the same is set aside and a new trial granted, to take place, January 14, 18 — , at 2 o'clock p. m., to which time the cause is adjourned. The plaintiff demanding a jury, the following jurors selected, to wit : [etc., proceeding, in all respects, as upon the return of a summonsy\ If the motion for a new trial is overruled, proceed with the docket «ntry as in the preceding form to the *, and from that point as fol- lows : " overrule said motion, at the defendant's costs." Sec. IX. Bill of exception. 1. In what cases allowed. — In cases before a justice, whether tried by a jury or the justice,' either party has a right to except to the opinion of the justice upon any question of law arising during the (d) Eev. Stat., i 6560. (g) Kev. Stat., | 6560. (e) Eev. Stat., ? 6561. (h) Rev. Stat., ? 6546. (f ) 10 Ohio, 459. ( i) Eev. Stat., §' 6565. ■XV.] *HE TRIAL BT JTTET AND ITS INCIDENTS. 187 For what and when exceptions taken. trial. When either party alleges such exception the justice must sign and seal a bill containing such exceptions if truly alleged, with the point, decided, so that the same may be made a part of the record in the cause.J Neither party can, after the decision of the case, have the evidence set forth in a bill of exceptions with a view to try the question on error, whether the evidence was suflScient to prove the facts and justify the verdict of the justice, or the verdict of the jury.^ 2. For what a bill of exceptions may be taken. — As the right to «xcept exists only when the justice decides a question of law, a bill ■of exceptions is generally founded upon an objection to the opinion of the justice, pronounced during the trial, whereby he admits or rejects a witness as' competent or incompetent to testify, or admits as relevant and proper, or rejects as irrelevant and improper, doc- umentary or paper evidence, or parol testimony. Exception can also be taken to the opinion of the justice given to the jury, as to ,the law arising on the facts. The jury, of course, decide upon the iacts of the case, and the justice has nothing to do with their de- termination. But when the facts are ascertained, it is the duty of ;the justice, if requested by either party, to declare, by a charge to the jury, what the law is upon the facts which the jury are to find, A refusal to charge the jury upon a question of law, may be also -excepted to.' An erroneous opinion of the justice, or his refusal to instruct, upon a point of law having no possible connection with the case, -can not be made available on petition in error.™ Hence the party excepting must so shape his bill, of exceptions as to distinctly point -out wherein he may have been prejudiced by the decision ex- cepted to." 3. When exceptions to be taken. — When the justjce decides a ques- :tion of law, if either party intends to except to it, he must so state a,t the time the decision is made ;° and, although the bill of excep- tions need not be entered upon the docket until after the judgment, unless the parties require it, yet it should always be so drawn as to (j) Rev. Stat., § 6565, 5190. 123; 13 Id. 231; 14 Id. 592; 11 (k) 22 Ohio St. 537; 26 Id. 447. Id. 489. (1) 5 Cowen, 243; 15 Ohio, 123; 6 (n) 4 Ohio, 79, 388, 889 ; 1413 386; . Wend. 268; 17 Johns. 218. 15 Id. 156. of action upon which the judgment was rendered.'] The said judg ment remains due and unpaid. Summons in said action was is- Bued against said E. F., but was not served, and he was not sum- moned, all which will more fully appear by the docket and files of said justice here shown, and reference thereto had. The plaintiff asks judgment that the said B. F. be made a party defendant to said judgment jointly with said 0. D., and execution, and remedy thereon accordingly. The judgment of the justice may be entered in the following form : I do find that the facts and averments of the plaintiff, set forth in his bill of particulars, are true ; it is therefore considered that the said E. F. be, and he is hereby, made a party defendant to said judgment described in said bill, and entered on p. of my docket, and that said plaintiff have execution thereon and remedy as if said judgment had been rendered against said parties jointly. If the suit is on the joint contract or instrument, the bill of par- ticulars will describe or copy the joint contract as the cause of ac- tion, and then set forth the former proceedings, judgment, etc., and ask for judgment in the usual form against the defendant. 206 THE DOCKET AND DOCKET BNTEIB8. [OHAF. The docket and entries therein. CHAPTER XIX. THE DOCKET AND DOCKET ENTRIES. 8eo. I. The docket and entries therein. n. Forms op docket entries. 1. When the action is on an account — an adjournment — subpens for witnesses — trial by the justice — judgment for the plaintiff. 2. When the action is on a note — ^the plaintiff's partners — sum- mons and order of arrest — adjournment — jury demanded — defendant discharged on undertaking — ^bill of particulars of set-off beyond the jurisdiction of a justice — jury trial — bills of exception on trial — verdict on both bills of particu- lars — verdict and judgment for defendant. S. Judgment of dismission without prejudice to a new action. 4. Judgment of dismission when there is a set-off or counter-claim. 5. Judgment of nonsuit. 6. Trial and judgment on the merits against the plaintiff. 7. Judgment by confession. 8. Entry of action for trial without a summons. 9. Action by an executor against an administrator. 10. Docket entries after judgment. lu. Punishment for altering, etc., docket and files. IV. Disposition of docket, etc., upon the expiration of a justice's term of office; proceedings thereon bt successor, etc. Sec. I. The docket and entries therein. Every justice of the peace must ke^p a book, denominated a docket, which is furnished by the trustees of the township." A justice is- required. by law* to keep an alphabetical index to his docket. Inithis index he must enter the names of the parties to each judgment, directly and inversely, with a reference to the page of the entry^ The names of each party, plaintiffs and de- fendants, must be entered in the index in the alphabetical order (a) Bev. Stat., i 594. (b) Bev. Stat., i 696. SIX;] THE DOCKET AND DOCKET ENTBIES. 207 What entries to be made therein. of the first letter of the family name ; he must number the cases jirogressively on his docket, and must correspondingly number the papers in each case. He must also keep the entire papers in each action together, and in packages of proper and convenient size ; and these packages must be kept in the ol-der in which the cases are numbered on his docket. The inverse entry in the index above mentioned, which will give the names, alphabetically, of defendants under the first letter of their family names, may be entered thus : When the suit is John ^mith, plaintiff, against James Jackson, defendant, the name of the defendant would be entered under J, as follows : Jackson, James, ads. John Smith. If there are two or more plaintiffs or defendants, each name ehould be indexed under the proper alphabetical letter, thus : If there were three plaintiffs, John Smith, James Doe, and William Eoe, against Peter Pence, they would be indexed thus : S. Smith, John, and others, v. Pence. D. Doe, James, and others, v. Pence. R. Eoe, William, and others, v. Pence. The present law requires much more full and detailed entries ■upon the docket than were prescribed by the old statute. Justices of the peace have perhaps no reason to complain of this change, inasmuch as they are now paid a reasonable compensation for the labor of making the entries. The proceedings in civil actions are required, specifically by statute, to be entered upon the docket, "as follows : 1. The title of every action in which the writ is served, or when the parties voluntarily appear. 2. The date of the writ, the time of its return, and if an order to arrest tlie defendant or attach property was made, such fact must be stated, together with the afSdavit iipon which such order was made. '( 3. The filing of the bill of particulars of either party and nature thereof, and when not of too great length, the same shall be entered ^t leqgth on the docket. v4. Which of the parties, if either of them, appear at the trial. ' 208 THE DOOKEX AND DOCKET ENTKIE8. [OHAP. What entries to be made therein. 5. Every adjournment, stating on whose application, whether on oath, or consent, and to what time. 6. When trial by jury is demanded, the demand must be stated, and by whom made, the names of the jurors selected, and the time appointed for the trial. 7. The names of the jurors who appear and of those sworn, the names of all witnesses sworn, and at whose request. 8. The exceptions to the ruling of the justice on questions of law taken by either party. 9. The verdict of the jury, and when received; if the jury dis- agree and are discharged, that fact must Jbe stated. 10. The judgment of the justice, specifying the items of costs included, and the time when rendered. 11. The issuing of execution and orders to sell ; when issued, and to whom ; the renewals thereof, if any, when made ; the re- turn, and when made ; and a statement of any money paid to the justice, and by whom. 12. The giving of a transcript, to be filed in the clerk's office, and when given. 13. If appeal be taken, the undertaking and the time of entering into the same, and by which party taken. 14. The undertaking for stay of execution, and time of giving the same. 15. The satisfaction of the judgment, and the time of satisfying the same. The several particulars above specified, must be entered under the title of the action to which they relate, and at the time when they oecuiTed.* Bills of exception, however, in regard to the ruling on questions of law or evidence, need not be entered until after the judgment, •unless required by the justice or one of the parties. The justice may correct any omission or mistake in his docket- ■entries, after they are made up, according to the truth. He may (a) Bev. Stat., J 696. -XIX.] THE DOCKET AND DOCKET ENTRIES. 209 Forms of docket entries. also correct clerical errors, or an omission or mistake as to the 'Costs." Ho is liable for damages sustained from his negligent omis- sion of the above entries. Sec. II. Forms of docket entries. For various forms which have been given under their proper heads in other parts of this work, the reader is referred to the index, title Entries on Docket. The statements in the margin of the following forms are not a part of the docket entries, but are given to aid in a ready reference to the subject-matter of the entries. No. 60.] Form of docket entry when the action is on an account — an adjournment — subpena for witnesses — trial by the justice— judgment for the plaintiff. A. B., plaintiff, ,■) V. [ No. 1. C. D., defendant. ) January 8, 18—. Plaintiff filed his bill of particulars, Piaintiirs tm. being various items of book-account, amounting to January 8, 18 — . Issued summons of that date, return- able January 15, 18 — , at 10 o'clock a. m. and deliv- anmmoMsni ered to,C. C, constable. return. January 15, 18 — . 10 o'clock A. m. summons returned. [Sere copy return of constable.'] Parties appeared. On application of defendant by oath, adjourned trial to January 25, 18 — , at 10 oclock a. m. January 17, 18 — . Issued subpena for plaintiff's wit- sabpsna. nesses, to wit : E. M., S. W. January 25, 18 — . 10 o'clock A. M., parties appeared; trial had ; E. M., S. W. and A. B. sworn and examined ««!'** ^' ^"* as witnesses for the plaintiff, and L. S. sworn and ex- amined as witness for the defendant. (e) Kev. Stat., ?? 594, 595, 5114. 21© THE DOCKET AND DOCKET ENTRIES. [CHAP. Forms of docket entries. Deft's costs: It is thereupon and on said day con- Adjournment 20 sidered by me, that the said A. B jnd^meDtforg^earinsr deft 5 recover of the said C D. one hundred plaintiff. ° Swearing wit. 5 dollars debt, and three dollars and 1 witness 25 thirty-five cents, bis costs, herein — taxed as follows : Jus. : File bill par., . iteniDof coBt 55 5; summons, 25 ; subp. (2 wit.) 30; included in '.„.','>., '^ ' Judgment. swearing 3 wit., 15; ent. judgment, 40; other docket entries, 20; filing sum. and sub., 10 $1 4& Cvn,^. : Serving sum., 25 ; mileage, 20 ; serving sub., 35 ; mileage, 20 1 00 Wit.: 3 wit., 50 each 1 50 $3 95 No. 61.] Form of docket entry when action is on a note — the plaintiffs partners — summons and order of arrest — adjournment — jury demanded — defendant discharged on undertaking — bill of particulars of set-off beyond the jurisdiction of a justice — jury trial — bill of exception on trial — verdict on both bills of particulars — verdict for defendant thereon — judgment for defendant. (See post. Title, Set-ofp and Counter-claim.) Allen Bright and Caleb Dwight, Fiiantira part- j^te partners under the name and firm of " Bright & Co." plaintiffs, V. Chester Downton, defendant. - No. 2. January 8, 18 — . Bill of particulars filed by plaintifTr which is in substance as follows : Bill of particulars of plaintiff. Before G. H., J. p. Allen Bright and Caleb Dwight, '^ FiaiDtiirs bill late partners, under the name and «n»promi.Bor,firm of Bright & Co., plaintiffs, V. Chester Downton, defendant. The plaintiff claims judgment for the sum oiZ , witb interest from the day of , a. d. 18 — , on a prom- issory note made by the defendant to the plaintiffs, which is in substance as follows : XIX.] THE DOCKET AND DOCKET ENTRIES, 211 I'orms of docket entries. $150. Cincinnati, June 5, 1856. For value received, I promise to pay Bright & Co., or order, one hundred and fifty dollars, six months after date, with interest. Chester Downton. Summons is. January 8, 18 — . Issued summons of that date, return- able January 18, 18 — , at 10 o'clock A. m., and deliv- sio'i. ered same to C. C, constable. January 10, 18 — . The plainlaff, Allen Bright, made ^^^^ ^ ^^^^^ his affidavit in due form of law, which is filed, establish- ing cause for issuing order of arrest, and which is as follows: [here copy affidavit, and note its substance."^ The plaintiffs, being resident freeholders of the town- ship, executed their undertaking as required by law [or say the plaintiffs, with S. S., their surety, executed their undertaking as required by law.] January 10, 18 — . Issued an order of arrest, addressed and delivered by me to C. C.,. constable, together with a copy of said affidavit. January 11, 18 — . C. C, constable, made return of eaid order of arrest as follows: [here copy constable's RBtumofordei return.'] The constable also made return of the sum- °' "'^'^■ mens as follows : [here copy the constable's return."} The defendant being present in custody, upon his ap- plication by oath, adjourned the action for trial to ''''"'"""o''*- January 15, 18 — , at 10 o'clock a. m., and thereupon the defendant entered into an undertaking with S. S.v his surety, as required by law, and was thereupon discharged from custody, January 12, 18—. The defendant filed his bill of par- bin on"notVlna ticulars of set-off, [here give copy or the substance of »<"=<"™'- the claim of set-off, thus .■] which is in substance as fol- lows: Allen Bright and Caleb Dwight, 'i late partners, etc., plaintim, { Pending before G. V. f H., J. B, Chester Downton, defendant. } Bill of particulars of defendant : 1. The defendant claims, as a set-off in the above ac- tion, fin's (ollowJag accovat ; 14 212 THE DOCKET AND DOCKET ENTRIES. [CHAP. Forms of docket entries. Bright & Co., To Chester Down ton, Dr. June 1, 18—. To one plow $ 7 00 July 5, 18 — . " ten bushels of corn at 40 cents... 4 00 " 10, 18—. " one barrel cider 1 00 112 00 2. Also, the defendant asks a judgment in his favor for so much of a promissory note made on the day of , A. ,p. 18 — , by the plaintiffs to one William Juchter or order, and indorsed by said Juchter to the defendant, for value received, as may come within the jurisdiction of said justice in the premises, after making the proper set-off herein, and which said note is due and no part thereof paid, and is in substance as fol- lows : $600. For value received, I promise to pay William Juchter or order, six hundred dollars, one year after date. Jan- uary 8, 18 — - Beight & Co. Indorsement thereon : Pay to the order of Chester Downton, value received. June 1, 18 — - [Signed,] W. Juchter, Chester Downton. January 14, 18 — . Issued subpena for plaintiffs' wit- nesses, to wit : L. M. [etc.] January 15, 18 — , 10 o'clock A. m. The parties ap- Jnry demanded P^^""^*^' "^^^ plaintiff demanded a jury. Jury •nd Bummons selected, to wit : [here give the names of the jurv . therefor. ' ., , J i> selected^ Summons issued and delivered to C. C, constable, for said jury to appear January 16, at 10 o'clock A. M., to which time, neither party desiring Adjonrnment. an adjournment, I adjourned the trial. January 16, 18 — , 10 o'clock a. m. The parties ap- peared. The following jurors appeared : [here name those who attend,'] who, with L. M. and B. S., tales- eie"' '°''"°' men, were duly impaneled and sworn. Trial had. The plaintiffs' witnesses, A. B. and C. D., were sworn and examined ; and the defendant's witnesses, L. S., XIX.] THE DOCKET AND DOCKET ENTRIES. 213 Forms of docket entries. and C. D., were Bworn and examined. Bills of excep- ^^j^, ^^^ ^^^ tions taken and signed in behalf of [both parties, or say, "' exceptions, the plaintiff, as the case may 6e,] which are entered herein, after the entry of the judgment.(l) The jury having heard the proofs and allegations of both parties, agreed upon and returried their verdict this day, as follows : We, the lury, do find that the defendant Verdict op .1 , • ..™. ,..«.,-,.„ « plaintiffB" and owes the plaintiiis, as per plaintms Dill of defendants' biiii particulars $163 00 That the plaintiffs are indebted to the de- fendant, on the account stated in the defend- ant's bill of particulars 3 00 And that the plaintiffs are also indebted to the defendant on the promissory note, in the same bill of particulars stated 610 00 Making the amount of the defendant's claim.$613 00 And that after deducting the said debt due plaintiffs from the debt due defendant, there is a balance owing by the plaintiffs to the defendant, of four hundred and by^vordTct'""""' fifty dollars. We do therefore find a verdict in favor of the defendant for the said sum of four hundred and fifty dollars. [Signed,] T. S., Foreman. Thereupon, the defendant withheld one hundred and fifty dolhra of the said four hundred and fifty dollars SpS^M from set-off in this action, and asked judgment for the °^' residue thereof, with costs. Thereupon, and on said day, it is considered by me tnat the defendant recover of the plaintiffs the said sum for d"ef?S t on of three hundred dollars debt, and four dollars and fifty ^^^"''""'' cents, his costs, taxed as follows : (1) As to the entry pf the bills of exception on the docket, see ante, p. 192. 2i4 THE DOCKET AND DOCKET ENTEIES. [CHAP, Forms of docket entries. Justice: Adjournm't, 20; def'ta undertak., 40; sub. 3 wit., 35 ; ent. judgt., 40 ; filing 4 papers, 20 ; bill of excep. (400 wordfi), 60 ; other docket itemii of cost entries, 20 82 35 lujadgooieat. Constable: Serv. and ret. sub., 3 wit,, 46 ; mile- age, 20 65 Witnesiies: 3 wit., 50 cts. each 1 50 «4 50 Plaintiff's costs. Plaintiff's costs. Justice : Iss. summons, 25 ; affi. of pl'ff, 40 ; issw order of arr., 40 ; copy of affi. (300 words), 45 ; undertak. of pl'if 40 81 95 Subp. 4 wit, 45 ; Venire, 40 ; swear. 4 wit., 20 ; jury trial, $1 2 05 Filing 7 papers, 35 ; bill of excep. (700 words), 81.05 ; other docket entries (800 words), 81.20 2 60 86 60 Constable: Serv. and ret. sum., 25 ; mile., 20 ; flerv. and ret. order of arrest, 40 ; copy, 25 ; mile., 20; sum. jury, 81.00 ; attend trial, 81.00 83 30 Witnesses : 4 wit. (50 each), 82.00 ; 2 wit (25 each), 50 2 50 Jury fee (paid by defendant),. 3 00 813 35 3. Form of judgment of dismissiok, without pr^udice to a new action, when there was no set-off or counter-claim. After stating the cause of dismission, as thus : oansoa of di»- The plaintiff came and voluntarily dismissed hia action ; Or thus: The plaintiff failed to appear at the said time speci- fied in said summons, or within one hour thereafter ; Or thus: The plaintiff failed to appear at the said time fixed for trial, or within one hour thereafter ; XIX.] THE DOCKET AND DOCKET ENTRIES. 215 Forms of docket entries. Or thus: Trial had ; and it appearing from evidence that this action is brought in the wrong township ; Or thus : The plaintiff having failed to appear at the said return leepost, Chap. XXY., see. 2.] """■ Or thus, if an order of arrest is allowed and issued after judgment : February 27, 18—. The plaintiff filed his affidavit for order of arrest, establishing and satisfying me that [here state the ground'], and which affidavit is .as fol- lows :■ \_Copy.] i 222 THE DOCKET AND DOCKET ENTRIES. [OhAP. Altering, etc., docket and files-— Dispoeition of docket, etc. The plaintiff being a resident freeholder of the township, executed his undertaking as required by law ; [or say, the plaintiff, with S. S., his surety, executed the un- dertaking as required by law.] Thereupon, issued order of arrest, and delivered same to C. C, constable.' March 1, 18 — . Execution returned by C. C, constable. Ketnmof ' .7 ' money made. [Mere copy return.-] ^^^^^^^ ^^ March 3, ] 8—. C. 0. paid me $ . juBtice by con- March 5, 18 — . Payment to me by defendant 8 . By defendant Eeceived, March 5, 18 — , of G. H., justice, in full of above judgment [or say, on above judgment] *lol" piSnttff '"' larp. Sec. III. PONISHMENT FOE ALTERING, ETC., DOCKET OE PILES. We have already seen that the justice may correct, according to the truth, his docket entries and items of costs.' But to protect entries and files from being tampered with, for tricky or corrupt purposes, the laws provides — generally — that if any person mali- ciously alters; defaces, mutilates, destroys, abstracts, or conceals any record or part thereof, authorized to be made by any law of tho state, pertaining to any court, justice of the peace, or any state, county, township, or municipal office or officer, or any other public record so authorized, or any paper or writing duly filed in or by such court, justice of the peace,' office or officer, every such person will be deemed guilty of a misdemeanor, and upon conviction by indictment, fined not more than three hundred dollars, or impris- oned in the county jail not more than three months, or both, and is also liable to the party injured fbr damages. Sec. IV. Disposition op docket, etc., upon expiration op jus- tice's TERM OP OPPICE ; proceedings THEREON BY SUCCESSOR, ETC. It is the dyty of every justice, upon the expiration of his term of office, to deposit with his successor his official docket, (as well his own as those of his predecessors which may be in his custody-,) together with all files and papers, laws and statutes, pertaining to his office, there to be kept as public records and property."^ If a justice refuses to make the deposit, he is guilty of a misdo- (f ) See ante, p. 208. (h) Rev. Stat., §§ 597, 1529. (g) Kev. Stat., §J t095, 6803. XtX.] THE DOCKET AND DOCKET ENTRIES. 223 Execution, etc., on predecessor's judgments. meaner, and on conviction may bo fined two hundred dollars, or imprisoned six months, or both, at the discretion of the court.' If there be no successor elected and qualified, or if the office be- come vacant by death, removal from the township or otherwise, before his successor is elected and qualified, the dockets and papera in the possession of such jastice tnust be deposited with the nearest justice in the township, if any there be, and if there be none, then with the nearest in the county, there to be kept until a successor is chosen and qualified, then to be delivered over to such successor on request.) A justice receiving by succession, or on deposit, any such docket, papers, and laws, must, if requested, give a receipt therefor to the person from whom he receives the same.'' The justice with whom the docket of another may be deposited, either during a vacancy, or as the successor, is authorized, while having such docket legally in his possession, to issue execution on any judgment there entered, and unsatisfied, and not docketed in the court of common pleas, in the same manner and with the same effect as the justice^, by whom the judgment was rendered, might have done ; to take bail in appeal, or for stay of execution ; to issue certified transcripts of judgments on such docket, and proceed, in all cases, in like manner as if the same had been originally had or instituted before him.' Where two or more justices are equally entitled to be deemed the successor in ofiice of a justice, the trustees of the township must designate which justice is to be deemed the successor of the justice going out of office, or whose office has become vacant ; and must enter a certificate in the last docket of the justice going out of office, or whose office is vacant, of their determination, before the game is delivered to such successor." (i) Eev. Stat., ? 6978. ( 1) Eev. Stat., ? 599 ; 30 Ohio St. 480. (j) Eev. Stat., ? 597. (m) Eev. Stat., § 600. (k) Bev. Stat., § 598. 224 FEES AND COSTS. [CHAP. Items of justice's fees. CHAPTER XX. FEES AND OOSTS. Sec. I. Items of fees of justice. 1. For issuing writs. 2. Por entries on the docket. 3. For certificates, copies, and oaths. 4. Miscellaneous. II. Items of the fees of constables, etc. III. Fees of jueors and arbitrators. IV. Fees of witnesses. V. Other costs in an action. VI. How THE costs IN CIVIL SUITS AND PROCEEDINGS SHOULD BK MADE OUT AND STATED. VII. Who to pat costs. VIII. How costs IN CIVIL SUITS AND PROCEEDINGS MAY BE RECOV- ERED BY PARTIES AND OTHERS. IX. By whom COSTS in criminal cases PAID, AND HOW COL- LECTED ; EXTRA ALLOWANCES. X. Items of costs to be furnished; punishment, etc., fob CHARGING MORE THAN THE LAW ALLOWS. Sec. I. Items of pees op justice. 1. For issuing writs.* Summons, each person named therein 25 cts. Order of arrest, capias, attachment, mittimus, or writ of replevin, each 40 " Attachment of witness, when subpenaed to take deposi- tion* ^ 50 " Order to commit witness to jail who refuses to sign depo- sition, etc*. 50 " (a) Eev. Stat., ? 621. (b) Eev. Stat., g 5283. XX.] FEES AND COSTS. 225 Items of juBtioe's fees. Subpena for one person 25 cts. Each person in addition ; 5 " Venire for jury 40 " Execution 40 " Writ of restitution 40 " AYarrant in criminal case, for each person named 40 " A search warrant 40 " Order on jailer for prisoner or prisoners 40 " For each process required bylaw and not named above.... 40 " 2. For entries on the docket?' Bach adjournment 20 cts, Rule of reference to arbitration or copy 15 " Judgment on merits 40 " Dismission or discontinuance " 20 " Satisfaction ofjudgment 20 " [Transferring] judgment on docket 15 " For appointing guardian for minor to prosecute suit -25 " Bill of exceptions, each hundred words 15 " For entries on the docket not above provided for, each hun- dredwords 15 " 3. For certificates, copies, and oaths.^ For taking and certifying affidavit 40 cts. Copy of bill of exceptions, each hundred words 15 " For certifying same 25 " For transcripts from docket, each hundred words 15 " For certifying the same 25 " Copy of rule of reference to arbitration 15 " For swearing witnesses or arbitrators, each 5 " Taking and certifying proof of an account or claim against decedent's estate 25 " 4. Miscellaneous fees of justice.^ For filing papers necessary to be preserved by a justice, each 5 cts. For entering into bond or undertaking by either party... 40 " Foi each recognizance of bail in civil cases 40 " For transcript from docket, each hundred words 15 " (b) Eev. Stat., ? 621. 226 FEES AND COSTS. [CHAP. Items of constables' fees. For certifying same 25 cts. For appointing special constable or appraisers, each 40 " For taking recognizance of witness 40 " For each additional witness 10 '■' For taking each recognizance of bail in criminal cases.,.. 40 " For acknowledgment of deed or other instrument with a certificate thereon 40 " For sitting in cases of forcible detention 100 " For trying a jury case .....,., 100 " Taking deposition and certifying same, per 100 words 10 " Oath and certificate to procure bounty or pension 10 " For marrying and makingreturn , 200 " For every writing or record not provided for as above, per hundred words 15 « The above provisions have no reference to the fees in criminal case for bills of exception and transcripts. These are specially provided for.'' The justice is advised to set up a table of his fees and the fees of -constablefs in his oflice." Sec. II. Items of fees of constables.* Service and return of summons for each person named in , thewrit 25 cts. For service and return of copies, order of arrest, warrant, attachment, garnishee, writ of replevin, or mittimus, each, for each person named in the writ 40 " Service and return of subpena for one person 25 " For service on each additional person 10 " For service of execution on goods or body 40 " For money made on execution, for each dollar , 4 " For every day's attendance before justices of the peace, or jury trial 100 "■ For every day's attendance before justices of th« peace, on criminal trial. .100 " For every day's attendance in forcible detention, without jury 100 " For summoning a jury ■. 100 " For mileage, for the first mile... 20 " (b) See post, p. 898. (d) Eev. Stat., § 622. (c) Kev. Stat., g 621. XX,] ' FEES AND COSTS. 227 Pees of juTors and arbitptors. For each additional mile 5 cts. For assistants in criminal cases, each, per day 150 " Pop summoning and swearing appraisers in cases of re- plevin and attachment, in each case 100 " For advertising pro])erty for sale on execution^ 25 " For tailing bond or undertaking in replevin, and all other cases, each 50 " • For every day's attendance on .the grand jury 200 " For transporting and sustaining prisoners, such sum as may be allowed and certified by the magistrate, and ■ paid on his certificate For serving all other writs and notices not above named, together with mil-eage as in other cases 40 " For copies of all writs, notices, orders, or affidavits served.. 25 " For attending common pleas and district court, same fees as regular jurors' .".. ..- For extraordinary expense or trouble incurred in the removal or preservation of personal property, and for keeping live stock, taken on execution, attachment, or replevin, the justice to whom the process is returnable, may allow the constable a reasonable com- pensation, not exceeding, however, one dollar per day for assist- ants. These expenses will be taxed in the costs ; s but no allow- ance whatever can be made, unless the justice find the extraor- dinary services were necessary to properly execute the writ."" The oflEtcer in charge of a prisoner at an examining court, by its di- rection, is allowed seventy-five cents, taxed and paid as the other fees of the officers, but no withess fee." Nor are watchmen or po- licemen, in such cases of violation of ordinances in cities of the first and second class, entitled to witness fees.J When a copy served is made out by the magistrate, the officer can not charge for the copj*. A constable can recover no fees, either on mesne or final process, unless he return, upou the process, the particular items of charge.* Sec. III.' Fees oe jurors and arbitrators. The fees of jurors, attending before a justice, are fifty cents each, (e) Kev. Stat., § 1299. See § 622. (h) R'ev. Stat., § 1306. (f ) Eev. Stat., ? 553. (i ) Kev. Stat., ^ 1317. (g)'Kev. Stat, ? 1316. As to pursuit ( j) Eev. Stat., g 1315. of criminal, see post, p. 235.^ (k) Eev. Stat., g 1332. 5 228 FEES AND COSTS. [CHAP. Pees of witnesses — Other costs in the action. which are paid by the successful party at the time the verdict is rendered and taxed in the costs against his adversary.*" If the jury can not agree, the party calling the jury pays their fees, which are taxed in the costs against the losing party.'" The fees of arbitrators are the same as jurors.' Sec. IV. Pees of witnesses. For attending a trial before a justice or mayor, fifty ceuts per day, and five cents per mile, from the place of residence of such witness to the place at which his attendance is required, and re- turning therefrom, to be paid by the party at whose instance sub- ponaed, on demand.) Mileage, however, is not allowed, when the distance from the place of the residence of the witness to the place where he is called to testify, is less than one mile. For attending before an oflScer, under subpena, to have deposi- tions taken, seventy -five cents per day, and mileage ; to be paid on demand, etc., as above mentioned.J For attending in other cases, civil or criminal, before a justice : If subpenaed, fifty cents per daj^, and mileage, and to be paid, etc., as above mentioned ; if not subpenaed, but called on to testify, twenty-five cents, to be paid on demand, by the party calling him.* Sec. Y. Other costs in the action. If depositions have been taken and filed, the proper fees of the officer taking and authenticating the same and postages, if any, should be allowed and taxed. So, when in any proceeding on a transcript, and in any civil ac- tion or proceeding, it is necessary to procure a transcript of any judgment or proceeding, or certified record, as evidence in such ac- tion, or for any other proper purpose in the action or proceeding, the expense of procuring such transcript or certified record will bo taxed in the bill of costs, and recovered as in other cases." As to expenses in special cases, such as attachment, etc., tho reader is referred to the proper title of the subject. (h) Kev. Stat., § 6564. See ante, p. 185. (k) Eev. Stat., ?§ 1303, 1301. ( i) Eev. Stat., ? 6566. (m) Rev. Stat., § 1258. (j) Eev. Stat., § 1301. XX.] FEES AND COSTS. 229 How co8ts of each party taxed. Sec. VI. How the costs in civil suits and proceedings should BE MADE OUT AND STATED. The costs made by each party are separately stated, because, whatever judgment the court may render in regard to their pay- ment, each party is liablo, to the oflScers and witnesses for the costs made, or caused by him, if they can not be collected from the party who is required by the judgment to pay them," or if the party recovering judgment neglect to issue execution. The costs made by a party, are all fees which accrue to ofScers and witnesses, for acts done at the instance or on the motion of eiuch party. Thus, the plaintiff's costs are those incurred by the making service and return of all writs and orders required by him, or issued for his benefit, such as the summons, order of arrest, sub- penas for his witnesses, executions, etc. So, the costs incident to all aflidavits, depositions, and other papers, made out for or used by him in the course of the trial, are stated as his costs, as are also the costs of all entries made on the docket, growing out of those acts. In like manner, the defendant's costs are those made by him for writs, orders, etc., issued at his instance, or for his benefit, and the fees for the service, etc., of the same. All that is meant by stating the costs separately, is that the co^ts made by the plaintiff, and the costs made by the defendant, should be made out separately at tl^e foot and margin of the docket. The justice will often,-in the course of a suit, on motions for ad- journment, etc., order the plaintiff to pay costs which the defend- ant has made, or order the defendant to pay costs which the plaintiff has made. But, notwithstanding such orders, the costs of each party will be separately stated at the foot of the docket, but whether carried into the judgment, or indorsed upon the exe- cution, will depend upon the fact whether they are paid, and who is to pay them. The justice's fee for entering an adjournment (twenty cents) is costs made by the party who obtains the adjournment. The costs inserted in the judgment are only those made or caused by the party in whose favor the judgment is rendered, remaining unpaid, and which he is bound to pay if the same can not be col- lected from the other party. The costs of the party against whom the judgment is rendered, and which he is bound to pay, are made (n) Eev. Stat., §? 1318, 1321, 1322. 230 FEES AND COSTS. [CHAP. Who to pay costs. oat in the margin of the docket, and arc indorsed on the execution, and collected by the officer as if they were included in the judg- ment and execution." It is error to include them in the judgment." Sec. VII. 'Who to pat costs. Unless otherwise provided by statute, the costs of motions, ad- journments, amendments, and the like, must be taxed and paid as the justice, in his discretion, may direct.? Where it is not otherwise provided by law, costs must be allowed of course to the plaintiif, upon a judgment in his favor, in actions for the recovery of damages, or money only, or, in general, for the recovery of specific personal property ; and costs must be allowed of course to any defendant, upon a judgment in his favor, in any such actions.1 In other actions, the justice may award and tax costs, and ap- portion the same between the parties, on the same or adverse sides, as, in his discretion, he may think right and equitable."' (1) No fees are charged when a subpena is served by other person than a constable, or a person deputed for that purpose by a justice. If a witness, having been subpenaed, attend and be not exam- ined by either party, the costs of such witness must be paid by the party ordering the subpena, unless the adverse party, by confess- ing the matter, or otherwise, render unnecessary the examination of such witness." Where defendants disclaim having any title or interest in prop- erty the subject-matter of the action, they will recover their costs, unless, for special reasons, the justice decide otherwise.' If an informer under a penal statute, to whom the penalty, or any part thereof, if recovered, is given, dismiss the suit or prose- (0) Rev. Stat., ?? 1319, 1320. (s) Kev. Stat., § 6540. (p) Kev. Stat., p347. (t) Eev. Stat., g 5346. (q) Eev. Stat., I 5348. (u) 31 Ohio St. 293. (f) Eev. Stat., g 5351. ' (1) By g 5352 of the Eevised Statutes it is provided, where several actions are brought on one instrument of writing, against several parties who might have been joined as defendants in the same action, no costs shall be recovered by the plaintiff in more than one of such actions, if the parties proceeded against in the other actions were, at the commencement of the previous action, openly within the stnte. This section is not probably applicable to suits before justices of the peace. See Kev. Stat., I 684, sub. 6th. XX.] PEES AND COSTS. 231 Execution for costs in civil actions. cution, or fail in the samOj he must pay all costs accruing on such suit or prosecution, unless he be an officer whose duty it is to com- mence the same." If the defendant, any time before trial, offer, in writing, to allow judgment to be taken against him for a specified sum, the plaintiff may immediateiy have judgment therefor, with the costs then ac- crued. But if he do not accept such offer before the trial, and fail to recover in the action a sum greater than the offer, he can not recover costs that accrue after the offer, but those costs must be adjudged against him. The offer and failure to accept it can not be given in evidence to affect a recovery, otherwise than as to costs as above provided.' We have already stated the law in regard to costs when an ac- tion is dismissed ; or judgment by default is opened -j^ or the bill of particulars is amended ;^ or the place of trial is changed,y and as to the jury fee^ and suit on an item omitted.'J Special provision is also made as to costs in actions of replevin ;" in proceedings under the act relating to. apprentices;'' in proceed- ings in attachment against a garnishee;" in cases of tender, etc.;'* in proceedings to try the right of property levied upon or at- tached.^ Judgment for costs may be rendered against an executor or ad- ministrator, if the claim sued on was presented to the executoror administrator within one year after he gave bond for the discharge of his trust, and its payment was unreasonably resisted or neglected, or he refused to refer the same to arbitration.' Sec. VIII. How costs in civil suits and proceedings mat be re- covered BY PARTIES AND OTHERS 1. After judgment. — The costs are usually collected either by ex- ecution issued on the judgment, or by executions issued against the parties respectively, who made the costs. And, first, as to an execution on the judgment. The costs in- (u) Eev. Stat., § 5345. (b) See title Appebnticbs. (v) Kev. Stat., § 6581. (e) See title Attachment. (w) See ante, p. 99. (d)' See title Tbndek. ' (x) See ante, pp. 30, 33. (e) See title Trial as to pboperty (y) See ante, p. 91. Attached and levied on, (z) See ante, p. 185. and Ohap. XXV., sec. 13. (q) See ante, p. 33. (f ) Kev. Stat., § 6106. (a) See title Kbplbvin. 2^2 FEES AND COSTS. [OHAP, Bxecutions for costs in civil actions. ^ sorted in tho judgment, as has been already stated, are only those made or caused by the party who recovers the judgment, and ■which the latter has not; by any previous order of the justice, boon required to pay before judgment; the costs of the party against whom the judgment is recovered, and which the Other f)arty has not, by any previous order, been required to pay before judgment, are indorsed on the execution, and the whole is eol- 'lected as if inserted in the judgment. The party recovering judgment for his costs, and collecting the same, is liable to persons whose fees are included therein and not paid over to them ;s and if the party who has recovered the judgment neglects to sue out execution immediately, or after the stay expires, or after such execution shall have been returned without satisfaction of costs, the justice may, for his own benefit, or may, at the instance of any person entitled to fees in the bill of costs taxed against either party, order and issue, against the party indebted to the justice tir other person for such fees, whether plaint- iff or defendant, an execution to compel the party to pay his own costs — that is, the costs made or caused by him.* The execution in such case may be in the form following :' No. 58.] Form of execution after judgment to compel either party to pay his own costs. The State of Ohio, county, ss. To 0. C, Constable of Montgomery township, Franklin county, greeting : Whereas, in a certain action lately prosecuted before the under- signed, G. H., a justice of the peace, in and for said township and county, wherein A. B. was plaintiff, and C. D. was defendant, the costs* of the said plaintiff [or say defendant] were taxed at dollars : Tou are therefore commanded, that of the goods and chattels of the said plaintiff, you cause to be made the costs aforesaid, with interest thereon from the day of , A. d. 18 — \the date of the judgment^ until paid, and costs that may accrue ; and of this W}'it make legal service and due return. Given under my hand, this day of , a. d, 18 — . G. H. (g) 23 Ohio St. 403. (i) Rev. Stat., § 1821. The form of (h) Eev. Stat., J§ 1821, 6662. the writ is substantially pre- scribed by the statut3. XX.] PEES AND- COSTS. 233 Who to pay costs in criminal cases. 2. Bow costs recovered ■ before final judgment in the action. — The costs adjudged against either party, on adjournments, amendments, etc., may be collected at any tim.e after the judgment or order of the justice awarding such costs against either party, by an execution.- ITbe form of the execution given above, may be followed with the I following alterations, to wit : After the asterisk*, instead of tho words "of the said plaintiff," insert these words: "adjudged against the said plaintiff;" [or say defendant, as the case may be,'] on an adjournment of said action ; {or say, on an amendment of his bill of particulars, as the case may be, stating on what proceeding the costs were ordered paid.'] "When a party calls on an officer to pay his fees, a bill of particu- lars, containing the items signed by the officer, and a receipt or discharge, must be made oat if required ; otherwise the officer is not entitled to payment."^ Sec. IX. By whom costs in criminal cases paid, and how col- lected ; EXTRA allowances. In general, where there is no provision by statute requiring the county to pay costs, they can not be collected from the county.' As to the payment of the fees by the county of marshals, con- stables, and witnesses, and of magistrates, such as justices of the peace, police judges, and mayors, in criminal cases: 1. If a conviction is had for a felony, the fees of said officers and witnesses are all paid out of the county treasury. 2. Fees and costs in no other case whatever than the above can be paid out of the county treasury to any of the above named officers, but allowances may be made them for services, and paid out of the county treasury, in the following cases : 3. The county commissioners, at a regular session, may make an allowance to said officers in lieu of fees, in causes of felony, wherein the state fails, and in misdemeanors wherein the defendant proves insolvent; but the aggregate amount of such allowances to any such officer, in any year, shall not exceed the fees legally taxed to him in such causes, nor shall the aggregate amount allowed to an officer in any year exceed one hundred dollars. Further, in mak- ing such allowance, when claimed in a case where such officer was (j) Eev. Stat., § 1323. of reclaiming felons, fugitives (k) Kev. Stat., g 1333. from this state, see Eev. Stat, (1) 12 Ohio St. 429. As to expenses 2 920. 234 FEES AND COSTS. [CHAP. Who to pay costs in criminal cases. authorized to take security for costs, it must be made to appear that he exercised reasonable care in taliing such security; and unless the commissioners are satisfied by the certificate of the magistrate before whom the causes were heard, or other satis'factory proof that the prosecuting witness was indigent and entirely unable to pro- cure security or to pay the costs, and that the oflScer exercised due care in taking such security, if security was taken, the officer's services in such causes can not be allowed. Besides, where such magistrate takes security for costs that is insufficient at the time of taking it, no allowance for his services in the. cause can be al- lowed." All fees due the above named officers in eases of misdemeanor must be paid into the county treasury when collected, unless it be ascertained that the amount of such fees was not allowed for as above mentioned." In all cases in which a justice has power to fine a person for the commission of an offense, he must render judgment for such fine, and tax such costs for himself, the constable, and witnesses, as are allowed by law." In all eases in which the said officers have power to fine any of- fender, upon the judgment rendered they may issue execution, with costs taxed against the offender, to be levied on his personal property, and for want thereof, upon the body of such offender. On tbis execution the officer may pursue the offender and arrest him in any county in the state, and convey and commit him to the jail of the county whence the execution issued. If the offender has left, or resides or has property in another county, an execution may be issued to the sheriff of such other county, who is required to arrest the offender, and convey him to the county from whence the execu- tion issued. The offender must remain in jail until the fine and costs are paid, or secured to be paid, or ho is otherwise discharged according to law.'' As to fees and expenses of pursuing a person accused of a felony, the statute provides that besides the compensation allowed to of- ficers,. as hereinbefore mentioned, the county commissioners may iillow and pay any necessary expense incurred by an officer in the pursuit of a person charged with a felony who has fled the country." If for removal to another county, the auditor allows for it.= (n1 Kev. Stat., ?? 1314, 1312. (r) Tlsv. Stat., ?§ 7328, 7329. (o) Kev. Stat., g 1313. (s) Kev. Stat., § 1310, 7131. XX.] PEES AND COBTS. 235 Items of cost to be furnished. And, as to sucli an allowance, there imist be, prior to the pursuit, a legal charge or complaint made to a justice or other proper of- ficer or court, and not a mere intention to commence a prosecution in case the offender be apprehended,' and there must also be proof satisfactory to the commissioners of the county that the services have been rendered, and that the charges are reasonable. The commissioners may offer a reward for the detection or ap- prehension of any person charged or convicted of a felony, and pay .the same on conviction of such person, together with all other necessary expenses not otherwise provided by law ; and may offer rewards for the detection or apprehension of any person charged with or engaged in horse-stealing, or their abettors, and upon con- viction of such person pay such reward or other compensation, but the owner of a stolen horse will not be entitled to such reward." Where a recognizance, given in a case of felony, is collected, the county commissioners may, out of the amount paid into the county treasury, pay any or all the expenses incurred by any person in procuring the arrest of the accused, in addition to the fees allowed by law.^ Sec. X. Items of cost to be furnished; punishment, etc., for CHARGING MORE THAN IS ALLOWED BY LAW. Where an officer is required by law to perform a duty, or do an act, and no fees are provided by law as a compensation therefor, any charge made by him for performing the duty, or doing the act, is unauthorized, and not allowable by law.'' • The statute provides== that if any officer in this state authorized by law to charge or receive fees or costs for his official duties, shall knowingly charge, ask, demand, or receive any more or greater fees or costs than are allowable by law for such official duties, such officer so offending shall be deemed guilty of a misdemeanor, and, upon conviction thereof, be fined in any sum not exceeding two hun- dred dollars, or imprisoned in the jail of the county not more than twenty days, or both. On conviction, he forfeits his office, and for seven years thereafter is ineligible to any other.(l) (t) Wright, 176. (w) 25 Ohio St. 13 ; 7 Id. 237. (u) Kev. Stat., ?? 918, 919. (xj Eev. Stat., § 6909. (v) Kev. Stat, § 915. (1) Eev. Stat., § 6909. Justices may find it for their interest to consult the statute instead of adopting Spalding's items of fees, as many of them are ficti- 236 FEES AND COSTS. [CHAP. Punishment, etc., for charging more than is allowed by law. In all cases, when demanded by any person liable to pay fees or costs, to any officer of this state, authorized by law to charge or receive the same, it is the duty of such officer, without charge, to make out, sign, and deliver to such person, an itemized bill of sudi foes and costs, and no person is compelled or required to pay such fees or costs, after such demand, until the itemized bill is so made and tendered, with a receipt for fees and costs paid.^ The items of fees and costs rendered should be as specifically stated as in the law authorizing the Charge, so that the person to whom the bill of costs is delivered can compare each item of ser- vice with the compensation therefor prescribed by law, and ascer- tain its correctness. It is proper, in this connection, to refer the reader to the stat- utes,^ making it highly penal to present for payment, or to certify as correct to any state officer or board of officers, or to the commis- sioners or other officer of any county, or to any municipal corpora- tion, or to any township officer, any claim, account, pay-roll, or other evidence of indebtedness, false and fraudulent in whole or in part, knowing the same to be so, for the purpose of procuring its allowance, or an order for its payment from public moneys, or to receive payment of the same, knowing the same to be false or fraudulent. (y) Eev. Stat., g 1333. (z) Eev. Stat., ? 7075. tious and illegal, and some moi-e and some less than allowed by law. As an officer is presumed to know what the law specifically designates ashis fees, it is very dangerous to heedlessly or ignorantly charge too much, or charge a fee for services which the statute does not by express terms allow. XXI.] APPEAL. 237 In wliat cases appeal is allowed, and when not, etc. CHAPTER XXI. APPEAL. I. In what cases an appeal is allowed, and when not.; and WHO TO PAY COSTS ON APPEAL. 11. "Within what time AN*tiNDEETAKiNa to be entered into, AND its requisites AND FORM. III. How appeal perfected, etc. -V. Proceedings if the appeal is not entered, or is quashbp, or is dismissed. v. .Action on the appeal undertaking. Sec. I. In what cases an appeal is allowed, and when not ; AND WHO TO PAT COSTS ON APPEAL. (1) § 6562. If either the plaintiff or the defendant, in their bill of particulars, claim more than twenty dollars, the cause may be ap- pealed to the court of common pleas ; but if neither parly demand a sum greater than twenty dollars and the ease is teied by a jury, there shall be no appeal. § 6583. In all cases not otherwise specially provided for by law, either party may appeal from the final judgment of any jus- tice to the court of common pleas of the county where the judg- ment was rendered. § 6596. Appeals in the following cases shall not be allowed : 1. On judgments rendered on confession. 2. In jury trials where neither party claims in their bill of par- ticulars a sum exceeding twenty dollars. 3. In an action for the forcible entry and detention, or forcible detention of real property. (1) An appeal from the judgment of the mayor of a city or village whose jurisdiction extends to parts of two or more counties must be taken to the county in which the defendant resides. Eev. Stat.. 1 17-52. 238 APPEAL. [chap. "Within what time an undertaking to be entered into, etc. 4. In trials for the right of property under the statutes, either levied upon by execution or attached. In replevin, the right to appeal does not depend on the amount of damages claimed in the bill of particulars."" Subject to the above provisions appeals seem to be allowable as well in ordinary civil actions as actions of debt, to recover fines or penalties imposed by statute, prosecuted by officers, informers, and others, in their own names, or in the name of the state, or a municipal or other corporation, for the benefit of an informer.' T3ut criminal prosecutions instituted in the name of the state, al- though punished by a fine, can Mot be appealed, unless specifi- cally allowed by statute.' An appeal does not lie to a judgment of dismissal without preju- dice.'' Giving stay bail in no way affects the right of appeal.' As to costs on appeal the statute provides : g 6563. If, on appeal by the plaintiff from a judgment in his favor, he shall not recover a larger sum than twenty dollars, exclusive of interest since the rendition of the judgment before the justice, he shall be adjudged to pay all costs in the court of common pleas, including a fee of five dollars to the de- fendant's attorney; and if the defendant shall demand a set-off or counter- claim, or both, greater than twenty dollars, and be appeal from a judgment rendered in his favor, and do not recover twenty dollars, he shall, in like manner, pay all costs in the appellate court, including a like fee to the plaint- iff's attorney. g 6591. If any person appealing from a judgment rendered in his favor shall not recover a greater sum than the amount for which judgment was ren- dered, besides costs and the interest accruing thereon, every such appellant shall pay the costs of such appeal. Sec. III. Within what time an undertaking to be entered INTO, AND ITS REQUISITES AND PORM.(l) The party appealing must, within teg d^s from the rendition of the judgment, enter into an undertaking to the adverse party, with at least one good and sufficient snretj', to be approved of by such justice, in a sum not less than fifty dollars in any case, nor (d) 12 Ohio St. 549. (h) 81 Ohio St. 463. (e) 5 Ohio, 442, 269. ( i) 31 Ohio St. 293 ; "Wright, 814. (f ) 2 Ohio St. 296; 8 Id. 205. (1) As to an administrator, trustee, etc., appealing without undertaking, see post, p. 386. XXI.] APPEAL. 239 Within what time aa undertaking to be entered into, etc. less than double tbe amouat of the judgment and co&ts of tke ap- pellee."" The appeal undertaking must be conditioned: 1. That the appel- lanjt will prosecute his appeal to effect, and without unnecessary de- lay ; 2. That if judgment be adjudged against him on the appeal, he will satisfy the judgment and costs. The stipulation in the un- . dertal^ing " to prosecute the appeal to effect and without unneces- sary delay," is an indispensable part of the undertaking." The undertaking need not be signed by the appellant, but must be entered on the docket, and the time when taken. p A. B.-^ C. B.^ No. 59.] Form of appeal undertaking. Judgment before G. H., j. p. Whereas, on the day of , A. D. 18 — , the said A. B. ob- tained judgment against the said C. D., on the docket of G. H., J. p., for dollars cents, and costs, taxed, [etc.,] and the said C. D. intends to apj)eal therefrom, to the court of common pleas' of county. Now, therefore, I, S. S., of , hereby promise and undertake, in the sum and to the amount of [here insert at least ffty, and not less than double the amount of the judgment and costs'i of the appellee'] dollars, that the said appellant [or say, appellants], if judgment be adjudged against [him, or say, them or either of them], 9 on the appeal, will satisfy such judgment and costs; and also that said appellant [or say, appellants] will prosecute [his, or say, their] appeal to effect, and without unnecessary delay. [Signed,] S. S. Taken, executed, and acknowledged before me, and surety ap- proved, this day of , a. d. 18 — . G. H., j. p. If two sureties are named in the undertaking and one signs, he only will be prima facie liable."^ As to the computation of the ten days, see post, pp. 823, 824. If there is no date to the judgment, and no continuance entered, the day of trial will be held to be the date of the judgment." (m) See 5 Ohio St, 276. As to quali- (p) Bev. Stat., § 6584, 594. fications of surety, and bo,w as- (q) 27 Ohio St. 498 ; 31 Id. 475. certained, see ante, p. 104 ■ Rev. (r) 31 Ohio St. 33. Stat., g§ 4952, 49ui3. (s) 17 Ohio St. 30. (.0) 13 Ohio St. 485, 240 APPEAL. [chap. How appeal perfected, etc. When the term of office of a justice expires between the date of the judgment and the time limited for appeal, such justice may- take the undertaking for appeal at any time before he has deliv- ered his docket to his successor, and give the appealing party a transcript. After the delivery of the docket, the undertaking must be given to his successor, and it is his duty to give the transcript, and do and perform all things required of his predecessor .^ Sec. IV. How appeal peefected, etc. The justice must make out a certified transcript of his proceed- ings, including a transcript of the undertaking taken for euch ap- peal, and, on demand, must deliver the same to the appellant, or his agent, who delivers tlie same to the clerk of the court to which such appeal may be taken, on or before the thirtieth day from the rendition of the judgment appealed from ; and the jnstice must also deliver or transmit the bill or bills of particulars, the deposi- tions, and all other original papers, if any, used on the trial before him, to such clerk, on or before the thirtieth day from the judg- ment; and all further proceedings before the justice of the peace, in that case, ceases, and is stayed, from the time of entering into the undertaking.(l) (i) Kev. Stat., g 6597. (1) Kev. Stat., J 6585. The statute further provides, as to the appeal and the proceedings in the court of common pleas, as follows: § 6586. The clerk, on receiving such transcript and other papers, as afore- said, shall file the same, and docket the appeal. § 6587. The plaintiff in the court below shall be plaintiff in the court of common pleas; and the parties shall proceed, in all respects, in tiie same man- ner as though the action had been originally instituted in the said court. As to rule day for pleading in appealed cases, see Kev. Stat., g 6598. I 6588. If the appellant shall fail to deliver the transcript and other papers, if any, to the clerk, and have his appeal docketed jis aforesaid, on or be- fore the thirtieth day from the rendition of the judgment appealed from, the appellee may, at the term of said court, next after the expiration of said thirty days, file a transcript of the proceedings and judgment of such justice, and the said cause shall, on motion of the appellee, be docketed ; and the court is au- thorized and required, on his application, either to enter up a judgment in his favor, similar to that entered by the justice of the peace, and for all the costs that have accrued in the court, and award execution thereon ; or such court may, with the consent of the appellee, dismiss the appeal at the cost of the ap- pellant, and remand the cause to the justice of the peace, to be thereafter pro- ceeded in as if no appeal had been taken. XXI.] APPEAL. 241 How appeal perfected, etc. The justice should not hand over to the appellant the original appeal undertaking; but if he does, and the appellant has it filed with the clerk of the court, this is a substantial, though irregular If the defendant appeals, and has the transcript duly filed and docketed, and Ihe plaintiff fails to file a petition, or to prosecute the action to final judgment, the defendant may file his answer, setting up whatever claims he has against tho plaintiff; and if the defendant recovers a judgment against the plaintiff, all tho costs in court, and before the justice, will be adjudged against the plaint- iff, or the defendant in such case may, on motion to the court, suffer judgment to be entered against him for the amount of the judgment below, in which case all the costs in court and before the justice, will be adjudged against the defendant. Rev. Stat., § 6592. § 6589. If the plaintiff, in the action before the justice, shall appeal from any judgment rendered against such plaintiff, and after having filed his tran- script, and caused such appeal to be docketed according to the provisions of this act, shall fail to file a petition, or otherwise neglect to prosecute the same to final judgment, so that such plaintiff shall become nonsuit, it shall be the duty of the court to render judgment against such appellant for the amount of the judgment rendered against him by the justice of the peace, together with interest accrued thereon, and for costs of suit, and to award execution there- for, as in other cases. § 659-5 In proceedings on appeal, when the surety in the undertaking shall be insufilcient, or such undertaking may he insufficient in form or amount, it shall be lawful for the court, on motion, to order a change or renewal of such undertaking, and direct that the same be certified to the justice from whose judgment the appeal was taken, or that.it be recorded in said court. On appeal, the plaintiff can not, unless by the consent of the defendant, amend so as to increase his demand beyond the jurisdiction of a justice. 21 Ohio St. 659. Where, however, on appeal from the judgment of a justice, the parties in the court of common pleas make up an issue upon an amount beyond the jurisdic- tion of a justice, it will be presumed that the parties, by mutual consent, in- voked the original jurisdiction of the court of common pleas, and all the inci- dents belonging to a cause of original jurisdiction, and as to costs, will follow the case as if originally brought in the court of common pleas. 19 Ohio St. 427 ; 15 Id. 483 ; 9 Id. 495. Where parties, on an appeal from a justice, proceed in the court of common pleas to trial before a jury upon the transcript without pleadings, and no ob- jection being taken, there is a verdict and judgment, the judgment will not ha reversed on error for such irregularity. 11 Ohio St. 692. Where process or service is defective, and judgment by default is taken, if tho defendant appears in court to give notice of appeal, and has it entered, he can not afterward, on error, be allowed to deny his appearance to the action, 13 Ohio St. 565 ; 11 Id. 646 ; 7 Id. 233. 242 APPEAL. [chap. Proceedings if appeal not entered — ^Action on- the appeal undertaking. compliance with the statute, which requires a certified transcript of the appeal undertaking to be filed.™ If an execution is out on the judgment, at the time the appeal undertaking is entered into, it must be recalled by giving the party appealing an order, directed to the constable, requesting him to return the execution." The justice, after the appeal undertaking is filed, 'issues no further process, unless he receives a certificate from the clerk of the Court. Sec. V. Proceedings if the appeal is not entered, or is QUASHED, OK IS DISMISSED. If the appeal is quashed by the court of common pleas, by rea- son of irregularity in taking or consummating the same, the cause for quashing will be stated in the order of the court, and a transcript of such order must be lodged with such justice, who will thereupon proceed, to issue execution, in the same manner as if no appeal had been taken." So, if both parties fail to enter the appeal (the appellant on or before the thirtieth day, and the appellee during the then next term, as stated in the preceding note), the justice, on receiving a certificate from the clerk of the court, stating that the appeal was not entered, or being entered by the appellee, was, on his applica- tion, dismissed,Pwill thereupon issue execution upon the judgment, in the same manner as if such appeal had never been taken. The appeal will not be quashed, or dismissed, on account of the justice neglecting to transmit the bill of particulars, depositions, or original papers to the clerk. The court will permit the appel- lant to supply the omission.* Sec. VI. Action on the appeal undertaking. If the appeal is dismissed by the court of common pleas, or judg- ment is entered therein against the appellant, the surety in the appeal undertaking is liable to the appellee for the whole amount of the debt, costs, and damages recovered against the appeliaui. (m) 13 Ohio St. 485. (p) Eev. Stat., g 6590. See preceding (n) Bev. Stat., ? 6653. note. (o) Eev. Stat., § 6594. (q) 15 Ohio, 558. (r) Rev. Stat., g 6593. XXI.} APPBAI,. 243 Aetion on the appeal undertaking. Formerly, the suit on an appeal bond was hy scire facias ; but now an action is brought upon it as upon other contracts. It is safest, before bringing an action on the appeal undertaking, to sue out an execution against the appellant on the judgment, and )iave a proper return made, that there are no gpods, etc. 16 244 PETITION IN ERROR. [OHAK Froceedings and practice, etc. CHAPTER XXII. PETITIOIf IN EREOK. Formerly, questions of law decided by jiistices of the peace were brought before the court of common pleas and revised by certiorari. But now, certiorari in civil cases, to reverse judgments, is abol- ished." The court, however, have the same power to compel complete and perfect transcripts of judgments sought to be reversed, to be- furnished, as they heretofore had under writs of certiorari.* The proceeding to reverse, vacate, or modify a judgment or final order of a justice, is by petition, filed in the proper court, setting forth the errors complained of; and upon which a summons is- issued or publication made as in other actions.* It does not coma within the scope or object of this work, to give the practice or pro- ceedings of the court of common pleas or supreme court. The exceptions must be entered on the docket before petition filed." The proceeding must be commenced within two years after the rendition of the judgment, or making of the final order complained of; or, in case the person entitled to such proceeding be an infant, a married woman, a person of unsound mind, or imprisoned, within two years as aforesaid, exclusive of the time of such disability." No proceeding to reverse, vacate, or modify any judgjnent ren- dered, or final order made by a justice of the peace, will operate as a stay of execution, unless the clerk of the court of common pleas take a written undertaking to the defendant, executed on the part of the p jaintiff in error , by one or more suflScient sureties, to the effect that the plaintiif will pay all the costs which have ac- crued, or may accrue, on such proceedings in error, together with (a) Rev. Stat., i 6731. (c) Eev. Stat., § 6723. (b) Rev. Stat., §§ 6708, 6718. (d) 29 Ohio St. 600. XXII.] PETITION IN ERROR. 245-' Fioceedings and practice, etc, the amount of any judgment that may be rendered against such plaiDlifiLin-fiimQSf either on the further trial of the case, after the judgment of the court below shall have been set aside, or reversed, or upon and after the affirmance thereof in the court of common pleas.* Giving bail for stay does not release errors.'' When, however, the judgment of the justice directs the delivery of the possession of real property, the amount of the undertaking ■is filled by the court of common pleas, or a judge thereof, or, in bis absence, by the probate judge, and stipulates that, during the- possession of such property by the plaintiff in error, he will not commit nor suffer to be committed any waste thereon ; and that, if the judgment is affirmed, he will pay the value of the use and oc- cupation from the date of the undertaking, until the delivery of the- property, pursuant to the judgment ^nd costs.'' ^ These proceedings in error can not be prosecuted if the judgment has been paid or satisfied before commencement.'' If the judgment of a justice be affirmed, the court render judg- ment against the plaintiff in error for the costs of suit, and award' execution therefor ; and the court thereupon orders its clerk to cer- tify its decision in the premises to the justice, that the judgpaent affirmed may be enforced, as if such proceedings in error had not been taken ; or such court may award execution to carry into effect the judgment of such justice, in the same manner as if such judg- ment had been rendered in the court of common pleas.° When the judgment of such justice is reversed, or set aside, the court render judgment of reversal, and for the costs that have ac- crued up to that time, in favor of the plaintiff in error, and award execution therefor; and the cause is retained by the court for trial and final judgment, as in cases of appeal, if the justice had juris- diction of the case. If the justice had no jurisdiction of the plaintiff in error, or the subject-matter of the action, the cause will not be retained by the court, but the judgment will be reversed with costs.' The superior courts will disregard any error or defect in the bills of particulars or proceeding, which do not affect the substantial rights of the adverse party .s Indeed, superior courts have never required technicality at the. (d) Kev. Stat., § 6724. (g) Rev. Stat., § 5303. (e) Kev. Stat., ? 6732. (h) 31 Ohio St. 293. (f ) Rev. Stat., ? 6733 ; 22 Ohio St. 371. 246 PETITION IN ERBOE. [CHAP. Proceedings and practice, etc. hands of justices of the peace; and, were they to attempt it, the thing would be found impracticable. Those ofiScers are not, in general, professional men, who are familiar with legal technicalities and subtle niceties ; and the public welfare does not require that they should attempt to live up to nice rules, which, in their courts, would subserve no great good, and in which they are not supposed to be well versed^ But the justice can not disregard the law of the case or give judgment without evidence. Thus, on trial by the justice himself, if no evidence is offered on a point necessary to be established by proof, in order to obtain judgment (as where suit-is brought on an account barred by the statute of limitations, and the plaintiff credits a payment purporting to have been made after the account was barred, but gives no proof that such credits were in fact intended by the parties as a payment on the account) in such case, the judg- ment will be reversed if the error is shown by bill of exceptions -.taken at the trial .' (h) 15 Ohio, 558 ; 3 Ohio St. 231 j 13 (i) 81 Ohio St. 424. Id. 219, 416; 6 Id. 288. Xiin.j| AR&EST AFTER JUDGMENT. 247' Execution for arrest when defendant is in custody before judgment. CHAPTER XXIII. AHEEST AFTER JUDGMENT. Seo. I. Execution with clause fob aehest, when the defendant IS IN custody before judgment. II. Proceedings to obtain an order of arrest after judg- ment, WITH FORMS. m. The service and return of an order of arrest issued AFTER JUDGMENT. rv. Escape and recapture. V. Forms of returns. Sec. I. Execution with clause for arrest when the defendant IS IN custody before judgment. If an order of arrest was issued before judgment and the de- fendant discharged upon depositing in the hands of the justice the amount of money mentioned in the order of arrest, of course the money so deposited is applied hy the justice to the satisfaction of the judgment ; and if it be not sufficient to satisfy the judgment and costs, the balance remaining unpaid may be collected in the same manner as balances due on other judgments. In such case no order of arrest issues after judgment, unless allowed upon a new application and affidavit. Under the justices act, a defendant arrested before judgment could not be discharged without a deposit of money, or entering into an undertaking with sureties to pay the judgment. But now, the defendant maybe discharged before judgment, by entering into an undertaking with sureties that he will render himself amenable to the process of the court on the judgment." After issuing an execution for goods and body, and a return of no goods, and the defendant not found, the plaintiff may proceed on the undertaking against the surety. If an order of arrest was issued before judgment, and the de^ (a) Kev. Stat., § 6488. :248 AEEBST AFTER JUDGMENT. [CHAR Proceedings to obtain order — Porm of affidavit. fendant not discharged from custody by making a deposit or giving an undertaking with surety as above mentioned, nor by an ad- journment beyond the period of forty -eight hours without his ■•consent, as hereinbefore mentioned,* then, upon the rendition of the judgment and while the defendant is in custody under the ordei of arrest, an execution with a clause for the arrest of the defendant should be issued by the justice. The form of this execution la given in a subsequent chapter. , Sec. II. Proceedings to obtain an ordeh op abeest aetee judg- ment, WITH POEMS. The mode of obtaining an order of arrest before judgment and the proceedings thereon have been stated in the preceding part rof this work f and, in the preceding section of this chapte^ we have pointed out the mode of proceeding after judgment when an order of arrest has been issued before judgment. The subject now before us is the allowance, requisites, form, and service of an order of arrest after judgment, in cases in which no .jorder of arrest was issued or executed before judgment. As the causes for arrest after judgment are precisely the same as those required to be stated in an aflSdavit before judgment, the reader is referred to the law relating to causes for arrest before judgment, which are stated in the preceding part of this work."* The affidavit, however, made after a judgment is rendered, need only state the amount remaining due on the judgment, instead of , stating the original ground of the action. All that is necessary, "therefore, to do here, is to give the form of that part of the affi- tdavit which states the judgment — the other part of the affidavit and its requisites being the same as for affidavits to procure an ar- ,rest before judgment. ^orm of the commencement, and statement of the cause of action in an affidavit made for an order of arrest after judgment, when no order of arrest issued, etc., before the judgment. A. B. ) V. \ Judgment before G. H., j. p. l>een determined by onr courts. See Cro. Jac. 419; 1 Stra. 432; I>yer, 24, a. XXIV..] OP THE STAY OF EXECUTION. 257 In what cases not allowed. CHAPTER XXIV. OF THE STAY OF EXECUTION. Seo. I. In what cases no stay of execution is allowed. 11. Foe what periods a stay may be obtained. III. When stay to be obtained, and form of undertakin© therefor. IV. When justice must issue execution. V. Issuing of execution, notwithstanding stay, and forms IN SUCH case. VI. Proceedings against surety foe stay, and his rights. VII. Eights and remedies, as between surety for stay and a. JUDGMENT DEBTOR WHO IS A SURETY. Sec. 1. In what cases no stay of execution is allowed. ' JNo stay of execution on judgments rendered in the following- cases can be allowed :* 1. On judgments rendered against justices of the peace for re- fusing to pay over money by them collected or received in their official capacity. 2. On judgments against justices of the peace for not reporting^ annually to the auditor all fines, as required by law. 3. On any judgment rendered against a constable for failing to make return, making a false return, or refusing to pay over money collected in his official capacity. 4. On judgments against bail for the stay of execution. 5. Where judgment is rendered in favor of bail who have been compelled by judgment to pay money on account of their prin- cipal. 6. On judgments obtained by constables on undertakings exe- (a) Bev. Stat., i 6652. 258 ON THE STAT OP EXECUTION. [OHAR In what cases allowed, and for what period — When stay to be taken. cnted to them for the delivery of property, or undertakings exe- cuted to an oflBcer in replevin of property levied on by execution. 7. On judgnientB rendered in favor of any person for wages due for manual labor by him performed. Sec. II. For what period a stay mat be obtained. In all cases except those above mentioned a stay of execution may be obtained ; and the stay will be graduated as follows i* First. On any judgment iov five dollars and under, the stay shall be for sixty days. Second. On any judgment exceeding five dollars and under twenty dollars, the stay shall be for ninety days. Third. On any judgment for twenty dollars and under fifty dol- lars, the stay shall be for one hundred and fifty days. Fourth. On any judgment for fifty dollars or upward, the stay shall be for two hundred and forty days. Fifth. "Where judgment is obtained against a surety, and he takes a stay thereon, and obtains a judgment against the principal, stay of execution must be allowed on the judgment against the principal, only so long that the stay will expire one month before that allowed to the surety on the judgment against him. Sec. III. When stat to be obtained, and form op undertaking therefor. Any person against whom judgment may be rendered under the provisions of the justices act relating to civil cases, except as hero* inbefore mentioned, may have stay of execution for the several periods above mentioned, by entering into an undertaking to the adverse party, within ten days after the rendition of the judgment, with good and sufficient surety, resident of the county, as the jus- tice shall approve, conditioned for the payment of the amount of such judgment, interest, and costs, and costs that may accrna; which undertaking must be entered on the docket of the justice, and be signed by the surety." An undertaking for stay of execution, taken after the period fixed for taking the same, when given for a sufficient consideration (a9 the release of a levy), is a good contract, and may be enforced by an action but not under the statute ; and the execution of the un- (b) Kev. Stat., § 6651. (o) Rev. Stat., ? 6650. XXIV.] OF THE STAT OF EXECFTION. 259 Undertaking for stay— KeoaM of execution — Issuing before stay expires. dertaking upon the docket of a }Hsfcie& is a siiifficient delivery of the contract, being all the deliverj'^ intended by th© parties.* The undertaking may bo in the t&vm folloTving : No. 65.] Form of vmdevtaking. for the stay of execution.. February 28, 18 — . The defendant came, and by S. S., his surety, resident of the county, approved by me as good and sufficient surety, caused an undertaking fbr the stay of execution to. be en- tered herein, which follows. In pursuance of the statute in such case made and provided, I, S. S. [^or say we, S. S. and I/. S:, if there be tim,'} as surety [or swe- ties] for the stay of execution on the above Judgment of A. B. against G. D., do hereby promise and undertake to pay the amount of said judgment, interest and costs, and the costs that may accrue. [Signed,] Taken by and signed and acknowledged! before me, and surety approved, this 11th day of January, a. d. 18^ — . €r. H., j. p. Sec. IV. "When justice must issue execution'. If no undertaking for stay of executipn is entered into within ten days after the rendition of the judgment, and there be no ap- peal or other proceeding staying execution, the justice is required ' by law, without demand, unless otherwise directed by the judgment creditor, to issue an execution aad proceed to collect the jndgment.^ If the justice refuses or neglects, to issue the execution after the expiration of the ten days, he is guilty of a breach of his official bond.' If execution has been issued by the rec^uest of the judgment creditor before the ten days expired, and afterward and within the ten days, the judgment debtor causes an undertaking to be entered into, the justice will recall the execution (making an entry of recall on his docket), and give the judgment debtor an order of recall addressed to the constable.? Sec. V. Issuing of execution notwithstanding the stay, and proceedings and foems in such case. Where any person who has become surety for stay of execution, shall remove, before the expiration of such stay, into any other oounty or state, the justice must, on demand and proof thereof, (d) 15 Ohio St. 544. (f ) See ante, p. 9. (e) Rev. Stat., g 6649. (g) Bev. Stat., § 6653. n- 260 OF THE STAT OP EXECUTION. [CHAP. Issuing execution notwithstanding stay. issue execution against the goods and chattels of the defendant, or other party against whom the original judgment was rendered, to be proceeded with as in other cases." The fact of the removal of the surety for the stay into another county, should be stated on the docket as the reason for issuing the execution. When any surety for the stay of executioh becomes apprehensive that, by delaying the execution until the expiration of the full time of such stay, he may be compelled to pay the judgment, such surety may make and file an affidavit of that fact, before the justice on whose docket the judgment is entered ; whereupon such justice must issue execution against the judgment debtor, which will be proceeded in as in other cases, But the surety will not thereby be discharged from liability, but may be proceeded against after the expiration of the term of stay, in the same manner as if execution had not issued as aforesaid.' The affidavit in such case may be as follows : No. 66.] Form of affidavit of surety to obtain execution. The State of Ohio, county, ss. .^ S. S. makes solemn oath, that he is surety for the stay of execu- tion upon a certain judgment in favor of A. B. against C. D., on the docket of G. H., justice of the peace of said county ; and that he is apprehensive that, by delaying the execution until the expi- ration of the full time of such stay, he maybe compelled to pay said judgment. [Signed,] S. S. Sworn to and subscribed before me, this day of , a. d. 18—. G. H., J. p. If the judgment debtor, within ten days after the levy made iiSder the execution issued at the instance of the surety for stay, shall enter into a further undertaking for the stay of execution, during so much of the first stay as remains then unexpired, and shall pay the costs of the execution issued against him as aforesaid, the justice must take such further undertaking, and recall the exe- cution ; and the person who last became surety, will first be pro- ceeded against, until it shall appear, by the return of the (sonstable, (h) Eev. Stat., § 6656. (i) Kev. Stat., § 6657. XXIV.] OP THE STAT OP EXECUTION. 261 Additional undertaking for stay — Form of docket entries. that he has no goods and chattels whereon to levy, before pro- ceedings can be institated on the undertaking first given.J At anytime before the stay expires, if the justice taking the surety, or his successor in office, becomes satisfied that the surety is insuffi- cient, it is his duty to cause written notice thereof to be given to the defendant :r if, he be absent, to cause the same to be left at his resi- dence, requiring him to give additional surety. If such defendant shall not give such additional surety, on or by the third day after the giving of such notice, such fact must be entered on the docket, and the justice immediately issues execution against the defendant for the collection of the judgment. If, within ten days after the issuing of such execution, surety to the satisfaction of the justice be given, the execution must be recalled and stayed until the expiration of the original stay. The docket entries under the law here given, may be in the form following : I No. 67.] Form of docket entries when execution is issued notwithstand- ing the stay, etc. State, in the first •place, the reason of issuing an execution notwith- standing the stay, as thus : January 10, 18 — - This day came S. S., the above-named euretyfor stay of execution, and made and filed his affidavit that he is ap- prehensive, by delaying execution until the expiration of the stay, he may be compelled to pay the judgment ; and thereupon, and at his request, issued and delivered execution herein to C. C, constable. Or thus : January 10, 18-^-. On demand of the plaintiff, and being satisfied that the said S. S., 'surety for stay of execution, has removed into and now resides in the county of , [or say State of ,] issued and delivered execution herein to C. C, constable. Or thus : January 10, 18—. Being satisfied that the surety for the stay of execution herein is insufficient, I this day issued a written notice thereof to the defendant, requiring him to enter additional security ( j) Eev. Stat., g 6658. See the form of additional undertaking for stay, on next page. 262 OP THE STAT OF" EXEOITTION. [CHAP. ActioDi against siwefrieg, etc. for the said stay, ■within three days after service of such notice, and delivered said notice to 0. C, constable, to. be served. January 12, 18 — . Said written notice returned ; return indorsed : January 10, 18 — . Served the within-named 0. D. with a copy of the within notice. Or, January 10, 18 — . The within-named C. D. being absent, left a copy of the within notice at his residence. Fees,, cts. C. C, Constable. January 14,^ 18 — . The defendant having failed to give additional security for stay of execution, within three days from tlie time said notice.was served, I this day issued and delivered an execu- tion herein to 0, C, constable. After thus st Where bail is given for the stay of exeeuticai, if the defendant, against whom the judgment was rendered, die before the same is satisfied, the creditor may proceed against the surety in the under- taking in like manner as if execution had been issued a,gainst the defendant, and returned not satisfied for want of goods and chattels whereon to levy.' The statute provides, that when any judgment shall he obtained against any person who shall have entered himself bail or surety on the docket of any justice of the ;p&ice, agreeably to th« provis- ions of the justices act, the original judgment remains good and valid in law, for the use of such bail; who, at any time thereafter, may sue out execution, on such judgment, against the goods and chattels of the defendant, for the use of such bail, which must be so indorsed by the justice ; and such bail is also entitled to a tran- script of such judgment, for his own use, which has the same force and effect as transcripts in other cases.™ It will be observed that this provision of the law is applicable to all cases in which a person becomes bail or surety on the docket under the justices act.(l) Sec. VII. Eights and eemedies, as between a surety for •STASr AND A JUDGMENT DEBTOR WHO IS SURETY. We have seen" that where the debt" or claim upon which judg- ment is rendered against two or more, one or more of whom are sureties or accommodatiug indorsers for a co-defendant, the justice will, in such case, on application, certify which of the judgment debtors is surety; and the execution, issued upon the judgment, will command that the moqey be made of the personal property of the principal debtor, and, for want thereof, of the personal property of the surety. Now, in such case, if bail is given for the stay of execution on the judgment, the plaintiff has a double (k) Eev. Stat., ? 6669 ; 27 Ohio St. 468. (m) Eev. Stat., § 6659. (1) Bev. Stat., §6670. (n) See pp.203, 268. (1) See further, as to remedies of sureties against principal and co-sureties, post, title GUAKANTOKS AND StKBKTIES, p. 583. 264 OF THE STAY OF EXECUTION. [CHAP, Proceedings by and against sureties for stay. security and ought not to have the opportunity to disturb the rights of the two clg.sse8 of sureties. Hence, in such case, the statute provides that no execution shall be issued against any surety oi indorser to enforce a judgment, in which bail, for the stay of exe- cution has been entered without the written assent of such suretj or indorser, unless the stay-bail (who is primarily liable and must bo first proceeded against) shall be exhausted. After exhausting the personal property of the stay -bail, then the surety or indorser will be liable only for any unsatisfied balance of such judgment, and execution may then issue therefor." As a further protection, the surety or indorser, when he shall be of the opinion that such stay-bail is insufficient, may apply to the justice having custody of the docket on which judgment has been rendered, for further security upon the judgment, and thereupon the justice must issue a notice to the principal judgment debtor to ap- pear at such time as the justice may appoint, not exceeding five days from the time of the issuing of the notice, to show cause why further or additional bail should not be given upon the judgment. The notice will be served and returned by a constable in the same manner as a summons. If the principal neglects to attend at the time mentioned in the notice, or fails to satisfy the justice of the sufficiency of the stay -bail, or refuses to comply with such order as the justice may make in that behalf, the justice must issue exe- cution, and proceed to the collection of the judgment, as if the stay therein had expired." As a further protection, if the surety or indorser files with the justice an affidavit setting forth either that the principal debtor, or the bail for stay, is disposing of his property in such manner as to endanger the collection of the judgment from both or either, the justice must forthwith issue an execution upon the judgment, and proceed to the collection thereof, as if the stay thereon had ex. pired. But if the principal debtor, or the bail for stay, within ten days from the issuing of such execution, enters into a new or addi- tional bail for stay of execution, for the residue of the time for which the judgment might by law be stayed, to the satisfaction of tbo justice, then the justice must recall the execution until the time when the original stay expires." Where additional stay-bail is thus given, in the collection of the judgment afterward, the additional stay -bail must be exhausted be- (o) Kev. Stat., §J 6634, 6655. XXIV.] OP THE STAT OP EXECUTION. 265 Froceedings hyi and against sureties for stay. fore the surety or indorser will be liable ; and, in such cases, if the judgment can not be made out of the principal, the justice will proceed against the original stay-bail, and the additional stay -bail, ir, one action, as jointly and severally liable upon the original judgment.!" As to the costs in these proceedings, the statute provides that if the justice finds the original stay-bail was sufficient, and that the surety or indorser had not good reasons for instituting the above- mentioned proceedings, the justice must tax the costs against the surety or indorser who instituted the proceedings.!" The forms given in the preceding sections of this chapter can be readily modified and adapted to these proceedings by a surety or indorser. (p) Eev. Stat., § 6655. Note. — For further remedies of sureties generally, and as to contribution be- tween them when one has paid more than his proportion of the debt of theii principal, the reader ia referred to tlie title Guabaittobs and Subbtiks. 266 EXECUTIONS. [OHAP. Ezecuti<»n«.. CHAPTER XXV. EXECIJTION'S. 0. 1. When an EXEOurroN may be issued. II. The different kinds, and the geneeal requisites, of EXECUTIONS. III. Poems of executions.- • IV. What peesonal peopeett is exempt feom execution, V. The duty of the officeb to search for goods and make LEVY. VI. What kinds of personal property mat be taken on exe- CUTION. VII. Breaking doors, etc., to execute the weit. yiii. What constitutes a levy ; excessive levy. IX. Effect of a levy, and eesponsibility of the officee fob the goods befoee sale. X. Proceedings and rights when there are two or more executions against the judgment debtor. XI. Eedelivery bond, its form, and its effect. XII. Discharge of the levy before sale. XIII. Trial of right op property taken on execution oe at- tachment, by a constable, with poems. XIV. Eights and remedies op opfioees and co-sureties when property not belonging to the judgment debtor has BEEN sold on THE EXECUTION. XV. Effect upon the execution of the death of eithee party. XVI. Adveetisement and sale of peopeety. XVII. The title which is acquieed by a constable's sale. XVIII. Of the returns of executions, and the forms thereof. XIX. Execution prom common pleas on judgment of justices. XX. Justices and constables' duties and responsibilities as TO money collected. XXI. Executions on judgments op another justice. XXV.] EXEOPTIONS. "When an exeeution to be issued. Sec. I. When an EXEctrrioN hay be issued. Execution for the enforcement of a judgment before a justice of tlie peace (except when it has been taken to the common pleas on error, or appeal, or docketed therein, or during the time it may be stayed), may be issued by the justice before whom the judgment was rendered, or by his successor in office, on the a.pplication of the party entitled thereto, at any time within five years from the entry of the judgment, or the date of the last execution issued thereon." It is the duty of the justice (if the case be not appealed, taken up on error, docketed in the common pleas, or bail has not been given for the stay of execution), at the expiration often days from the entry of the judgment, to issue execution without a demar^d . and proceed to collect judgment, unless otherwise directed by the judgment creditor.* (The justice is responsible for his neglect to do 60.° The judgment creditor may have an execution issued immedi- ately after the judgment is rendered, against the personal property of the judgment debtor, unless he then cause an undertaking to be given for an appeal or stay of the execution. But the justice is not bound to issue lexecution until ten days after the rendition of the judgment, unless otherwise directed. He must, in the absence of all direction., issue the execution after the ■expi'ration of ten days, and if he neglect to do so, he will be liable for all losses which the judgment creditor may incur in consequence of the delay.* The justice may, but he is not required to issue execution after the expiration of the stay, unless requested to do so by the judg- ment creditor. A verbal direction to a justice to issue an execution, not made at his office, but in the township, would not, it seems, subject him to an action for neglecting the direction ; but a direction in writing delivered to him elsewhere than at his office, or a verbal direction given at his office, would be sufficient.* If a constable, who has levied on personal pfoperty which re- mains, at the time the execution is returned, unsold, the justice must, unless otherwise directed by th« party for whom such execu- (a) Eev. Stat., g 6648. can sue for the neglect of a (b) Kev. Stat., | 6649. justice, to perform this minis- (c) See ante, p. 9. terial duty. Id. lb. (d) 12 Ohio, 243 ; 13 Ohio St. 181. (e) Wright, 748. The judgment creditor alone 268 EXECUTIONS. [chap. The different kinds and general requisites. tion issued, or his agent, immediately thereafter issue an order thereby commanding a constable to expose such, property to sale.' And in cases where the constable shall make it appear, to the satisfaction of the justice, that he has been deprived of an oppor- tunity of levying an execution within the thirty days, or otherwise prevented from making the wholfe of the money therein required to be made, and shall make return to the justice who issued the same to that effect, the justice is authorized and required to issue further process of execution, for the amount or balance remaining unsatisfied, which must be served and returned, in all respects, as other executions.^ If an order of arrest has been regularly issued and executed before the judgment, the justice, unless otherwise directed by the plaintiff, his agent or attorney, will issue an execution against the personal property of the defendant, with a clause therein for his arrest, as mentioned in the next section of this chapter."" Sec. LL The different kinds, and the general requisites of executions.' The execution must be directed to a constable of the county, and subscribed by the justice by whom the judgment was rendered, or by his successor in office, or other justice, as hereafter stated./ It must bear date the day of its delivery to the officer, to be exe- cuted. It must intelligibly refer to the judgment, by stating the names of the parties, and the name of the justice before whom, and of the county and township where, and the time when it was ren- dered ; the amount of the judgment; and if less than the whole is due, the true amount due thereon. It must require the constable substantially as follows : 1. If it be a case where the defendant can not be arrested, it must direct the officer >to collect the amount of the judgment out of the personal property of the debtor, and pay the same to the party entitled thereto. 2. If it be a case where any of the judgment debtors are certified on the docket as surety, it must command that the money bo made of the personal property of the principal debtor, and for want thereof, of the personal property of the surety. In such cases, the (f ) Rev. Stat., § 6677. (h) Eev. Stat., § 6671. (g) Kov. Stat., § 6680. (i) Kev. Stat., § 6663. ( jj. See post, p. 313 ; Kev. Stat., § 6661. XXV.] EXECUTIONS. 269 The different kinds and general requisites. personal property of the priucipal, subject to execution within the jurisdiction, must be exhausted before any of the property of the bail can be taken in execution. 3. If it be a case where the defendant may be arrested, it must, in addition to the foregoing, direct the officer, if sufficient property •of the defendant subject to the execution can not be found to sat- isfy the judgment, that he arrest the debtor, and commit him to the jail of the county until he pays the judgment, or be discharged according to law, unless the exeuntion itself be accompanied by an order of arrest, as heretofore stated.' 4. It must in all cases direct the officer to make return of the execution and a certificate thereon, showing the manner in which he has executed the same, in thirty days from the time of hia receipt thereof.^ 5. If the execution is on a judgment against joint debtors, upon one or more of whom the summons was not served, the execution must contain a direction to collect the amount out of the joint prop- erty of all the defendants, or the separate property of the persona upon whom the summons was served, to be specified by name. If such judgment be also such that the defendants are subject to ar- rest thereon, the justice must further specify the names of those defendants served with the summons, who may be arrested for want of property.'' 6. When a constable has levied on goods and chattela which re- main unsold, the justice issues an order, commanding any consta- ble to whom the same may be directed or delivered, to expose such property to sale.' 7. If the judgment is against the township, or against the trustees of the township as such, the justice, instead of issuing an execution, must make out an abstract of the amount and date of the judgment, and the name of the person in whose favor it is rendered, with the amount of the costs accruing thereon, and cer- tify to the correctness of the abstract as appears from his docket. Tl'ls may be served by any constable of the township against which the judgment is rendered, by leaving a certified copy of the abstract with the clerk of the township, who must forthwith notify the trustees of the township thereof, and the trustees are required by law to draw an order on the township treasurer in ( i) See ante, p. 248. (k) Eev. Stat., ? 6664. (j) Bev. Stat., J 6633. (1) Eev. Stat., ? 6677. 270 EXECtTTioira. fcnAP. iForms 'of ■execatioti. &vor of such justice for the amount 'of the judgment and costs ; aJid the township treasurer must pay the sam^ out of the appropriate funds, if there are any such in his possession. If, however, there has becm an appeal talcen on the judgment, the or- der om the township treasurer will not be issued until a final Judg- ricn-l on the appeal." SeC. hi. F05MS OP EXECUTION. No. 68.] Common execution against personal property. (fieri facias.) The State of Ohio, township, county. To C. C, constable of said county : Whereas, on the — ■ — day of , a. d. 18 — , \the date of the Judgment,'] A. B. obtained a judgment against C. D. before me, the undersigBed, a 'justice of the peace of the township aforesaid, for tbe sum of dollars — =— cents, and dollars cents costs, \_filKng the blanks with the amount recovered of debt or damages and the costs only of the judgment creditor. If a part of the judgment has been paid, add^ upon which is due the sum of dollars and cents, with interest from the ; — — day of , a. d. 18—, until paid, with increase costs, etc.] You are therefore commanded to collect the amount of said judgment, \or if a part of the judgment has been paid, say : Ton are therefore commanded to collect the said amount due on said judg- ment,] with costs indorsed and increase, out of the personal prop- erty of the said 0. D., and pay the same to the party entitled thereto,* and make return of this execution and a certificate thereon showing the manner in which you have executed the same, in thirty days from the time of your receipt hereof. Given under my hand, this [date to be the day the execution is de- livered to the constable^ day of , a. d. 18 — . G.H., J. p. Indorse on the wra the costs not included in the judgment, and made or caused by the party against whom the judgment is ren- dered, and which remain unpaid." (m) Eev. Stat,, 1 1461. (n) See ante, pp. 229, 230. XXV.] BXECtTTIOtrS; 271 Form* of execution. No. 69.] Form of execution against two or more jttdgment debtors ap,d one or more is certified to be a surety. The State of Ohio, township, county, ss. To C. C, constable of said county: Whereas, on the day of ; , A. d. 18 — , A. B. obtained a judgment against C. D., principal debtor, and E. D. [and L. M.] bis sureties, [or surety,] before me, Q. H., a justice of the peace of the township aforesaid, for the sum of dollars aiid cents, and dollars and cents costs, l_fiUtng the blanks with the amount recovered of debt ord'amages and the costs, only of the judg- ment creditor. f If a part of the judgment hOfS- been paid, add : upon which is due the' suna of doUp-rs — -^ cents,, with interesit from the day of ^ — , 18 — , until paid, with increase costs, etc.] You axe therefore commanded to make said money, with costs indorsed and increase, out of the personal property of the said C. D. (certijSed on my docket to be the principal debtor,) and for want thereof, you make the same of the personal property of the said B. D. and Jj, M., certified aa aforesaid to be sureties,, and pay the said moneys to the party entitled thereto^* and make return of this execution and a certificate thereon, showing the manner in which you have executed th« same, in thitrty days, ff om the time of your receipt hereof. Given under my hand, this [th^ date to be the day the execu- tion is delivered to the officer,'] day of —■ — , a. d. 18 — . Gr. H., J. p. Indorse on the writ the costs made and caused by the party against whom- the judgment is rendered, not included in the judg- ment, and unpaid." J!fi>. 70.] Form of execution issued for the benefit of certified surety who has paid part of the judgment. Follow the preceding form to the aster(sk,f and then proceed as fol- loivs: upon which the said E. D. [i/ie name of the surety,'] paid the sum of dollars on the day of , a. d., 18 — ,, and for which he is entitled to and asks this execution against the siiiil C. D. on said judgment, for the said sum last mentioned, and inter- est from said date. Tou are therefore commanded to collect the said sum last above (o) See ante p. 229, 230. 272 EXECUTIONS. [chap. Forms of execution. mentioned, witli interest and increase costs, out of the personal property of the said C. D., and pay the same to the said E. D., and make [hei-e conclude as in the preceding form from the asterisk* to the md. No. 71.] Form of execution against personal property and for the arresi of the judgment debtor, when an order of arrest issued before judgment. Insert at the asterisk * in either of the two forms, No. 68 or 69 (as the same may or may not be against a principal debtor and his urety), the following : And the said judgment being rendered in a case where the said C. D. is subject to arrest and imprisonment by virtue of an order of arrest before judgment, executed, if therefore sufficient prop- erty of the said C. D. [etc.] subject to this execution can not be found to satisfy the said judgment, as above stated due, and costs, . then we further command you to arrest the said C. D., and commit him to the jail of said county until he pay the said judgment, as above stated due, and costs, or be discharged according to law. No. 72.] Form of execution against joint debtors, one or more not having been served. The State of Ohio, township, county, ss. To 0. C, constable of said county : Whereas, on the day of , a. d. 18 — , in a certain action brought by A. B. against C. D. and E. F., joint debtors, before me, the undersigned, a justice of the peace in and for said township, wherein the said C. D. was, and the said E. F. was not served with summons, the said A. B. recovered a judgment against the said C. D. for the sum of [here state the amount of the judgment, etc., and amount due thereon, as in the preceding forms."] You are therefore commanded to collect the amount, as above stated, due, out of the joint personal property of the said C. D. and E. P., or out of the separate property of the said C. D [If the defendant is subject to arrest on the judgment, here insert the preceding form beginning at the words: " And the said judgment being ren- dered," etc., and so on to the end of that form."] Make return of this execution and a certificate thereon, showing the manner in which yoa have executed the same, in thirty days from tho time of your receipt hereof. XXV.] EXECUTIONS. 273 rorma of execution. Given under my hand, this [date it the day it is delivered to the constable.'] Gr- H., j. p. No. 73.] Form of execution against an executor or administrator, Tho State of Ohio, township, county, ss. To C. C, constable of said county: "Vfhereas, on the day of , a. d. 18 — , A. B. recovered a judgment against C. D., as administrator [or say, as executor, as the case may be,] of the estate of P. F., deceased, before me, the un- dersigned, a justice of the peace of the township aforesaid, for the sum of [here insert the amount of the judgment, and if anything has been paid, the amount due, as directed in the preceding forms.] Toa are therefore commanded to collect the amount of said judgment as above stated due, with costs indorsed and increase, out of the personal j)roperty which was of the said F. F., at the time of his death, and in the hands of the said 0. D., yet to be administered. Make return of this execution and a certificate thereon, showing the manner in which you have executed the same, in thirty days from the time of your receipt hereof. Given under my hand, this [date of the day it is delivered to the constable.] G. H., j. p. If^o. 74.] Form of order for sale of property levied on and unsold. (venditioni exponas.) The State of Ohio, township, county, ss. To C. C, constable of said county: You are hereby commanded, that the personal property of 0. D., to wit : [here copy the inventory or description of the property,] which you [or if the constable who made the levy is out of office, or dead, say, which one C L., late constable of said county,] levied upon, and which remains unsold, you expose to sale, to satisfy as well a cer- tain judgment obtained on the day of , a. d. 18 — , by A. B., against C. D., before the undersigned, a justice of the peace of the township aforesaid, for the sum of dollars and cents [here state the amount recovered, and costs, and if a part has been paid, the amount then due, etc., as directed in the preceding forms,] as also 1 ho costs of increase. Make return of this execution, [etc.; proceed to the end as in the .preceding forms.] 274 EXECUTIONS. [chap. "What personal property exempt from gxeoution. Indorse on the order the increased costs, and costs made or caused by the party against whom the judgment is recovered, etc., as hereinbefore directed. Sec. IV. What personal propeett is exempt from execution. Every person who has a family, and every widow, holds the followiog property exempt from execution, attachment, or sale, for any debt, damages, fine, or amercement,? wlfether a resident or non-resident of the state.' First. The wearing apparel of such person or family ; the beds, bedsteads, and bedding, necessary for the use of the same; one cooking-stove and pipe; one stove and pipe used for warming the dwelling ; together with an amount of fuel sufficient for the period of sixty days, actually provided and designed for the use of such person or family. Second. One cow, or, if a debtor own no cow, household furni- ture, to be selected by him, not exceeding thirty-five dollars in value ; two swine, or the pork thereof, or, if a debtor own no swine, household furniture, to be selected by him or her, not exceeding fifteen dollars in value ; six sheep, the wool shorn from them, and the cloth or other article manufactured therefrom, or, in lieu thereof, household furniture, to be selected by the debtor, not ex- ceeding fifteen dollars in value, and sufficient food for such animals, when owned by the debtor, for the period of sixty days. Third. The bibles, hymn-books, psalm-books, testaments, and school-books used in the family, and all family pictures. Fourth. An amount of provision actually provided, and designed for the use of such person or family, not exceeding fifty dollars in value, to be selected by the debtor ; and such other articles of household and kitchen furniture, or either, necessary for such per- son or family, to be selected by the debtor, not exceeding fifty dol- lars in value. Fifth. One sewing-machine; one knitting-machine ; the tools and implements of the debtor necessary for carrying on his or her trade or business, whether mechanical or agricultural, to be selected by him or her, not exceeding one hundred dollars in value. Sixth. The personal earnings of the debtor, and of his or her minor child or childreUj for three months, when it is made to ap- pear by the affidavit of the debtor, or otherwise, that such earnings (p) Eey. Stat., ?? 5430, 5433. (q) 26 Ohio St. 577. XXVj] BXECUTIONS. 275 What personal property exempt from execution. are necessary to th« support of such debtor, or of his or her family. The three months date from the time of issuing the attachment or other process, the rendition of the judgment, or the making of an , order under which the earnings are claimed. Seventh. All articles, specimens, and cabinets of natural history or science, whether animal, vegetable, or mineral, except such as may be kept or intended for show or exhibition for money or. pecu- niary gain. The statute further provides, that every person, being the head .of a family, who is engaged in the business of draying for a liveli- hood, shall, in addition to the foregoing exemptions, hold one horse, harness, and dray exempt from execution ; and that every such head of a family engaged in the business of agriculturi', shall, in addition to the exemptions provided for in the preceding para- graphs, hold exempt from execution one horse, or one yoke of cat- tle, with the necessary gearing for the same, and one wagon ; and ^any such family head engaged in the practice of medicine, shall, in addition to the said exemptions provided in the preceding para- graphs, hold one horse, one saddle and bridle; also books, medi- cine, and instruments pertaining to his profession, not exceeding one hnndr.ed dollars in value, exempt from execution. The amount or value of property exempt, as above mentioned, must be estimated and appraised by two disinterested householders of the county, selected by the officer holding the execution, and sworn by him to impartially make such appraisement.'' Partners are not entitled to exemptions out of partnership property.^ Trespassing animals are not exempt from execution issued upon a judgment for the damages done by them.'' Any resident of Ohio, being the head of a family, and not the owner of a homestead, is entitled to hold, exempt from levy and sale on execution, on any judgment or decree, personal or real property, to be selected by such person, his wife, agent, or attorney, at anytime before sale, not exceeding five hundred dollars in value, ip adi^ition to the amount of chattel property by law exempt; the value of said property to be appraised as has been mentioned.' It can be allowed to a widow or widower living with an unmar- (q) Bev,: Stat., ^ 4261 . gj 5434-5445 ; 28 Ohio St. 483 ;. (r) Bev. Stat., ^ 5441, 544SJ. See 81 Id. 437, 447. homestead ]»W3. Kev. Stat., (s) 26 Ohio St. 317. 18 i 276 EXECUTIONS. [chap. What personal property exempt from exeoulion. ried daughter ot unmarried minor son, and to hnsband and wife living together; but if either has a homestead, the other can not ■claim one or the five hundred dollars." The husband, or, in case of ihis failure, the wife, may make the demand. These laws relating to a homestead, and the five hundred dollars in lieu thereof, aro .a])plicable to all courts, but do not extend to a judgment on mort- ,giige made by a debtor and wife, nor to a claim for work nnd labor less than one hundred dollars, nor impair the lien by mortgage or •otherwise of the vendor for the purchase-money of the premises in 'question, nor the statutory lien of a mechanic or other person for jnaterials or labor in the erection of the dwelling-house thereon, ;inor for the taxes due thereon." If, at the time the debtor applies for the allowance to him of a fund or property in lieu of a homestead, he is the head of a fiaraily, but ceases to be so by living alone and separate from his children •at the time the fund or property is to be applied, he will not be en- titled to the same or the exemptions provided for the head of a family.' Where the judgment debtor is a tenant for a single year of a ■hou$e, stable, and parcel of land, unless he claims the same as a homestead, he will be entitled to the exemptions provided for those who have no homestead.'' Thfe debtor's claim on a homestead is not forfeited by a fraudu- lent sale of the homestead property, made by him to cheat his Kcreditors.^ The lease of the homestead for a year, and the debtor going to .another county for temp6rary purposes, does not preclude him from having the homestead set off for him.^ As to the property of females, other than a widow, an unmarried ■woman is entitled to hold the following property exempt from ex- •ecution, attachment, or sale, to satisfy any judgment, decree, or ■debt :'■ First. Wearing apparel to be selected by her, not exceeding in ■value one hundred dollars. Second. One sewing-machine. (s) Kev. Stat.", ?J 5436, 5433 ; 23 Ohio (v) 15 Ohio St. 280. . St. 603.. (X) 14 Ohio St. 298; 28 Id. 61. (t) 24 Ohio St. 488; 26 Id. 817. (y) 12 Ohio St. 433. ,.(u) Kev. Stat., 5 5484. ;. (z) Bev. Stat., §5426. XXV.] EXECUTIONS. 2,77 What personal property exempt from execution. Third. One knitting-machine. Fourth. Bible, hymn-book, psalm-bodk, and any otber booksi 'not exceeding in value twenty -five dollars. A married woman, against whom a judgment is rendered and ex- ecution issued, is entitled to the benefit of all the exemption laws •of the state to heads of families." Where a benevolent association set apart a beneficiary fund to 'be paid to the families of deceased members or to any member of such families, the fund, not exceeding five thousand dollars, is ex- empt from all liability to be taken to pay any debt of the deceased -Jiiember.'' The regalia, insignia of oflSce, journals of proceedings, account 'books, and the private work belonging to any benevolent society in this state are exempt from execution.^ So all propert}^ used or kept to be used by any mnnicipal corporation or fire company, for 'the purpose of extinguishing fire, is exempt from execution j but the owner may create valid liens thereon by bill of sale or mortr jgage.g It will be observed from what is above stated that there are cer- tain enumerated articles which are absolutely exempted from execution. These the officer is bound at his peril to notice, and not take on an execution, unless turned out by the debtor, who waives his right of exemption. Of course, such exempted property may *e mortgaged by the debtor ; and by such mortgage he waives the benefit of the exemption so 'far as the mortgage incumberance ex- tends and is operative f and where such a mortgage of exempted property matures so that the mortgagee has a right to tjhe possession, he may obtain a judgment on the mortgage debt, and then turn out the mortgaged property on an execution issued on the judg- ment ; and in such case the debtor sustains no injury to his rights of possession which would support an action of trespass.* It will also be observed that as to certain property the exemp- tion depends upon a selection to be made by the debtor. In all -Buch cases the selection should be made by the debtor at the time -of the Iev>, if the debtor be present; but if not present, then th» fioiection should be made by the debtor, and notice thereof givea hy him to the officer within a reasonable time after such selection (a) Kev. Stat., ?§ 5319. (d) 3 Ohio St. 270. (b) Rev. Stat., g? 5427. (e) 3 Ohio St. 270. (g) Eev. Stat., H 5428, 5429. ' 278 EXECUTIONS. [char Duty of officer to search for goods and make levy. and before the sale. Upon such selection and notice thereof, the officer will deliver the selected property, if previously levied upon,, to the debtor, being first estimated and appraised as above men- tioned. An officer can not be sued for the seizure and sale of prop- erty which is exempted from execution on the selection of the debtor, unless the debtor can show that he actually selected the property for exemption, and that the officer had notice thereof.' . If the officer levy on property specifically exempted from execu- tion, Or upon property which he knows has been properly selected, be is liable. A verbal promise by the judgment creditor to indem- nify an officer for levying on goods claimed by the debtor to be ex- empt is valid and binding.' If the debtor agree upon a time and place to select certain property, and purposely fail to appear, it will, be deemed a waiver of the selection of that particular property .J ■Sec. V. The duty of the officer to search for goods and MAKE LEVY. The mere fact that the debtor had property subject to levy will not, in general, be sufficient to make a constable liable for neglect. Other facts and circumstances must be proved, from which it may appear expressly or presumptively, that if the officer had made any reasonable inquiries, or used slight diligence, he could have collected Ihe money from the property of the execution debtor; for, it is only when the constable " willfully and carelessly omits to levy on- property within thirty day8,"s that he renders himself liable for the negligence. If a judgment debtor have property liable to seizure on the exe- cution, openly kept by him, so that, by going 'to his residence, the constable could levy upon it, and the constable knows the defendant and where he resides, or knows the defendant and makes no inquiry to ascertain his residence, and the constable makes no levy, and shows no exertion on his part to make a levy, he has willfully and Cai-elessly omitted to make a levy."" Mere inquiry of the execution debtor for goods is not a search. If it be shown that the debtor was in possession of property not exempt from execution, and that the officer knew it, ho will, in general, be held responsiblo, and the burden falls upon hira to show (f ) 3 Ohio St. 270. (i) 34 Ohio St. 22. (g) Rev. Stat., g 6668. ( j) 29 Ohio St. 667. (h) 1 J. J. Marsh. 550; 6 Wend. 309. XXV.] EXECUTIONS. 279 What kind of property may be levied oh. •that the property was not owned by the defendant, or was other- wise not subject to execution, or that he did exert himself so far as BOt to be chargeable with willlul carelessness Id omitting to make & levy.' Honce, in many cases, the officer must choose between making himself liable to the execution creditor for not making a levy, and making himself liable to the judgment debtor, or some third person, for making a levy.J Where the goods of the debtor are in the possession of another person, Ihoy may be levied upon, provided such other person has no interest or property in the goods. Whenever the question of ownership of property is so far doubtful that the creditor and ■officer may be supposed to act, and do act, in good faith and on reasonable grounds for believing the property to be the debtor's, the true owner has no right to resist the seizure of the goods or the execution by a breach of the peace or personal violence. In suck jcase, the owner of the property should submit to a seizure and re- port to his action against the officer.^ ;Sec. VI. What kinds of personal propeety mat be taken cm EXECUTION. Goods and chattels are the only kind of personal property that •can, in general, be taken on an execution and sold.' Growing wheat and corn, and all other crops produced by annual planting and cultivation, are chattels, and, as such, may be levied upon and sold on an execution.™ If levied upon and sold befor© they are ripe, the purchaser has a right to take care of arid gather them." The constable may levy on a growing crop, and; under the direction of the judgment creditor, wait until it is ripe for harvest, and then, upon an order in the nature of a vendi issued by the justice, sell it." The officer, of course, has no right to cut down or gather a crop ■'before it is ripe. If real estate is levied on, without a specific I^vy on the crops, the levy does not include the growing crops. p Such annual productions or fruits of the earth as clover, timothy, (i) 5 Wend. 309. (n) 7 Mass. 34; 2 Dana, 205. As to (j) 16 Conn. 536, 555, 558; Stra. 660, levy upon toUa of turnpike or 429, 436. bridge company, see Bev.Stat, (k) 3 Oiiio St. 159. ?J 3535, 3536. (1) Kev. Stat., i 5374. (o) 2 Johns. 418. ,{ni) 2 Johns. 418; 17 Id. 128. (p) 10 Ohio St. 124; 12 Ohio, 88. 280 EXECUTIONS. [char What kind of property may be levied on. spontaneous grasses, apples, peaches, pears, etc., are not personal property, but incidents to the land ; but if severed from the land, and, it seems, if owned by one who does not own the land, they are chattels. (2) In general, fences and buildings, and such vats, engines, boi'ers, machinery, etc., as are annexed to the realty, and appropriated io the use or purpose of that part of the realty with which they are ■connected, and intended as permanent accessions to the realty, are ^tures, and can not be levied on as the personal property (1) of the owner of the land. And, in general, if a tenant make permanent improvements upon- rented land, such as a dwelling-house or out-buildings, they be- come the property of the landlord and a part of the realty, and the- tenant can not remove them, except by the consent of his landlord.. Jf, however, a building, shop, or machine be erected by a' tenant lor the purpose of. carrying on his trade, it is, in general, considered his chattel property, which he may remove, and which, therefore^ may be levied upon as his personal property .« Thus, it has been held, that a house to carry on the business of manufacturing var- nish ; or vats to manufacture soap ; or sugar-kettles set in a furnace- (q) 1 Salk. 368 ; 6 Oowen, 665 ; 7 Id. 319. (1) 2 Ohio St. 511. It appeared, in this case, that one Hewitt owned a lot npon- fvhich was erected a woolen-manufactory. The oarding-machines, spinning- machines, power-looms, etc., were fastened to the floor with cleats, easily de- tached, and without injury to the factory building or the machinery. Such machinery is usually subject to be removed from one part of the factory build- ing to another, to suit convenience ; and is sometimes taken out and sold, and new machinery cleated in its place. All the machinery of the factory was driven by an engine, and connected therewith by shafting attached to the ■fcuilding, and by bands and straps. The boilers were bolted upon timbers planted in the earth. The steam-engine was fastened upon timbers, which rested for their foundation on a stone wall laid in the earth. On the whole, the woolen-factory was worked, and the machinery attached to the factory build- ing as usual. Hewitt executed to Teaf a mortgage, describing the property as " Lot No. 322, in Vier's addition to the town of Steubenville, on which is erected « woolen-factory ;" and conveyed the lot with the " appurtenances." The ccurt held, that the factory building, and engine and boilef which drove the machinery, passed, under the mortgage, to Teaf; but that no other part of the machinery of the woolen-factory passed by the mortgage ; and that a woolen or other manufacturing establishment containing machinery annexed fly cleats, and easily removed, may be stripped of such machinery by execution, as chattels, and sold as personal property, leaving, however, the boiler and en- gine from which it is severed, and perhaps the shafting, to remain as part of the realty. See also 16 Ohio St. 446 : 14 Id. 658. (2) 1 N. Y. 90j 4 Met. 680; 13 Gray, 498 ; see ante, p. 161. XXV.] EXECUTIONS. 281 What kind of property may be levied on. to make sugar; or a cider-mill and press ; steam-engines or thresh- ing-machines fixed to the land by means of a building; earding- machines and looms; kilns and sheds for making brick; — thosp and the like, when erected by a tenant at his own expense and foi his own use, may be removed by him at or before the expiration of his lease : and, consequently, may be levied upon as his chattels.' So, if by the terms of the lease or agreement between the land- lord and tenant, the latter has reserved the right to remove hi». improvements, they may, together with the leasehold estate, b*'' levied upon and sold as the personal property of the tenant. The interest and estate of a tenant in rented land or buildings, may be also taken upon an execution against him. If, however, 8 lease |)e renewable forever, it can not be levied on and sold as per- sonal property .» The statute provides' where lands may have been let, reserving rent in kind, and when the crops or emblements growing or grown thereon, have been levied on or attached, by virtue of any execu- tion, attachment, or other process, against the landlord or tenant, the interest of such landlord or tenant against whom such process- was not issued, shall not be affected thereby; but the same may be- sold, subject to the claim or interestof the landlord or tenant against whom such pr&cess did not issue. By a usage of the country so long continued as to have become a law of the land, a landlord leasing to a cropper for a year, reserv- ing as rent a part of the grain, has a lien upon the growing crop, ands the entire crop can not be removed by the tenant or those acting under him, until the rent is provided for or satisfied." Hence, a constable holding an execution against such cropper, would not be authorized to remove the crop until the landlord was satisfied. He could levy on the cropper's interest and sell it, and the purchaser, after setting apart or providing for the landlord's share, would take the residue." Money of the judgment debtor, and bank-notes in his possession or house, may be taken on an execution, if it can be done without violence.' The sale of money or bank-bills need not take place,. but are at once credited on the execution.'' If a bank-bill bo ■ (r) Gwynne on Sheriffs, 247-249. (v) 1 Cranch, 117 ; 1 Pet. Cond. 261 ; (g) 3 Ohio, 449, 46^; 7 Bng. C. L. 83. 1 Dana, 535; 12 Johns. 220, See 19 Johns. 73; Eev. Stat, 396; 6H. &J.264; 4Vt.513; § 5374. 16 Pick, 567. (t; Eev. Stat., i 6679. (w) 4 New Hamp. 198 ; 16 Pick. 567. (n) 11 Ohio, 864. 282 EXECUTIONS. [CHAK What kind of property may be levied on. banded to an officer for examination only, he may keep it and ap- ply it to the execution in his hands.^" Any one owing the judgment debtor may pay his debt to tho constable, who will receipt therefor, and credit the amount on tha execution ; and therefore money in the hands of the officer, be- longing to the judgment debtor, may be so credited.^ Promissory notes, bonds, and other contracts, deeds, private papers, account-books, bank or railroad shares, public stocks, or stocks of incorporated institutions, are not, in general, liable to bo seized or sold on execution.^ Goods which a person holds and is in possession of by- virtue of a mere lien, having no right to use the same, such as a pawnee, common carrier, or the like, can not be levied upon under an execu- tion against him.» Goods subject to such a lien or on account of work done on them, can not be seized on execution against the owner thereof, unless the amount of such lien is discharged. The person having the lien is not bound to take the property as his owq, and account fca* its value over and above the lieti, nor is he bound to deliver up the property before his lien is discharged,*" and a levy, without the right of seizure and possession by the officer, can not, in general, be made." Where goods are mortgaged in good faith and delivered to the mortgagee, they can not be taken on an execution against the mortgagor, as the property vests in the mortgagee, subject to be divested on the performance of the condition contained in the mortgage.'' But a mortgagor of goods who retains and is entitled, by the terms of the mortgage, to possession for a time certain, has thereby an interest in. tho goods which maybe levied upon and sold upon an execution against him ;« but can not be seized and sold upon an execution against the mortgagee ;' and as against the mortgagee, the right of control and possession under such levy ia (x) 12 Johns. 375. (b) 4 Mason, 464; 4 Wend. 292. (y) Kev. Stat., §§ 5482, 6705; 15 Ohio (o) 5 Ohio, 169, 174. St. 176. , (d) 1 Pick. 399 ; Gwynne on Sherifl^ (z) 2 Blackf. 361; 6 Id. 377; 2 N. 229; 2 N. Hamp. 13; 8 Missi Hamp. 93 ; 12 Mass. 506 ; 332 ; 1 Ves. Jr. 430. Wright, 455; 9 Johns. 96; 1 (e) 8 Wend. 500; 14 Ohio St. 457; Bi.)b, 806 ; 2 A. K. Marsh. 480; 15 Id. 52^ 10 Id. 412 ; 6 Id. 3 J. J. Marsh. 291. 92 ; 20 Id. 88 ; 18 Id. 184. (e.) 6 Har. & Johns. 264. (f ) 4 Cow. 491 ; 9. Wend. 258. XXV.] EXECUTIONS. 283 What kind of property may be levied on. I I -not greater than that of the judgment debtor who executed tho mortgage.^ Hence, after such mortgage becomes absolute — that is, after the period which, by the terms of the mortgage, the posses- sory interest of the mortgagor in the property ceases — the goods can not bo levied upon as his property, but may then, and not be- fore, be levied upon as the property of the mortgagee.'' Mortgages of railroad companies (executed under statutory piT> visions, authorizing them to mortgage their entire road and' fix- tures, with the income and resources, and declaring that such mortgage shall be a good and substantial lien upon both the real and pergonal property, and where they contain apt language to that effect), attach to and cover future acquisitions of property for the use of the road. Under such a mortgage, even the east-ofl articles, fragments, and old materals, once forming part of the road or used in its operation, still continue under the mortgage, if -a proper management of the road requires that they should be re^ cast or exchanged for new articles for the use of the road.' Tha personal property so covered by the mortgage may be levied upon and sold subject to the mortgage lien ; and where the amount of the mortgage debt exceeds the entire value of tho mortgaged property, and the mortgage debt is due and- the mortgagee en- titled to possession, only nominal damages can be recovered against the ofScer for refusing to levy upon and to sell the property on an -execution against the company ; for, the mortgage lien, when en. forced, would leave no interest in the purchaser on the execution.' A loan, to be turned into a sale on complicance with certain con- dition^ does not vest a title in the bailee which can be levied upon under an execution against him.J (g) 19 Ohio St. 291. by statute; and hence, the im- (h) 4 Cow. 491 ; 9 Wend. 258 ; 15 terest of a mortgagor in chattel Ohio St. 524. As to proceed- property of which he is in pos". ceedings in attachment against session after the mortgnge a mortgagor of chattels, see debt is due, may be attached post, title Attachment. At subject to the satisfaction of common law, mere equitable the mortgage debt. 14 Ohio interests can not be taken and St. 457. See post, title At- sold on execution for the rea- tachment. son, as it is said, that where (i) 15 Ohio St. 523; 10 Id. 872; 14 there is no legal right, there is Id. 187. no legal remedy ; but proceed- ( j) 7 Watts, 875 ; 2 Penn. 481. ings in attachment are created 284 EXECUTIONS. [CHAK What kind of property may be levied ou. So, where there is a sale and delivery of a chattel, witli part payment of the purchase money, but with an express condition that no title shall vest in the purchaser until all thei purchase money is paid, the ownership does not pass to the purchaser until all the purchase money is paid ; at least, in such case the purchaser acquires no interest in the chattel which can be levied upon as his property.* The interest of the judgment debtor in goods leased to him or hired by him for a specified period, may be lievied upon and sold." The purchaser, as in the case of a sale of a leasehold estate in land or buildings, takes the interest of the lessee or bailee, until the ex- piration of the lease or hire, and then the property reverts to the original owner. A mere equitable interest in personal property,, such as the re- siduary interest in goods after an assignment to a trustee for the benefit of creditors, can not be seized or sold on execution."* In general, goods and chattels levied upon, can not be taken in execution by another officer upon another execution ;° if, however, fraudulently held under a prior execution, the officer should levy upon them.P The goods of a deceased person can not be seized for the per- sonal debts of the executor or administrator.' And goods held in good faith by a trustee for the benefit of others, are, in like man- ner, protected from seizure for the individual debts of the trustee. A stage-coach or a railroad car may be seized, although it is just about to depart or has just arrived.' • As goods obtained by fraud in the sale, or by false representa- tions, may be reclaimed by the owner, the officer has no right to seize goods in the hands of the defendant, which he has obtained either %■ fraudulent representations of solvency or other fraudulent pretenses." if a person, guilty of such fraud in procuring goods, sell them (1) 23 Ohio St. 1. And possession in (m) 3 Piolc. 285 ; 3 T. E. 292 ; 6 such case by the purchaser, and JSlackf. 335. a sale by hiin to a bona, fide (n) 5 Johns. 343. purchaser without notice of (o) 5 Mass. 271. the c onditionaljt itle. will pass (p) 8 B. & C. 132 j 5 Id. 660. no title to the latter. 28 Ohio (q) 4 T. K. 633. St. 630. SeeHEng. C. L.90; (r) 3 Pick. 338. 64 Penn. 49?. (s) 2 Mason, 236 ; 7 Taunt. 89 ; 1 HUV N.T. 312. XXV.] EXECUTIONS. 285^ Breaking open doors, etc. — What constitutes a levy, etc. to an innocent purchaser without notice of the fraud, the goods ■will vest in such purchaser, and may be levied upon by execution against him.' Sec. VII. Breaking books, stc, to execute writ. The law in regard to the right and authority of the oflScer to enter the dwelling-house and to break open doors for the purpose of making a levy upon goods, is precisely the same as when the officer has an order of arrest in a civil action to execute. The law in relation to the execution of an order of arrest in this respect haa already been stated." Sec. VIII. What constitutes a levy ; excessive levy. The officer should enter upon the premises where the goods are^ and take possession of them, if they are of such a nature that pos- Bession can b.e taken. He should, in some manner, assert his right or title to the goods by virtue of the execution. The making of an inventory is not necessary to constitute and complete a valid levy.^ The goods should be within the officer's view. Therefore, where a sheriff seized a few articles outside of a store, and proclaimed a levy on the goods locked up in the store, and not within view, it was held that this was not a levy; and that the officer should have broken open the store, and actually taken possession of the goods." The goods must be subjected to the control of the officer, so that he may be able to remove them.'' Actual touching of the goods is not essential ; but having the goods in his power, and directly de- claring that he levies upon them, or taking an inventory, or mak- ing a memorandum of the levy, constitute a levy by the officer. Thus, if the officer go with the defendant into the field. to levy on animals which are there, and, in view of them, make a note of the levy on the back of the execution, this will constitute a good, levy. But if the officer, instead of going to the field, had, at the house of the defendant, or elsewhere, made a memorandum of a. levy upon animals in the field, not within his view or under his control, and then left, without taking any further steps to complete (t) As to the affirmance by the vendor (u) See ante, pp. 79, 82. of such sale to make it valid, (v) 10 Ohio St. 488. see 6 Met. 68 ; 12 Pick, 812 ; (w) 16 Johns. 287. 16 Conn. 81 ; 13 Wend. 570 ; 1 (x) 16 Johns. 287 ; 2 N. Hamp. 66. Hill, 811. - :286 EXECUTIONS. [chaiv What constitutes a levy, etc. the levy, these acts would not constitate a levy.^ K, however, the levy was thus made by the assent of the judgment debtor, he cculd not afterward object to the regularity of the levy ; but sucb assent would not preclude other judgment creditors from treating the liivy as invalid.' Whcro the officer went into the house of the judgment debtor, and told him that he came to levy on his goods, and laying his hands on a table, said, " I take this table," then locked up the exe- cution in the drawer of the table and took the key, and went away without any further steps to take the control of the property, it was held that there was no claim on any of the goods by such a levy; and that the officer had neither actual nor constructive pos- session after he left them. So, where the sheriff with an execution against a church corpora- tion entered the body of the church on a week-day, while the sex- ton was in the bell-room ringing the bell, and then, in the presence of no one, bjit in view of the organ in the gallery, entered on the back of the execution a levy on the organ, and then retired with- out seeing the sexton, who was unaware of his presence, and con- tinuing in control of the building and its contents, and in possession -of the keys as before, it was held, that a chattel mortgage of the organ afterward made, and prior to the disclosure of such levy either to the public or to the officers of the church, and duly filed by a bona fide creditor of the church, would hold the property. Upon making a levy upon a ponderous article like an organ, no manual possession was necessary, but in omitting to take manual possession of the organ, it was necessary for the officer to say or do something more than a secret act. He should have seen and spoken to the sexton, and have asserted his claim of dominion over the organ in his presence." As has been already stated, the officer is not required, in order to make the levy complete, to take away the goods.*" They may be left in the possession of the judgment debtor a reasonable time, and if so left without any fraudulent motive, it will not impair the levy. The officer, however, by thus leaving the goods in the pos- sion of the judgment debtor, makes himself responsible to the (y) 1 Munf. 278 j 8 Hill, 8. 0. 276. (a) 13 Ohio St. 79. of the defendant to the execution. And such right of possession and interest acquired by replevin, is superior to any right to be acquired by a subsequent levy on the same property under an execution against the same judgment debtor. It follows that after the prop- erty is replevied by one claiming to be the owner and taken from the constable, it is not subject to levy as the property of the judg- ment debtor ; and if taken by such subsequent levy and sold, the plaintiff in replevin may, it seems, maintain an action of replevin against the purchaser." The reason why the replevy of the property thus in general changes the ownership, is that the replevin bond takes the place of the property to the extent of the interest of the defendant in re- plevin, but not exceeding the interest claimed by the plaintiff in replevin, and, to that extent, the plaintiff in replevin becomes in- vested with the property, leaving the defendant in replevin to seek his rights in the action of replevin and on the replevin bond.? If goods levied upon are replevied, the officer should give the judgment creditor or his attorney notice thereof. The officer, after giving the notice, is not required, as an official duty to employ coun- sel to defend against the action of replevin.? The officer is not responsible for the loss of goods happening by fife, theft, embezzlement, natural decay, or the like. He must act in good faith, and is responsible for his own gross negligence and fraud, and the gross negligence and fraud of his servants and agents with whom he may leave the goods. The common care which men of ordinary prudence exercise in keeping and preserving property of the like kind, he is bound to exercise, and no more ; and if, not- withstanding such care, the goods deteriorate in value, or decay, oi perish, the loss must be borne by the judguient debtor.' (o) 14 Ohio St. 182; 10 Id. 461. (q) As to the form of return of the (p) 14 Ohio St. 182 ; 10 Id. 461. See officer, see post, sees. 14, 18. post, title Kbplkvin, sees. 4, 5. (r) Story on Bail. 130. 290 EXECUTIONS. [CHAP^ Priorities, etc., when there are two or more executions. Sec. X. Pkoceedings and rights where there are two or MORE EXECUTIONS AGAINST THE JUDGMENT DEBTOR. TV hen there are two or more executions against the same debtor, issued upon different judgments, the execution first levied will ob- tain a priority. If, however, two executions are delivered to the same ofScer, on the same day, no preference will be gained by either, it being the duty of the officer to levy them upon the same property; and the money made will be distributed in the proportion which each judgment bears to the amount of money made by the sale, after deducting the costs of the execution, levy, and sale. In all other oases, the execution first delivered should be first levied and first satisfied. When an execution has been levied on property by one ofScer, another officer, having an execution against the execution debtor, can not levy on the same goods, inasmuch as he can not take the control or possession of them. But if an officer, after making a levy by one execution and in- dorsing the levy, receives another execution against the same debtor, he may, without again going through the form of a levy, treat the property as also levied upon by the second execution, and indorse on the second, a levy, as of the date of his receipt of the second execution." He may then advertise the property for sale under both executions, and sell, under the first, sufficient to satisfy it, and under the second, the residue of the property or sufficient to satisfy it. If an officer receive two executions upon difierent days against the same debtor, and levies and sells by virtue of, and pays over the money upon, the execution last delivered, the sale will be good and the r archasers will hold the property, butthe constable will be liable to the execution creditor who first delivered his execution." It will be perceived that, where executions are issued against the same debtor, and in the hands of different officers, it behooves each one to be diligent; for, in such case, an execution, even latest in date, may obtain by prior levy a preference, and the dilatory officer may thus, by willfully and carelessly omitting to make a levy, become responsible to the execution creditor for the amount of the execut'.m.' (s) Ld. Bayip. 261 ; 4 East, 423; 1 Salk. 320; 4 Cowen, 468, 469; 18 Johns^ 31 1 . (t) Rev -'tat., § 6668 ; 4 Cowen, 467, 468. (u) 33 Ohio St. 85. If th» first levy was i> lere paper levy, like the second, or void, both will be void. Id. lb. XXV.J EXECUTIONS. 291 Eedelivery bond and its effeet — Form. ' — — • — — ^^^-^— ^— .■ If an execution has teen levied with a fraudulent design to cover up property, or a levy and sale has been made to cover up property from other exeeutions, or other devices used to hinder, cheat, or de- fraud creditors, a subsequent execution, at the suit of another cred- itor, may levy uppn and sell the property thus fraudulently man- aged ; and if it be claimed under the previous levy and sale, the question of fraud -will be a proper subject of inquiry before the justice, upon the trial of the right of property." Sec. XI. Eedelivert bond and its effect. We have already seen, that although the oflScer may make the judgment debtor his agent or bailee to take care of the property levied upon, yet if he does so, he will be responsible to the execu- tion creditor for the value of the property, or the amount of the execution, if not forthcoming. The officer must not therefore leave the property with the debtor, unless he is willing to take this risk. He is not bound, in any case, to leave the property with the debtor. It is always safest to remove it, if the debtor will not give security for its redelivery; the statute providing, that a con- stable, having levied on goods and chattels, of which he permits the party against whom the execution issued to retain the posses- sion, may take such security for his own indemnity as he may re- quire, that such property shall be delivered at the time and place appointed for the sale thereof.' It will be observed that the secu- rity authorized by the statute is taken for the indemnity of the officer only; and therefore, if secui'ity be given, the officer is, not- withstanding, responsible for the property to the judgment cred- itor, who may proceed against the officer, if the property is not de- livered by the execution debtor at the time and place appointed /or the sale ; and the officer must look to the execution debtor and the security for his indemnity.'' The oflScer usually takes a bond, with surety, for the redelivery of the property, which may be in the form following : I7o. 75.] Form of bond for the redelivery of property taken on execution. Know all men by these presents, that we, A. B. and S. S., are held and firmly bound unto C. C. in the sum of [here insert cU>oui (u) 1 Wils. U. (w) 6 Ohio, 450. (v) Rev. Stat., § 6678. 19 292 EXECUTIONS. [chap. Redelivery bond — Safe-keeping thereafter. double the amount of the value of the property'] dollars ; for the pay- ment of ■which we jointly and severally bind ourselves. Sealed with our seals, and dated this day of A. D. 18 — . Whereas, the said C. C, constable of county, by virtue of a writ of execution duly issued by G. H., a justice of the peace of said county, at the suit of A. B. against C. D., on the day of , A. D. 18 — , to collect out of the personal property of said C. D. the sum of [here insert the amount of execution, etc."] ; hath levied upon the following described property of the said 0. D. [here give a schedule of the property], and which said property the said C. C. left in the possession of the said C. D., at the request of the above obligors, at the time of the execution of this writinfj obligatory. Now, if the said C. D. shall redeliver said property to the said C. C, or other constable holding an execution or order for the sale of the same in said suit, at the time and place appointed by said C C. or said other oflScer, according to law, then this obligation to be void ; otherwise to remain in full force. A. B. [seal.] S. S. [seal.] It has already been stated in the preceding section of this chap- ter that the officer only can maintain an action against a wrong- doer who takes the goods from his possession, or injures them while in his possession. Nothing, however, is said in that Section as to the remedies of the officer against those who injure, or wrongfully take possession of the goods during the period the judgment debtor, by the terms of the redelivery bond, is entitled to their possession. The constable may sue in replevin, or other proper action, any officer or third person for such interference — ^the possession of the debtor being deemed in law the possession of the con8table='(l) as to such officer or third person. (x) 10 OMo St. 488 ; 6 Oliio, 451 ; Wright, 837. See post, title Kepletin. (1) If a sheriff seizes goods left by a constable with the debtor under a re- delivery bond, the constable may maintain an action of replevin against the sheriff without first demanding the goods ; and the constable failing in such action to execute a replevin bond, may proceed to trial, and recover. 10 Ohio St. 488. In such action, to make out a case, calling on the sheriff to establish B bettor right to the property, the constable is not bound to produce, in cvi- XXV.] EXECUTIONS. 293 Discharge of levy before sale.' So, too, the debtor has such an interest in the property, while he holds it for the constable, that he may sue any one who takes or injures' it,y but there can be but one satisfaction as against the wrong-doer. If the property is wrongfully taken from the debtor, this does not affect the liability of the debtor or his surety to tho constable, 00, the redelivery bond. Sec. XII. Discharge of the levy before sale. The execution creditor, by releasing the levy, will, in general, discharge the judgment, and he must then resort to the new con- tract, if any, under which the levy was released.'' But the release of a levy will not discharge the debtor, if procured by his own act; as, by pretending that the property is owned by other persons. If an ofiBcer, for his own private purposes, pays the execution creditor with his own proper money, he can not by assignment or other arrangement, keep alive the levy for his benefit; the levy by the payment is discharged. Such ai-rangeraent, and indeed any arrangement by which an officer for his own private gain, inter- meddles with the execution, and endeavors to retain a levy, or to hold the execution before levy as a security or indemnity for ad- vances made by him, are against public policy, and lead to oppres- sion. Hence, an officer can not, with his own money, pay the judgment, and afterward levy the execution, even if the debtor has stipulated that the officer may use the execution for his indem- nity; the execution is spent by the payment.* The officer, how- ever, may maintain an action for the money so advanced.'^ A levy upon personal property can not be permitted to remain as a mere security for the payment of the judgment. In general, therefore, if, after a levy, the judgment creditor, from humanity or other worse motive, direct the officer to proceed no further with the execution until further ordered, or until some (y) Story on Bailment, 98, sec. 133. (a) 7 Johns. 426 ; 15 Id. 443 ; 12 Id. (z) 8 Cowen, 192. 207. (b) 3 Johns. 434; 14 Id. 87. - _ dence, the judgment upon which the execution he levied was founded. This is an exception to the general rule, which requires a party who claims under an execution, to give in evidence, a transcript of the judgment which authorized the issue of the execution in the absence of any statutory provision dispensing with such proof. Id. lb. 294 EXECtrrioNs. [char Trial of right of property. specified d&y, and the property, with or without a deliveiy bond, is left with the defendant for his convenience, and an unreasonable time, another execution levied while such stay exists, will obtain a preference. The levy may remain good as between the judgment creditor who grants the stay and the judgment debtor, and the force and effect of the levy, as against other execution creditors, may be restored by a countermand of the stay; but not a^i a levy has been made upon the goods by another execution." Delay to sell, owing to the mere negligence or indulgence of the ofiScer to proceed to sell, without any act or consent of the plaintiff, will not render the levy fraudulent as to subsequent executions. But if there has been not only delay, but unreasonable delay, at the instance and by the authority of the plaintiff — unreasonable in view of the rights of other creditors, the character and condition of the property levied upon, and the uses to which it is in the meantime applied — it will have the effect of postponing such levy to one made upon a subsequent execution.* Thus, where an exe- cution was levied upon a stallion, the horse left with the judgment debtor, a return made " not sold for want of time," and no further execution issued for fourteen months afterward, and in the mean- time the judgment debtor was profitably using the horse, it was held that the levy was prima facie fraudulent, as against a levy made by another execution ten months after the first levy.* No question of delay can be made, if from the nature of the property or its situation it require such delay. If proper either to prevent a sacrifice or from other reasonable "cause, it will not operate to impair the levy. Thus, if hides are in vats, undergo- ing the process of tanning when levied upon, the officer may, by the direction of the execution creditor, delay the sale until the hides are in a state to be taken from the vats ; and this will not render the levy dormant or fraudulent, so as to give subsequent execu- tions a preference.* Sec. XIII. Trial op right of property, taken on execution or ATTACHMENT BY A CONSTABLE. If property owned by one person, be levied upon as the property (o) 3 "Wash. C. C. 60; 15 Eng. C. L. Cowp. 432; Salk. 720; 7 Cow, 165; 2 Wend. 419; 4 Ball. (2 310; 2 "Wend. 419. ed.) 159, 169 (note a), 213, 258 ; (d) 14 Ohio St. 18 ; 5 Cowen, 39. 11 Johns. 110; 1 Wils. 44; 8 Serg. & B. 505 ; 3 Bawle, 341 ; XXV.] EXECUTIONS. 295 Trial of right of property. of another, the owner may either sue the officer, or he may follow the property and sue the purchaser, or he may proceed under the statute and have a trial of his claim, in the manner hereinafter mentioned. This trial of his claim, however, does not preclude Lira fi'om afterward suing the purchaser; indeed, the oiily object of the proceeding is to protect the constable from liability either 10 the claimant or the judgment creditor, for pursuing the course pointed out for him by the decision of the justice. The statute provides,' that when a constable levies on or attaches property, claimed by any person or persons other than the party against whom the execution or attachment issued, the claimant or claimants must give three day's notice, in writing, to the plaintiff or his agent, or if not found within the county, then such notice must be served by leaving a copy thereof at his usual plaoe of abode in such county, of the time and place of the trial of the right to such property. The trial must be had before some justice of the county at least one day prior to the time appointed for the sale of such property. If a trial is protracted to or beyond the day appointed for the sale of the property, the constable may proceed to sell ; but should not do so unless indemnified by the plaintiff to the execution, as hereinafter stated. But, notwithstanding the trial is thus pro- tracted, and such sale made, the justice may proceed with the trial of the claimant's right as if no sale had been made.e The justice, however, must commence the trial at least one day before the day appointed for the "sale, and can not adjourn it over to the day of sale, except for the purpose of finishing the trial.' The proceeding to try the right of the claimant is a summary one, and not triable by a jury, but by the justice.^ Where, how- ever, a justice, by mistake, allowed a jury, it was held, on error, that the party at whose instance such jury was impaneled could not take advantage of the error." If, on the trial, the justice is satisfied from the proof that the property, or any part thereof, belongs to the claimant or claim- ants he will render judgment against the party in whose favor such execution or attachment issued, for the costs, and issue execu- tion therefor, and will also give a written order to the constable who levied on, or who maybe charged with the duty of selling such (f) Kev. Stat., §6573. " (h) Eev. Stat, § 6573. (g) 11 Ohio St. 682. (i) 11 Ohio St. 682. 296 EXECUTIONS. [chap. Trial of right of property. property, directing him to restore the same, or so much thereof aa may have been found to belong to such claimant or claimants." The redelivery of the property to the claimant does not preclude liim from, his action against the constable, to recover damages fcv the seizure and detention.^ If the claimant or claimants fail to establish his or their right to such property, and every part thereof, the justice renders judg- ment against such claimant or claimants for the costs that have accrued on account of such trial, and issues execution therefor ; and the constable is not liable to the claimant or claimants for the property so taken.'' The constable may, if the judgment creditor will indemnify him, disregard the order of the justice, in relation to the right of the claimant, and proceed to sell the property.' And if he sell, not- withstanding the order of the justice to deliver the goods to. the claimant, he will be liable to the suit of the latter; in which suit the constable will not be prevented, by the adjudication of the jus- tice, from contesting the title of the claimant.' The following forms may be used in the proceedings : No. 76.] Form of notice by claimant. To A. B. — Sir: — Tou will take notice that I claim the following property, which has been levied upon as the property of C. D., by C. C, constable, on a certain [execution, or say: attachment, as the case may be,'\ issued by G-. H., j. p., in your favor, to wit : \]iere de- scribe the property.'] A trial will be had of my right to said prop- erty, befol-e Gr. H., j. p., at his office in township, county, on the day of , a. d. 18 — , at o'clock a. m. C. S. Dated, January 15, 18 — . Wo. 77.] Form-of docket entry on trial of right of property. C. S. [the claimant,] ") V. [ No. . A. B. [the creditor.] J January 15, 18 — . Bill of particulars of C. S., filed as follows : I claim the following described property, to wit : [here describe the ( j) 4 Ohio St. 598. sale in such case by the sheriff (k) Kev. Stat., g 6575. under the code, see 12 Ohio St. (1) 11 Ohio, 528; 20 Id. 494. See 465. 8 Cowen, 65 ; 12 Eiig. C. L. (m) Rev. Stat., g 6574. 347; 11 Ohio St. 528. As to XXV.] ' EXECUTIONS. 297 Trial of right of property, and sale notwithstanding. property'] levied upon [or say attached, as the case may be,"] by C. C , constable, by virtue of an execution [or say, attachment] issued by G-. H., J. p. of township, county, against C. D., at the I suit of A. B. [advertised to be sold on the day of , 18 — ,] I and I demand a trial and order for the delivery of said property to i me, having given due notice to said A. B. of the premises, etc. Dated . C. S. January 17, 18 — , 10 o'clock a. m., the parties appeared; the said C. S. produced the said notice, which is' as follows : [here copy the notice.'] I do find that said notice was duly served upon the said A. B., on the day of , a. d. 18 — . Thereupon, trial had; the following witnesses, for the said C. S., sworn and examined, to wit : [here name the witnesses.] The following witnesses for the said A. B., sworn and exam- ined, to wit: [here name them.] Then proceed with the finding and judgment thus, if for the claimant : I am satisfied that the following described property, in said bill of particulars and notice mentioned, belongs to the said C. S., to wit: [one cow, etc.] It is therefore considered by me, that said C. S. recover of said A. B. the costsVherein, taxed at dollars and cents. Order issued and delivered to said C. C. constable, for the restoration of said property to said C. S. If no part of the property be found in the claimant, then proceed with the finding and judgment, thus: I do find that said C. S. failed to establish his right to any part of said property. It is therefore considered by me, that said A. B. recover of said C. S. the costs herein, taxed at dol- lars and cents. JVo. 78.] Form of bond of indemnity to- the constable. Know all men by these presents, that we, A. B., C. S., and E. M , are held and bound unto C. 0. in the sum of five hundred dollars; for the payment of which we jointly and severally bind ourselves. Sealed with our seals, and dated this day of , a. d. 18— Whereas, the said C. 0., as constable of county, by virtue of EXECnTIONS. [chap. Trial of right of property, and saJe notwithstanding. an execution to bim directed, and issued by G. H., justice of the peace in and for the township of , in county, Ohio, on the day of , a. d. 18 — , commanding said constable to col- lect out of the personal property of one 0. D. the sum of [here in- sert the amount as in the execution,'] and said constable hath levied upon the following personal property, which is claimed by one S. C, to wit: [here desribe the property claimed f\ and said claimant procured such proceedings to be duly had under the statute re- lating to the trial of the right of property levied on and attached, that said constable was duly ordered by S. Gr. , a justice of the peace of said township, to restore said property to said plaimant; and whereas, said A. B., notwithstanding the premises, has requested said constable to proceed and sell said property, under said execu- tion, as the property of the said C. D., which said constable has pi-omiscd to do upon being indemnified : Now, the condition of this obligation i s such , that if the said A. B., C. S., and E. JM. shall pay all damages, costs, and exjjenses, which may be sustained by the said C. C, by reason of his detention and , sale of said property as aforesaid, and save the said 0. C. otherwise harmless in the premises, then this obligation to be void ; otherwise to remain in full force. A. B. [seal.] C. S. [seal.] i E. M. [seal.] Upon the bond of indemnity, the officer is in general entitled to recover from the obligors the costs, attorneys' fees, and expenses in defending an action brought against him On account of his proceed- ing under the indemnity, together with the damages ^herein ad- judged against him, although the principal obligor alone has notice of the commencement and pendency of the action against the offi- cer ;' and the judgment recovered against the officer, if the creditor had due notice of the action, and an opportunity to defend against it, is conclusive evidence against the obligors of the amount of dam- ages in the action op the indemnity bond.™ (1) 25 Ohio St. 82. (m) 20 Ohio St. 494. XXV.] EXECUTIONS. 299 Eights, etc., when judgment debtor was not owner of goods, etc. Sec. XIV. Eights and ebmedies of officers and co-sureties WHEN property NOT BELONGING TO THE JUDGMENT DEBTOR HAS BEEN SOLD ON THE EXECUTION. Tho statute provides :" That whenever any person, plaintiff in execution, or his agent, having in good faith ordered a levy of said execution upon property not subject thereto, and the same has been sold and applied on said judgment, and a recovery has been had against him by the owner of such property therefor, the person or persons so recovered against, and having paid the amount so re- covered, may, on motion in said court having control of said judgr ment, upon giving the judgment defendant notice of such motion, have the satisfaction so made from the sale of said property on ex- ecution vacated; and shall be entitled to collect the same for the use of the defendant or defendants named in said execution, in the same manner as if said levy and sale had not been made." Whenever any sheriff, or other officer, having an execution issued to him upon any judgment, shall in good faith have levied the same upon any property, not subject to said execution, and shall have sold the same, and applied the proceeds in satisfaction, or part sat- isfaction, of said judgment, and a recovery shall have been had against him therefor, in any court, of the value of said property, upon having paid said value, said oflScer, on motion before the court having control of said judgment, and it being shown to the court that due notice of said motion has been given to the defendant named in said execution, may have the satisfaction of said judg- ment or decree, so made from the sale of such property, vacated; and execution shall issue for the same, for the use of said officer against whom such recovery has been so had, the same as if such levy and sale had not been made."" Whenever a defendant in any judgment, or the surety or co- sureties of any such defendants, shall, by mistake, have directed any execution issued oh such judgment, to be levied on any prop- erty not liable to such execution, and shall thereby have caused such judgment to be wholly or in part satisfied, and shall have been compelled to pay the owner of such property therefor, he shall be adjudged to have the same rights against any co-defendant in such judgment, and against any co-surety or principal in respect of the debt on which such judgment is founded, as though such ^n) Rev. Stat., § 5412. See 18 Ohio, 1 ; 2 _Ohio iSt. 203 . (m) Kev. Stat., § 5413, 300 EXECUTIONS. [chap. _^_^ ■ Eights, etc., when judgment debtor was not owner of goods, etc. satisfaction had, by duo process of law, been made out of the property of such defendant, surety, or co-surety so directing said levy." The code contains the following provisions : i 5016 Upon affidavit of a defendant before answer, in any action upon contract, or for tlie recovery of personal property, that some third party, without collusion with him, has or makes a claim to the subject of the action, and that he is ready to pay or dispose of the-same, as the court may direct, the court may make an order for the safe-keeping, or for the payment, or deposit in court, or delivery of the subject of the action to' such person as it may di- rect, and an order requiring such third party to appear in a reasonable time, and maintain or relinquish his claim against the defendant. If such tliird party being served with a copy of the order by the sheriff, or such other person as the court may direct, fail to appear, the court may declare him barred of all claim in respect to the subject of the action,, against the defendant therein. If such third party appear, he shall be allowed to make himself defendant in the action, in lieu of the original defendant, who shall be discharged from all lia- bility to either of the other parties in respect to the subject of the action, upon his compliance with the order of the court for the payment, deposit, or delivery thereof. § 5017. An officer, against whom an action is brought t6 recover personal property taken by him on execution, or for the proceeds of such property sold by him, may, upon exhibiting to the court the process under which he acted, with his affidavit that the property was taken or sold by him under such pro- ces?, have the benefit of the provisions of the last section, against the party in whose favor the execution issued. § 5018. In an action against an officer for the recovery of property taken under an execution, the court may, upon application of the defendant, and of the party in whose favor the execution issued, permit the latter to be substituted as the defendant, security for the costs having been given. Cases under the above sections of the code will very seldom arise before justices of the peace, except when property taken on execu- , tion is replevied out of the hands of the constable. Where property levied upon has been taken from the constable by writ of replevin, the plaintiff to the execution and the con- stable may apply to the justice before whom the action against the constable is brought, to have the plaintiff to the execution made defendant to the action of replevin in place of the constable. Upon such application, the justice, after entering the return to tho (a) Eev. Stat., t 5414. XXV.] EXECUTIONS. 301 Death of either party — Advertisement of sale. writ of replevin, will enter upon his docket a memorandum of the proceeding, in substance as follows : July 11, 18 — . The defendant came, and exhibited to me an ex- ecution directed to the defendant as constable, in favor of A. B. against C. D., issued by G. H,, justice of the peace, a copy of which is herewith filed ; and the defendant also made affidavit that, as constable of township, county, he levied upon, and took under said execution, the property for the recovery of which this action of replevin is brought. Thereupon, on application of the said 0. C, constable, and A. B , plaintiff to said execution, it is ordered that A. B. be and is made defendant to this action in the place of said C. 0., the said A. B. and his surety executing the following undertaking for costs. We, A. B., and L. M. (his surety), hereby undertake .and promise the above-named [name of the plaintiff in replevin,'] to pay all cos/-.s that have or may accrue in this the above action. [Signed,] A. B. L. M. Taken by, and signed and acknowledged befoi'e me, and surety approved, this day of , a. d. 18 — . G. H., J. p. Sec. XV. Effect upon the execution op the death of either PARTY to a judgment. An execution can not issue after the decease of either party to the judgment, until revived. If, however, there be a subsisting levy by execution at or before the decease of either party, or both, the oflB,cer can proceed to advertise and sell the property, and an order of sale may bo issued for the sale as if both were living." Sec. XVI. Advertisement and sale op property. Property taken in execution must be advertised for sale at four of the most public places within the township where such property was seized, at least ton days previous to the time appointed for such sale. The sale must be held between the hours of ten o'clock A. M. and four o'clock, p. m. at the house, or on the premises where such property. was taken, or at one of the most public places within the township.? (o) 5 Ohio, 221 1 2 Id. 290; 16 Id. 571. As to revival, see pest. 563; 7 T. E. 20; 1 Bos. & P. Chap. XXVI., sec. 4. (p) Eev. Stat., § 6073. 302 EXECUTIONS. [chap. AdTertisement of sale — The sale. The advertisement may be in the form following : If^o. 79.] Form of advertisement of sale of property on execution.. constable's sale. At or about o'clock a. m., [or p. m., as the case may be,'] on the day of , a. d. 18 — , at , [here state the place of sale,'] in the township of , county of , I shall sell, at public vendue, the following property, to wit : [here copy the inventory of the property, or if there be too many articles to enumerate, describe them in general terms.] Taken as the property of 0. J)., on an exe- cution in favor of A. B. [Date.] C. C, Constable. The sale. — The articles sold must be pointed out to the inspection and examination of bidders ; a general sale of all the property, without any particular designation of the articles, will not pass the title to the purchaser."! The goods must bo sold specifically and not in mass. The sale must be of the same goods that were advertised. The • ofiScer can not substitute other goods and offer them under the same advertisement.' If the oflScer sell more goods than are necessary to pay the judg- ment and costs, he is liable to the execution debtor for the actual value of the goods unauthorizcdly sold.' If a bid is made which must result in an utter sacrifice of the property, (such as a bid of one dollar for a horse worth fifty.) the officer is not bound to strike it off, but may withdraw the article from the sale, and again advertise and sell it. And it has been held that, under such circumstances, the ofiicer may return the article as unsold for want of buyers, even if the plaintiff instructs him otherwise.' Whether he could or could not thus return the article as unsold, he can not, probably, withiiold property from sale, to preserve it from utter sacrifice, more than once ; and it is clear that he will make himself liable, if, to favor the execution debtor, or to prevent a satisfaction of the judgment, he refuses to (q) 14 Johns. 852. (t) 8 Carapb. 521 ; 2 Eng. C. L. 287 ; (r) 14 Ohio, 545. 2 Cowen, 130; 4 Johns. 345. (s) 6 B. & C. 739 1 8 Taunt. 527; 4 Moo. & Scotl, 552. XXV.] IXECTJTIONS. 303 The sale thereon. Strike off property under the pretense that a bid is a sacrifice of the property. He can not bid for himself, nor as agent of aji absent bidder, and the bid must be made at the sale>' He need not take the bid of a minor or of an insolvent or insane person. - A combination between different persons not to bid against each other, and thereby prevent competition, renders void any purchase made by any party to such fraud." This rule, however, is not ap- plicable to a sale made at public auction, in which the owner of property voluntarily puts it up to sale.(l) If, however, the owner or his agent, at an auction, announces oi advertises the sale to be "positive," it is an act of fraud on the part of the vendor, or his agent, to employ by-bidders, to keep up the price for his own benefit." A bidder at a sale at auction, or other public saJe, may, at any time before the article is struck down to him, withdraw his bid ; but when the hammer is down, the sale is complete, and both par- ties are bound by the conti-act.^ If the purchaser refuses to pay for an article which has been struck off to him, the officer may return on his execution that the article was not sold for want of buyers ; for he is not bound to make himself liable, as he would be, by returning an actual sale, and trusting to a recovery, by an action against the purchaser.^ If the purchaser does not pay, the officer may sell the property again, and the first purchaser will be liable for any difl'erence be- tween his bid and the amount for which the article finally sold.^ If, however, instead of so doing, the officer deliver the property without payment, he is liable for the amount bid, although he does not receive it. He should not part with the goods until the money is paid." The officer does not warrant' the title of the execution debtor. But he must act in good faith; therefore, if an officer sell property (u) 1 Hill, 544. (y) 3 Ohio, 449 ; 5 Cowen, 390 ; 1 (v) 2 Ohio, 504 ; 2 McLean, 277. Peters' C. C. 241. t w) 24 Ohio St. 28. (z) 4 Bing. 722; 3 T. R. 148 ; 29 Ohio (x) 3 T. E. 148. St. 29.- (t) 27 Ohio St. 521., (a) 9 Johns. 96. (1) An agreement between two bidders for public work, after one had put in his bid, that they would become partners in the work if the work should be awarded to either, will be valid if there was an absence of all intent to influ- ence the bid of either. But. such agreement, intended to influence bids, is fraud- ulent, and against public policy, and void. 24 Ohio St. 565, 572. 304 .EXECUTIONS. [chap Title acquired by sale on — The return; ■which he knows at the time does not belong to the judgment debtor, and says nothing about it at the sale, he is responsible to the purchaser, who may recover back the purchase money, although paid over to the execution creditor ]^ for, in such case, the oflSccr has been guilty of a fraud. It is provided by statute" that neither the justice of the peace who issued the execution, nor the constable holding the execution, shall purchase, either directly or indirectly, any property sold ou such execution. And that any justice or constable who shall do so, shall forfeit and pay, for every such offense, any sum not ex- ceeding one hundred dollars, nor less than five dollars; to be re- covered by civil action, in the name of the State of Ohio, before any court having jurisdiction thereof, for the use of the township where such offense was committed; and shall moreover be liable to the action of the party injured thereby. Sec. XVII. The title which is acquired by a constable's sale. In general, a sale on execution will confer only the title which the execution debtor had in the goods at the time of the levy. If the judgment was absolutely void upon which the sale was made (as if the judgment was rendered in an action in which the justice had no jurisdiction) ; or if the execution was void, or if the execution was not signed by the justice, or there was no judgment, or if the execution, contained blanks to be filled by another person ;* in all such cases the sale will be void, and the purchaser will take no title whatever under it. But if the judgment is only irregular or erroneous, or the execu- tion irregular, or no levy made until after the return day of the previous execution, or the like, these objections will not affect the title of the purchaser. Sec. XVIII. Or the return of executions, and the forms THEREOF. The statute requires a constable who has levid upon any goods or chattels which remain unsold for want of bidders, or other just cause, to return with the execution a schedule of all such goods and chattels.* The statute further provides that when a constable shall levy on (b) 1 Eng. 0. L.224; 29 Ohio St. 651. (d) Eev. Stat., ? 602. (c) Kev. Stat,, g 6074. (e) Rev. Stat., i 6677. XXV.] EXECUTIONS. 305 Porms of returns. and sell any goods and chattels, he shall make out and annex to his return to the execution, in virtue of which such sale was made, a true inventory of all such property, and of each article thereof, and the price at which the same was sold. For each and every neglect to return a true and accurate schedule or inventory of prop- city sold, or remaining unsold, for want of bidders or other just cause, and if sold, the price at which the same was sold, each and every constable guilty of such neglect, shall forfeit and pay, on conviction thereof, any sum not exceeding one hundred dollars ; to be recovered by action in the name of the State of Ohio, for the use of the party injured thereby, to be prosecuted before any court having cognizance thereof.' If a constable has been deprived of an opportunity of making a levy within the thirty days, or otherwise prevented from making the whole of the money required by the execution to be collected, he must make return to that effect.^ Executions and orders of sale must be returned within thirty days from the time received.'' The execution is spent after its return day, and the officer can make nO levy and can do no act under it, after that time, except make a return. If a constable suffers thirty days to elapse without making a true return of an execution to the justice, he is liable to the party in whose favor the execution issued.' No. 80.] Forms of returns to executions. 1. When no property is found. January 15, 18 — . Eeceived this writ. The within-namcd 0. D. has no personal property whereof I can collect any part of the amount of this execution. [Or say: Ifo personal property whereon to levy.] C. C, Constable. 2 Return of no property found when the execution is against an exec- utor or administrator. January 15, 18 — . Eeceived this writ. The within-named 0. D. has no personal property which was .(f) Eev. Stat., § 6676. (h) Eev. Stat., g 6663. (g) Eev. Stat., § 6680. (i) Bev. Stat., ? 6668. 306 EXECUTIONS. [chap. Forms of returns. of the within-named F. F., deceased, at the time of his death, in the hands of the said C. D., to be administered, whereof I can collect any part of the amount of this execution. C. C, Constable. 3. When 'part of execution collected. January 15. 18 — - Eeceived this writ. Bj virtue of this writ, levied upon the personal property of the within-na,med C. D., described in the schedule hereunto an- nexed marked A. Advertised same for sale and sold the following articles, to the following named persons, and for the sums annexed to their names : One wagon to G. S. for ?15 00 One horse to L. M. for 30 00 §45 00 The residue of said personal property remains in hand, for want of buyers, and is sufScient in value to satisfy said execu- tion. \0r say, if the fact he so : The said C. D. has no other per- sonal property whereof I can collect the residue of the amount of this execution.] Made by said sale $45 00 Fees: [giveitems"] Retained for fees Balance paid over to February 14, 18—. C. C, Constable. 4. When property not sold for want of buffers. January 15, 18 — - Received this writ. By virtue of this writ levied upon th« property of the within- named C. D., described in the schedule hereto annexed, marked A, [which is of suflScicnt value to satisfy the amount of this ex- ecution ; or say, if the fact be so : The said C. D. has no other per- sonal property whereof I can collect the amount of this execu- tion.] Advertised and offered the said personal property for sale, on the day of , 18 — . The same would not sell, and re- mains in my hands unsold for want of buyers. There was not time to again advertise. Fees : [give items.'] C. C, Constable. XXV.] EXECUTIONS. 307 Porros of returns. 6. Money made from sale. January 15, 18 — . Eeceived this writ. By virtue of this writ levied upon the personal property of the witliin-named 0. D., deseribed in the schedule hereto annexed, marked A. Advertised and sold said property to the persons, and for the several sums named ia said schedule. Made by said sale $250 00 For costS' retained ,J— — Costs in the judgment..., Costs indorsed on exec?ta ■— — Fees: \giveitems\ Increase costs Balance $250 00 C. C, Constable. 6. Form of sekedule amnexed to execution. SCHEDULK A. Schedule of property levied upon, etc., by virtue of the execution herewith, to wit : AETICLBS LEVIED UPON. NAMES OF PUKCHASEKS. On© horse , One set harness. One cow , One old mare, One potash kettle, One wooden clock •:| William Jackson., James Flour..,..., Jacob Beam Not sold for want,of buyers. PRICE SOLD. $30 00 5 00 10 00 $45 00 C. C, Constable. 7. When execution is paid in money. January 15, 18 — . fieceived this writ. February 5, 18 — . Money made by cash from the within- named C. D., being $ For costs retained : [state them as in the preceding form']--. — — Balance Fees : [give items.'] 20 0. C, Constable. 308 EXECUTIONS. [chap. Forms of returns. 8. When property levied on is claimed by a third person. January 15, 18 — . Eeceived this writ. ^ By virtue of this writ I levied upon, and, January 16, 18 — , advertised the personal property of the within- named 0. D., described in the schedule hereunto annexed, marked A, to be sold on the day of , A. D. 18 — ; and January 18, 18 — , in obedience to a written order of Gt. H., j. p., of township, hereunto annexed, I restored the following de- scribed property to C. M., claimant, to wit : [here describe, as in the schedule, the property delivered to the claimant.'] Sold the res- idue of said property to the persons, and at the prices in said schedule set forth. February 1, 18 — . Levied upon the personal property of the said C. D., described in the schedule hereunto annexed, marked B. [Sere state the proceedings as in the previous forms, according to the facts.'] Made by said sale $ For costs retained :% Costs on judgment " indorsed on writ.... Fees: [give items] " of increase Balance C. C, Constable. 9. When goods levied on are replevied. If the goods are replevied from the hands of the constable, the replevin bond will stand in the place of the goods ; and the con- stable will make return pn the execution of the levy, and the seiz- ure under the writ of replevin, thus : June 15, 18 — . Eeceived this writ. By virtue of this writ, June 16, 18 — , levied upon the personal property of the within-named C. D., described in the schedulo hereunto annexed, marked A. June 17, 18 — . The said personal property was seized and- re- plevied at the suit of E. S., as per copy of summons in replevin and replevin bond herewith returned, and made part of this re- turn. Fees : C. C, Constable. Beturn copy of the summons in replevin and copy of replevin bond. XXV.] EXECUTIONS. 309 Forms of returns. 10. When goods sold on an order of sale. VENDI. January 15, 18 — . Eeceived this writ. By virtue of this order, I advertised and sold the property therein described to the persons and for the prices following : AKTI0LE8 SOLD. TO WHOM SOLD. PEIOB. One cow John Abiham ,..$ 5 00 One wooden clock.... lam Cheated 10 00 Made thereby $15 00 Fees : [jS/ive items.'] 0. C, Constable. 11. When a leasehold estate is sold. January 15, 18 — . Received this writ. January 16, 18 — . By virtue of this writ, I levied upon a certain interest of the within-named G. D., in the residue of a certain term of years to come and unexpired, in the following premises, to wit : [here describe the property by metes and bounds, or by the adjacent premises, or in such a manner that the description will show where the premises are anfi their extent^ situate in the town- ship of , in said county of . On the day of , a. d. 18—, I duly advertised said interest and estate to be sold on the day of , a. d. 18 — , [on the premises, or say, at , in said township of , the same being one of the most public places in said township.] And at the said time and place of sale, between the hours of 10 o'clock A. M. and 4 o'clock p. m. of said day, I put up by public vendue and outcry, and struck off and sold to one J^. S. said in- terest and estate for dollars and cents, he being the highest and best bidder therefor. Made [etc., stating amount made and its application as in the pre- ceding forms!] Fees : [^ive lYems.] C. C, Constable. XXV.] EXECTTTIONS. 311 Form of certificate to transcript — Justices and constables' duties, etc. file in the court at any time after judgment, if not then appealed or stayed, a transcript. If in the mean and proper time an appeal or stay is taken, th« justice must certify that fact to the clerk of the court, who is required to make proper entries thereof in the execution book.J Such judgment, if the transcript is filed in term time, has a lieu on the real estate of the judgment debtor from the day of the fil- ing ; if filed in vacation, it has a like lien as against the judgment debtor from the day of filing, but as against other transcripts filed in vacation, and judgments rendered at the next term, it has a lien only from tho first day of the next term.^ Execution may be issued thereon to the sheriff by the clerk of the court, at any time after the transcript is filed, in the same man ner as if the judgment had been taken in court, and the sheriff re- turns the same as other executions; and the sale of real estate is examined and approved as in other cases.'' But the lien will re- main us above mentioned. The justice of the peace must certify on the transcript the amount, if any, paid on such judgment. The costs of the tran- script, filing it, and the entry of the case on the execution docket must be paid by the party filing the same, and not taxed to the other party. JSFo. 82.] Form of certificate to transcript The State of Ohio, township, county, ss. I do hereby certify that the above is a full and true copy from my docket of the proceedings had by and before me, at my oflSce in said township, in the above action. I do further certify that there has been [nothing paid on said judgment; or say, as the case may be, the following payments made on said judgment, to wit: January 15, 18 — ,fifty dollars.] No appeal or stay was taken. Gr. H., Justice of the Peace of the aforesaid township. Sec. XX. Justices and constables' duties and responsibili- ties AS TO MONET COLLECTED. A constable is required to pay over, to the party entitled thereto, all money received by him in his oflSeial capacity, if demand be ( j) Eev. Stat., ? 5S77. (k) Rev. Stat., ?? 5377, 5378, 5379. As to reviving such judgment, see sanje sections. As to priority of such judgment and mort- gage liens, etc., see 31 Ohio St. 273. 312 EXECUTIONS. [chap. Justices and constables' duties and responsibilities as to money collected. made by such party, his agent or attorney, at any time before the constiible returns the writ upon which he received the money; if not paid over by that time, he must pay the same to the justic(!, ■when he returns the writ.' The constable will find it safest to keep a book containing re- ceipts for all moneys paid over, either to parties or justices ; and to also note on every execution the fact that he paid over the money, and to whom, and the amount. If a justice receives money in his oflS.cial capacity, either from a constable or otherwise, and on demand made at his office or resi- dence, he refuses to pay it over, he may be sued on his official bond in the court of common pleas."" If the bond of the justice is prosecuted on account of money col- lected and not paid over by the justice, it must be shown that such money was received by the justice in his official capacity. If a justice collects money simply as the agent of another, he will not be liable for it in his official capacity, and consequentlj' his sureties can not, in such case, be made responsible therefor." All moneys received by a justice from the constable, or otherwise collected by a justice with or without process, and received in his official capacity for the use of any person, must be paid over to the person entitled thereto or his agent on demand, at the office or place of residence of the justice. If the justice neglects or refuses on such demand, he may, on motion in the probate court, and five days' notice thereof in writing, be amerced in the amount of such moneys, with ten per cent, thereon. The amercement has the effect of a judgment, and there is no appeal therefrom." So, too, if a justice refuses or neglects to pay over moneys col- lected in his official capacity when the amount claimed does not exceed one hundred dollars, he may be Sued before any other jus- tice of the peace of the county.? If counterfeit bills, or base coin, are received from the judgment debtor, the constable may amend his return, and therein treat the counterfeit bills, or base coin, as if not received, and the execution as unsatisfied as to the amount of such counterfeit or base money. If he deposits money in bank to his private account, the failure of the bank does not exonerate him.* (1) Eev. Stat., ? 6697. (o) Rev. Stat., g 6700. (in) Kev. Stat., | 579. (p) Eev. Stat., ? 583. (n) Wright, 738. (q) 34 Ohio St. 25. XXV.] EXECUTIONS. 313 On judgments of another justice. Sec. XXI. Executions on juoaMENTs of another justice. . A justice may issue executions on any judgment on the docket of any justice of his township who may be unable to issue such executions in consequence of sickness, absence, or any other cause. I Such executions must be signed by the justice who holds the dockeu I aad issues them.1 The preceding forms are proper in such cases, I substituting only for the words " before me, the undersigned," I the words "before J, J.," (naming the justice who rendered the ) judgment,) and also after reciting the judgment and amount due, add: "The said J. J. is unable to issue execution on said judg- ment, in consequence of" — [here state cause, as "sickness," accord- ing to the facf] (q) Eev. Stat., § 6663. i*14 TRANSCRIPTS ANb ACTIONS THEREON. [cHAP. Transoripts-^ActionB on. CHAPTER XXVI. TRANSCEIPTS— ACTIONS THEREON AND ON DOR- MANT JUDGMENTS. Seo. I. Transcripts. II. Actions on transcripts. III. Judgment dormant on account of no execution having ISSUED. IT. Judgment dormant on account of decease of parties. Sec. I. Transcripts. A justice of the peace, on request, and being paid the lawful fees therefor, must furnish an authenticated transcript of the proceed- ings, containing his judgment or final order, to either of the parties to the same, or to any person interested in procuring such tran- Bcript." He is liable to an action for refusing to do so ; and can not withhold it, because the costs in the suit are unpaid.* In all transcripts given by a justice, the costs of each party must be stated and set forth separately." No. 83] Form of certificate to authenticate a transcript. The State of Ohio, county, township, ss. I do hereby certify that the above is a full and true copy irom my docket, of the proceedings had by and before me, at my office in said township, in the above action. [i)aie.] G. H., j. p. of the aforesaid township, Seo. II. Actions on transcripts.* If a party desires to proceed upon a transcript in another county, he can either bring an action on the transcript, in the town- ship where the defendant resides, or he can file the transcript in the court of common pleas of the county in which the judgment (a) Eev. Stat., § 6717. (b) 1 Ohio, 274. (o) Eev. Stat., 1 1322. (1) As to action and proceedings on transcripts before a probate judge, etc., to examine and garnishee debtors, etc., of judgment debtors, see Eev. Stat., 38 5472-5487. XXVI.] TRANSOEIPTS AND ACTIONS THEREON. 315 Mode of proceeding. was taken, as mentioned in the preceding chapter,* and have exe- cution issued from the court of common pleas, to any county in the .state." As a general rule applicable to actions on judgments, no defense which existed prior to the rendition of the judgment, can be set up by the defendant."^ The merits of the original cause of action, or the grounds upon which the verdict or judgment was rendered, or matters which then existed as a defense, can not be inquired into. Proof of payment, or other defense arising since the rendi- tion of the judgment, are proper subjects of inquiry. If, however, the action is brought for the purpose of obtaining a judgment against a party not served with process in the previous action, he may set up any defense which would have been proper in the original action ; but the party against whom the original judgment was rendered, is precluded from so doing, by the judg- ment against him, as above stated. Sec. III. Judgments dormant on account op no execution HAVING issued. A judgment becomes dormant — that is, no execution can be issued upon it — if no execution has been issued for the period of five years from the time of its renditiou ; or if five years have inter- vened between the date of the last execution and the time of suing out another writ of execution thereon." If the judgment has become thus dormant, it may be revived in the following manner : ' The justice who rendered the judgment, or who would be author- ized to issue executions upon the judgment, were it not dormant, will, on the application of the plaintiff, his agent or attorney, enter on his docket a conditional order, as follows : [M. 84.] May 1, 18 — . Jfo execution having issued upon the above judg- ment for the period of five years, the plaintiff made a motion for an order, as follows : (b) See ante, ,p. 310. (e) Eev. Stat., §§ 6681, 6648 ; 25 Ohio (c) Rev. Stat., ? 5379. Seeante, p. SIO. St. 355. (d) 8 .Johns. 77; 2 Stra. 1034; and (f) Kev. Stat, ^g 6681, 5367. see ante, p. 201. 316 TRANSCRIPTS AND ACTIONS THEREON. [CHAP, Mode of proceeding. Ordered, that the above judgment stand as, and that the same be revived, for the amount now due thereon, being the sum of [here state the total amount of the principal and interest of the judgment'] dollars. Thereupon, I granted and made said order * conditionally; that is, said order will be made absolute on the day of , 18 — , unless cause be then shown, at my office, at 10 o'clock a. m., by the said C. D., against granting the same, and to which time the hearing of said 0. D. is adjourned. On same day delivered a copy of the above to C. C, constable. The copy made out for service on the judgment debtor will be headed thus : No. 85.] Form of order for service. ■ ■ f Judgment on docket of G. H., J. p., rendered January 1, ^^p I 18—, for $204, and costs, $10. Payments. [Here insert dates and amounts of payments."] The following is a copy of the conditional order made by me on the above judgment: [Here copy the above docket entry.] A true copy. [Signed,] Gr. H., J. p., township, county, 0. The service and return must be the same as hereinbefore s di- rected for the service and return of a summons. The following form of docket entry will show the subsequent proceedings : JVb. 86.] Form of docket entries. May 10, 18-r^. The constable returned said copy of conditional order indorsed with the following return : M.ay 1, 18 — . Eeceived this order. May 2, 18 — . Served by delivering a certified copy of this order to the defendant, C. D. C. C, Constable. Fees : [give items.] May 12, 18—, 10 a. m. — The parties appeared, and no sufficient cause being shown to the contrary, the above conditional order is (g) Ante, p. 55. XXVI.] TRANSCRIPTS AND ACTIONS THEREON. 317 Mode of proceeding. by me made absolute, and I do find that there remains due and un- satisfied upon said judgment the sum of \here insert the amount of principal and interest remaining due,"] dollars, principal and inter- est due, when said conditional order was made, and dollars costs, and for which the said judgment is ordered, as aforesaid, to stand revived. As to proceedings to revive a judgment against a non-resident, the statute provides, that when the plaintiff to such dormant judg- ment, his agent or attorney, makes affidavit that the defendant or any of the defendants are non-residents of the county, and that such judgment remains unsatisfied in whole or in part, with a state- ment of the amount owing thereon, a notice may be published for six consecutive weeks in some newspaper printed in the county where the petition is filed (or, if there be no newspaper printed in the county, then in some newspaper printed in this state, of gen- eral circulation in that county), notifying him to appear on a day named therein, not less than five days after the completion of such publication, and show cause why judgment should not be revived against him or them ; and if sufficient cause be not shown to the contrary, the judgment shall stand revived for the amount which the justice shall find to remain due and unsatisfied upon such judg- ment.'' The notice must contain a summary statement of the object of the order, mention the court wherein the oi^der is asked, and notify the party when he is to appear. The notice may be in the form heretofore given. Instead of this notice being published, it may be served person- ally by copy, either within or out of the state. Sec. IV. Judgment dormant on account of decease of parties. It has already been stated that an execution can not issue after the decease of either party to the jiidgment until revived," although if there be a subsisting levy, by execution, at or before the decease, proceedings may be had against the goods levied upon as if the parties to the judgment were living.' The proceedings to revive a judgment where either party has died, are substantially the same as where a judgment has become (h) liev. Stat., §? 6681, 5050, 5367. (i) Ante, p. 301. 318 TRANSCEIPTS AND ACTIONS THEREON. [CHAP. Mode of proceeding. dormant on account of no execution having been issued for five years.j The revival, in case the defendant has died, is seldom resorted to in practice. In such case, a transcript of the judgment, with an aflSdavit of the amount due, is filed with the executor or adminis- trator, and paid like other claims. In Older to revive a judgment when the plaintiff has died, the administrator or executor of the deceased judgment creditor will apply to the justice who would be authorized to issue an execution, were not the judgment dormant, for a conditional order of revival. The justice on such application will make entries on his docket in substance as follows : No. 87.] Form of docket entries to make the executor or administrator of the deceased plaintiff party to the judgment. May 1, 18 — - This day came B. P., executor \^or say, adminis- trator, as the case may be,"] of the estate of the above-named A. B., deceased, and suggested the death of the said A. B. since said judgment was rendered, and said [administrator, or say, executor] made a motion for an order as follows : Ordered, that the above judgment stand and be. revived in the name of said E. F., as [administrator, or say, exeoator] of the said A. B., the plaintiff, deceased, and for the sum now due thereon, to wit : [here state the amount of the principal and interest of the judg- menf] dollars. Thereupon I granted and made said order [proceeding mth the entry as given on page 316, from the asterisk*,to the end."] The copy of the above order, made out for service on the judg- met debtor, will contain a copy of the whole of the above entry, after heading such copy with a description of the judgment as in the preceding form page 316. The service and return of the above mentioned copy will be the same as the service and return of a summons. The docket entry of the proceedings upon and after the return of the service of the copy of the order will be, in substance, the same as already given to revive a dormant judgment.^ ( j) See ante, p. 815. (k) See ante, p. 317.. XXVn.] UNCLAIMED MONEYS, 319 Lists of causes, etc. CHAPTER XXVII. UNCLAIMED MONEYS IN THE HANDS OF A JT^STIOE. Every justice of the peace is required by law," on the first Mon- day of April, in each year, to make out two certified lists of all causes on his docket, civil and criminal, in which money may have been paid and remained in his hands for the period of one year or more, designating to whom the same may be payable, and the amount payable to each ; one of which lists he must, on or before the next succeeding Monday, set up in some conspicuous place in his oflice, and the other in the office of the clerk of the common pleas court of his county. Whenever a justice retires from office, whether by expiration of term without re-election, or resignation, or otherwise, he must, witEin one week after so retiring, make out two like lists, but con- taining all causes in which money may have been paid and re- mained in his hands without reference to the time when the same was received ; one of which he must, within one week thereafter, set up in some conspicuous place in the office of the justice with whom he is required to deposit his civil docket, and the other in the office of the clerk of the court. In case of the death of any justice, his legal representatives must, within one week after quali- fying as such, make and set up like lists, as last above mentioned, in the same places as last above specified. All such moneys, whether fees, costs, debt, damages, or other moneys so specified in the above-mentioned lists, as remain in the hands of the justice or ex-justice, or the legal representatives of either, so advertising the same, must, at the expiration of one year after the time of such advertisement, be paid over by him to the treasurer of the county, and taking duplicate receipts of the treas- urer therefor (a copy of said lists being annexed to such receipts), (a) Eev. Stat., §§ 592, 593. 320 UNCLAIMED MONEYS. [CHAP. Lists of causes, etc. one of which must be retained and preserved, and the other forth- with filed with the auditor of the county. Any person entitled to any of said moneys, will receive an order therefor from the auditor of the county, on the county treasury, upon producing the certificate of the justice or ex-justice by whom the same was paid over, or his successor in office, or upon otherwise satisfactorily showing that he is entitled to the same. Any justice or ex-justice who fails or neglects to make and set up said lists, within the time and at the places above mentioned, is deemed guilty of a misdemeanor, and upon conviction thereof, will be fined in any sum not less than ten nor more than fifty dollars." (a) See Rev. Stat,, J 6977, for a detail of the penalties, etc. PART II. MISCELLANEOUS TITLES OE LAW. FAGK Accord and Satisfaction 323 Aooount-book 326 Acknowledgment of Deeds, etc... 331 Administrators and Executors 333 Agents and Principals 337 Animals 363 Apprentices 376 Arbitration and Award 385 Assignment of Claims, Leases, etc.. 391 Attachment 402 Bailment 437 Banlts and Bankers 483 Bastardy 485 Bill of Lading 461 Bills of Exchange 695 Carriers of Goods 449 Carriers of Passengers 471 Checks and Bankers' Drafts 746 Constables 495 Contempts 505 Contracts — generally 508 Coroner's Inquest 630 Elections 536 Porcible Entry and Detention 540 Frauds and Fraudulent Convey- ances 557 Guaranty 565 Guardian and Ward 587 PAGE Husband and 'Wife 589 Infants 600 Interest and Usury 605 Liens 612 Limitation of Actions 633 Marriages 640 Mortgage of Goods 643 Negligence 653 Parent and Child 667 Partnership — general 669 Partnership — ^limited 683 Payment 689 Promissory Notes and Negotiable Bonds 695 Eeplevin 751 Sales 766 Set-off and Counter-claim 795 Strays and Drifts 803 Sureties 565 Telegraph Companies 481 Tender and Offer 814 Time 823 Trespass upon Lands 827 Trial of Sheriff's Levy 837 Warehousemen and their Ee- ceipts 465 Water-crafts — Actions against 842 Work and Labor 853 XXVm.] ACCORD AND SATISFACTION — COMPROMISE. 323 What it is — ^The consideration for the accord. CHAPTER XXVIII. ACCORD AND SATISFACTIOE"— COMPEOMISE. Sec. I. "What it is. 11. The consideration for the accord. III. The accord must, in general, be executed. IV. Compromise by or with partners, joint debtors, etc. Sec. I. What it is. An accord is an agreement to receive some act or thing in sat- isfaction of a claim or injury. Where such agreement is performed, it is a SATISFACTION of the claim or injury." An accord and satisfaction (in order to be valid and eflfeetual as a defense against an action on the claim or for the injury com- promised, must be founded on a consideration ; and the act to be done must be as certain as other agreements, and executed.'' Sec. II. The consideration for the accord. The payment of a less sum than is duo before a debt is due; or payment of a less sum at another place than is stipulated, in satisfaction of the whole debt ; or the acceptance of security for a part of the debt, in consideration of which the creditor agrees to lose the balance ; or an agreement to receive a part of the debt in money and the j-esidue in specific articles — in all these cases the creditor derives a benefit from the arrangement, and there is there- fore a Hufficient consideration." But where a specific sum is due, the agreement to receive, and the acceptance of a less sum afterward in discharge of the whole, iS not, in general, a satisfaction of the whole, unless a release, under seal, is executed, or there is some consideration for the re- linquishment of the residue, or the part relinquished is merely in- (a) 9 Co. 79; 3 Bla. Com. 15, 16. (c) 20 Ohio, 114; 11 East, 390; 20 (b) Telv. 124; 5 Bast, 230; 6 Co. Johns. 76; 2 T.B. 24; 1 Wend. 43. i. 164. 21 324 ACCOKD AND SATISFACTION — COMPB.OMISB. [CHA». The accord must, in general, be executed. terest on the debt.* The delivery of property, however, in satisfac- tion of a debt although of less value than the amount of the debt, ■will operate as a complete satisfaction. « And so, where the debt •or amount of damages is uncertain, the parties may agree as to the ;amount to be paid, and payment thereof will be a satisfaction.' And where several creditors, with the knowledge of each other, agree, on the faith of each other's undertaking, to give time to, or .accept a composition or per cent, from a debtor in discharge of his 'debts, the agreement will be binding on all the creditors who are parties to it.s But in such cases, and in all cases where a creditor ^agrees to receive a specific sum in discharge of the whole debt, it is safest to take a release under seal. .Seo. III. The accord must, in general, be executed. The rule is generally stated in elementary works, that an agree- ment to do a thing in satisfaction of a debt or injury, is, in gen- eral, no satisfaction, unless the thing to be done has been actually performed ; '' and that part performance and tender of the residue will not, in such case, be a defense to an action for the original •debt or injury.' This rule is doubtlessly correct when there is no consideration for the new agreement, and there is no fresh right of .action upon it; as, where there is an agreement, without consider- .ation, to accept a less sum than the amount of a debt in satisfac- tion of thewhole.J But where the agreement is for the performance of some colla- teral thing, and is upon sufficient consideration, the weight of the ..authorities is, that in such cases a tender of performance is equiva- lent to a satisfaction."^ And if the plaintiff has agreed to accept the promise or note of the defendant in satisfaction of a breach of a 'Contract, or for an injury, the plaintiff has no right to sue upon the 'Original demand, but his remedy is upon such subsequent promise. But if the plaintiff has agreed to accept the performance of a new -pi'omise in satisfaction, there can be no satisfaction without per- ■■formance,' for then performance is made a condition upon which the (d) 20 Ohio, 114 J 17 Johns. 169 j (h) 16 Johns. 86. Yelv. 11, note 1 ; 5 East, 231. (i) 16 Johns. 86; 8 Ohio, 894. (e) Co. Lit. 212, b ; 16 Johns. 186. ( j) See 20 Ohio, 115. (f ) 2 Ohio, 91. (k) 2 Greenl. Ev., sec. 31. ^g) 13 Mass. 424; 5 Johns. 386; 16 (1) 1 Exch. 601. 607 ; 24Vt661, Ves.374; 15 Ohio St. 892. :XXVIII.] ACCORD AND SATISPAOTION— COMPKOMISE. 329 Compromise by or with partners, joint debtors, etc. promise is to become a satisfaction of the pre-existing cause of :action. If a party accepts even the note of a defendant, or of a third person, as satisfaction of a debt or injury, the satisfaction ia com- plete ; for then, it is said, the agreement is not to pay the note, but to execute or deljver a note which is done." 80, the acceptance of a note for forty dollars in satisfaction of a note for sixty, and the simultaneous surrender of the larger note, iis a full discharge thereof." An accord and satisfaction, moving from a stranger or person iliaving no pecuniary interest in the subject-matter, if accepted in -discharge of the debt, constitutes a good defense to an action to •enforce the liability against the debtor." Sec. IV. Compromise bt or with partners, joint debtors, etc. When a partnership is dissolved, by mutual consent or otherwise, any partner may make a separate composition or compromise with any creditor of the partnership ; and which will be an ef- fectual discharge to the debtor who makes the same, but to him only, of all liability to the creditor with whom the same is made, according to the terms thereof? Every such debtor who makes such compromise may take from the creditor with whom he makes the same a note or memorand.um, in writing, exonerating him from all individual liability incurred by reason of his connection with the partnership, and it may be given in evidence by such debtor, in bar of such creditor's right of recovery against him; and if such liability be by judgment in any court of record in this state, then on filing with the clerk of such court the note or memorandum, such clerk must discharge such judgment of record as far as the compromising debtor is con- cerned.'' Such compromise with an individual member of a firm will not discharge the other partners, nor impair the right of the creditor to proceed against the undischarged members of the partnership ; .and such undischarged member may set off any demand against the creditor which could have been set off had the suit been brought (m) 2 Ohio, 91 ; 3 Wend. 65; 15 Ohio (o) 6 Ohio St. 71. St. 392. (p) Eev. Stat., ? 3162. (n) 43 Vt. 439. tq) Eev. Stat., ? 8163. 326 ACCORD AND SATISFACTION — COMPROMISE. [CHAPu Compromise by or with partners, joint debtors, etc. against all the individuals composing the firm ; nor will the com- promise prevent the other members of the firm from availing them- selves of any other proper defense, except that they shall not set up the discharge of one individual as a discharge of the other part- ners, unless it appear that they all were intended to be discharged ;- but the discharge of any such partner will be deemed a payment to the creditor equal to the proportionate interest of the partner discharged in the partnership concern ; nor will such compromise- affect the right of the other partners to call on the member who makes it for his ratable portion of such partnership debt.' The above provisions in reference to partners extends to other- joint debtors, who may, individually, compound or compromise for their joint indebtedness, with the like efifect in reference Uy creditors and~to joint debtors of the individual so compromising, as is above provided in reference to partners." In general, an accord and satisfaction of a trespass or injury by one of two or more joint trespassers or wrong-doers is a complete^ defense to an action against the others.' (r) Eev. Stat., ?? 3164, .3165. 168; 12 East, 317 ; 9 Co. 79, b ,- (s) Kev. Stat., § 3166. , 5 Co. 117, a; 7 Vt. 320. See- (t) 2 Ohio, 90 ; Co. Lit. 232, a; 8 T. E. 16 Johns. 87 ; 5 N. Hamp. ^XIX.] . AOCOUNT-BOOK. 3^7 In what cases admissible In evidence — "What is an account-book. CHAPTER XXIX. ACCOUNT-BOOK. Sec. I. In what oases an account-book is admissible in evidence. II. What is an account-book, and when the charges should BE MADE. III. What are proper subjects op charge in an account-book. IV. Ledger. V. Settlement. Sec. I. In what cases an account-book is admissible in evidence. The parties to actions are, in general, competent witnesses to prove their books of account. Even where the adverse party is the guardian or trustee of either a deaf and dumb or an insane person, or of a child of a deceased person, or is an executor or ad- ministrator, or claims or defends as heir, grantee, assignee, devisee, or legatee of a deceased person, if the claim or defense is fojinded. on a book account, a party may testify that the book is his account- book ; that it is a book of original entries ; that the entries therein were made by himself, a person since deceased, or a disinterested, person non-resident of the county ; whereupon the book will be ■competent evidence ; and such book may be admitted in evidence in' any case, without regard to the parties, upon like proof by any competent witness." Its credibility is of course another question. Where the original account-book was lost, a witness was per- mitted to testify that he had compared the plaintiff's bill of partic- ulars with the entries in the lost book, and found them to corre- spond ;■ and then the plaintiff was permitted to testify to the cor- rectness of the charges in the lost book.^ 0. II. What is an account-book, and when the charges SHOULD BE MADE. By an account-book is meant a register of the daily business of the party. If the party made no entry of his charges at or near the time •of the transaction, his account, made out at a subsequent period, will not be received in evidence. It is essential to the admission of this kind of evidence that the charges in the account-book should be in «uch a state that they may be presumed to have been the daily minutes of the business or transactions of the party.^ Where, tiowever, the party makes a mere temporary memorandum, for the (c) Bev. Stat., 3 5242. (e) 4 Mass. 455 ; 28 Ohio St. 84. (d) 17 Ohio, 156. See ante, p. 167,. 328 ACCOUNT-BOOK. [CHAP, What is an account-book, etc. purpose of being entered on his account-book, and which, after being entered therein, is destroyed, the account-book itself, con- taining the charges transcribed, may be admitted in evidence with the testimony of the party. As, where the plaintiff was a black- smith, and kept a slate in his shop on which he set down his charges 8,8 they accrued, and was in the habit of transcribing the entries ifrom the slate into a book, and after that was done to rub out the charges on the slate and begin anew, it was decided by the court ■that the book might be considered as original, though transcribed" from a slate ; the slate containing merely memoranda, and not in- tended to be permanent.' So, where goods were delivered by a servant during the day,, 'and the entries were made by the master at night or on the fol- lowing morning, from the memorandums made by the servant, it ■was held sufficient.^ But if several intermediate days elapse before they are thus transcribed, the entries are no part of the transaction itself, and. must be rejected.* The charges should be made in such a manner that a third per- son, without the explanation of the party himself, could ascertain from the book the indebtedness and the names of the persons- charged. A stick, therefore, upon which notches are made of the- Bumber of days that one party has worked for another, would not be an account-book. If the account-book contain signs only, which would not show to a stranger an indebtedness and the names of the persons charged, it can not be received to explain or to establish the validity of the- account of a party, however clearly it may have been drawn out for or by him, for the purposes of the suit. The book itself must be a registry of business actually done, and jiot of orders, contracts, or things to be done subsequent to the entry.' Thus, an invoice-book, or a merchant's book of blank checks, with a marginal memorandum of checks issued, is not an liccount-book.J But the time-book of a day -laborer, though kept in a tabular form, is admissible, the entries being made for the ap- parent purpose of charging the person for whom the work was^ done.'' (f) 13 Mass. 427; ll Pick. 189; 6 (i) 5 "Watts, 258. Whart. 189. ( j) Wright, 219; 4 Tates, 341. (g) 9 Serg. & K. 286, (k) 8 Met. 269. (h) 5 Watts, 432. XXVUI.] ACCOTJNT-BOOK. 329 "What are proper subjects of charge — ^The ledger. The form of keeping the book, whether the chargeB are made in. the order in which they occur, yke a journal, or are entered against persons in separate accounts, like a ledger, is not material.' The charges must be specific and particular ; a general charge for professional services, or for work and labor by a mechanic, with- out any specification but that of time, is not suflSciont.™ The prices should be specified. If the account-book apppear manifestly erased and altered in a*, material point, the charges will not be admitted, unless the altera- tion is satisfactorily explained." Sko. III. What are the proper subjects of a charge in an: ACCOTTNT-BOOK — The proper subjects of entries in an account-book are charges for goods sold, and labor and services personally performed. Money, especially if of any considerable amount, is not the proper subject of book-account; still, if in the course of business,, small sums are passing between the parties, these may, with pro- priety, be charged, and may be proved as other items. An indi- vidual, however, might be engaged in a business that would seem to justify such charges." Charges relating to the performance of a special agreement,!" or to the use and occupation of real estate,' or the like, or the settle- ment of accounts,' are not proper subjects of an account-book. Whatever be the nature of the subject, the transaction, to be sus- ceptible of this kind of proof, must have been between the original creditor and debtor, the book not being admissible to establish a collateral fact.= The book of the party can not be received to prove the payment of cash or property to third persons by a written order ; for better proof of such claim, if true (the order itself,) may be had.' Sec. IV. The ledger — If the party keep a ledger, or the account-book has marks which show that the items have been transferred to a ledger, the ledger (1) 13 Mass. 427 ; 8 Met. 269 ; 3 (q) 5 Conn. 493. Halst. 68. (r) 4 Halst. 268. (m) 1 Nott & McO. 130 (s) 1 Dall. 276, 238; 1 Wash. 272; 1 (n) 6 Whart. 106. Nott & MoC.486. (o) 8 Ohio, 496. (t) 4 Mass. 455. (p) 4 Watts & S. 290 ; 28 Ohio St. 84. 330 ACCOUNT-BOOK. [OHAP. Settlement. must also be produced, that the other party may have the advan- tage of any items entered therein to his credit." Seo. V. Settlement — "When there has been a settlement between the parties, it will bo considered as correct until the contrary is proved. A settlement may be impeached and corrected, when there is proof of a mis- take or omission in it, and if the settlement was confined to par- ticular items, of the account, it will, in general, be no evidence whatever, that other items, not stated in it, were also settled.^ If, upon a settlement, a receipt in full of all demands be given, it must be presumed that all demands then and theretofore existing were settled; but such a receipt will not preclude the party who gives it from showing a mistake in the settlement, and recovering what is still honestly due him.'" So, where an item of credit was in dis- pute, and the balance excluding such item, was paid and a receipt therefor given with a verbal understanding that the disputed credit should remain open, such payment and receipt will leave the dis- puted item open to future adjustment or suit.* A release, however, under seal, of all demands, will, in general, effectually shut out every claim existing at the time of its execution. (t) 4 Mass. 456. (w) "Wright, 764, 240. (u) 2 Mass. 569. (x) 13 Ohio St. 168. (v) 11 Wheat. 250; "Wright, 206; 6 Ohio, 287; 4 Id. 334; 13 Ohio St. 168. HLXX."] ACKNOWLEDGMENT OF INSTRUMENTS, ETC. 331 Forma of acknowledgment. CHAPTER XXX. ACKNOWLEDGMENT OF INSTRUMENTS AFFECT- ING REAL ESTATE. It is necessary to insert here only the forms of acknowledgments of deeds, mortgages, and other instruments of writing. The acknowledgment must be written on the same sheet oa which the deed, mortgage, or other instrument of writing may be printed or written." Form of acknowledgment of a deed, etc., by husband and wife. The State of Ohio, county, ss. Before me, G. H., a justice of the peace in and for said county, personally appeared the within [or above] named J. G., and M., his wife, and acknowledged the signing and sealing of the within [or above] conveyance [or power of attorney, or mortgage, or lease, or instrument,] to be their voluntary act and deed ; and the said M., being at the same time examined by me, separate and apart from her husband, and the contents of said instrument made known to her by me, she then declared that she did voluntarily sign, seal, ^nd acknowledge the same, and that she is still satisfied therewith ; this day of , A. D. 18 — . G. H., J. P. Form of acknowledgment of a deed, etc., by a single person. The State of Ohio, county, ss. Before me, G. BE., a justice of the peace in and for said county, personally appeared the within [or above] named J. G., and ac- knowledged the signing and sealing of the within [or above] con- veyance [or power of attorney, or mortgage, or lease, or instrument,] 4o be his voluntary act and deed ; this day of , A. d. 18 — . G. H., J. p. (a) Kev. Stat., § 4106. 332 ACKNOWLEDGMENT OF INSTRUMENTS, ETC. [CHAP> Forms of acknowledgment. Form of acknowledgment of a deed^etc, by an attorney. The State of Ohio, county, ss. Before me, Gr. H., a justice of the peace in and for said county, appeared the within-named [here insert the name of the principal^ by his attorney in fact within named, J. A., and acknowledged the signing and sealing of the within conveyance [or instrument] to be his voluntary act and deed, and the voluntary act and deed of the said J. A. as said attorney, this day of , A. D. 18 — - G. H., J. p. No. ] Form of acknowledgment of a deed by a corporation.^ The State of Ohio, county, ss. Before me, G. H., a justice of the peace in and for said county,, personally appeared the within-named [here insert the name of the officer who executes the deed in behalf of the corporation, and describe his official character, as thus: Matthew Green, president of the- Columbus and Hocking Yalley Eailroad Company,] and acknowl- edged the signing and ensealing with the corporate seal of said company of the within conveyance to be his voluntary of&cial act and deed as [president] of said company, and the voluntary cor- porate act and deed of said company. In witness whereof [etc.] G. H., J. p. (a) Kev. Stat., § 3410. XXXI.] ADMINISTRATORS AND EXECUTOR^. 533: Appointment of appraisers. CHAPTER XXXI. ADMINISTRATOKS AND EXEOUTOES. 0. 1. Appointment of appraisers. II. Affidavit to authenticate a claim. ni. Actions by and against, appeal, and arbitration of CLAIMS. Sec. I. Appointment of appraisers. When any person appointed by any court as an appraiser of the' lands of any deceased person dies, removes from the county, or in any other manner becomes disabled from acting as such appraiser, any justice of the peace in the county where such lands may be situate, may fill such vacancy.* The appointment may be made by issuing an order in the form following : Appointment of appraisers of real estate. The State of Ohio, county, ss. To A. B. : You are hereby appointed one of the appraisers of the lands of D. D., late of said county, deceased, in the place of L. M.., wha [has removed from the county, or say, who has died, or other reason^ Mcording to the fact.'] You will deliver this order to the [adminis- trator, or say executor, as the case may be,"] of said decedent's estate. Given under my hand, this day of , a. d. 18 — . G. H., J. p. If by neglect, sickness, or other cause, any of the appraisers ap- pointed to appraise and make an inventory of the personal estate )f a deceased person, fail to attend to the performance of their iuty, any justice of the peace of the county in which the property ;o be appraised is situate, may appoint others to supply the place (a) Eev. Stat., § 6156. 334 ADMINISTRATORS AND EXEOtfTORS. [CHAP. Authentication of claim. of such delinquent appraisers.'' When appraisers are appointed by a justice, he must make a certificate of the appointment, which must be returned by the executor or administrator with the inven- tory, and must be in substance as follows : Form of appointment of appraisers. The State of Ohio, county, ss. To A. B. and C. D., of the township of , in said county : You are hereby appointed to appraise, on oath, the estate and ■effects of E. P., late of county, deceased. Given under my hand, this day of , 18 — . G. H., Justice of the Peace. For issuing the order and appointing the appraisers, the justice is entitled to a fee of twenty -five cents. Sec. II. Affidavit to authenticate a claim. Besides the proper vouchers to establish a claim against an estate, the executor or administrator may also require, in all cases, the .affidavit of the claimant, in the following form :" The State of Ohio, county, ss. Before me, Gr. H., a justice of the peace in and for said county, personally appeared C. D., above named, who made solemn oath that there is justly due on the above claim the sum of dollars cents, that no payments have been made thereon, and that there are no offsets against the same, to his knowledge. [Signed,] C. D. Sworn to and subscribed before me, this day of ,• a. d. 18 — . G. H., J. p., as above mentioned. Notwithstanding the claim be sworn to, if the administrator or executor doubt its justice, it may be referred to arbitration, in the mode directed by the statute.'^ (b) Eev. Stat., g 6029, 6030. (d) Eev. Stat., i 6098. r purchase on his behalf He is deemed a general agent within I'.e scope of the powers usually conferred upon a mercantile •roker. A special, or particular agent, is one who is authorized to do one ir more special things, and is ilsually confined to one or more par- icular transactions, such as the sale of a tract of land, or to set- le and adjust a certain account, or the like. A del credere agent is 338 AGENTS AND PRINCIPALS. [CHAP- The authority — Its extent. one who, for a higher reward or commission than is usually given on sales, becomes responsible to his principal for the due payment^- by purchasers, of the price of the goods sold. Sec. II. The authoeitt ; its extent. An agent may, in general, be appointed verbally or by parol. . A verbal authority is suflScient to enable an agent to make cpntracts in writing, not under seal, and that, too, even in cases where the contract is not binding upon his principal, unless in writing signed by him.P But an agent can not execute a deed, or contract under seal, so as to bind his principal, unless his power to do so is under seal.i If, however, A., instead of signing his name to a sealed instra- ment, requests B. to do so, and it is done by B., in the presence of A., the signature and seal is, for all legal purposes, that of A.' The authority of an agent may be implied, where the principal has, before sianctioned or acquiesced in like transactions by the agent. And this. presumption of authority frequently arises where the wife, servant, or child, has been permitted, for a considerable time, to transapt a particular business. But proof that such agent was-em ployed for a special purpose, or in some particular iransaxi- tion, will not raise a presumption of general authority, or authority in transactions of a diiBferent kind ; and where the belief of au- thority arises from previous transactions of the agent, persona dealing with him must, at their peril, ascertain the nature and ex- tent of his previous employment. Thus , a master or parent is not responsible on a contract of purchase made by his servant or his child, on his credit, to whom he has always given cash for mak- ing purchases.' The subsequent ratification of the acts of a third person as agent, "by the principal, will confirm and establish the authority of the agent. And, generally, if the principal receive and hold the pro- ceeds or beneficial results of the contract, with knowledge of the material facts, he will not be permitted to deny the authority of the agent; for it is, in effect, a ratification of the contract.' ' So, if the principal does not disavow the acts of his agent as soon as he (p) 8 Pick. 9; 1 Binn. 450; 9 Ves. (r) 5 Gush. 483. 234, 250. (6) 5 Esp. 75 ; 2 M. & W. 181. (q) 14 S. & Kawle, 331; 5 Mass. 11. (t) 9 Pet. 607; 7 Hill, N. T. 128; ft See5Biniiey, 613; Rev. Stat., J 10. Pick. 198. XXXII.] AGENTS AND PRINCIPALS. 339 The authority — Its extent. can after they come to his knowledge, he makes- these acts his own ;" and the principal can not, in general, adopt a part and dis- avow a part of the contract of a person who purports to b^ his agent.^ An action by the owner of goods, to recover their price or value from an agent, who without proper authority has consigned them for sale on commission, and received advances upon them, is prima facie evidence of a ratification of the consignment.'" An authority to sell does not, of itself, carry with it aiithority to Bell on credit, or to barter ; but if there be a usage of trade to sell on credit, then the agent may sell on credit, unless specially in- structed to sell for cash only.* " Full authority to act in the matter " of a debt owing by one on the eve of bankruptcy, authorizes the agent to receive personal property in payment of the debt.'' So, a power to sell carries with it a power to warrant, if the sale is one usually attended with a warranty.^ Therefore, an agent to sell a horse may warrant its soundness.* The usage of the partic- ular trade or business in which the ageni! acts for his principal, is of great importance in determining these questions of implied powers incident to the authority of the agent. When the authority is oral, and is known to the party dealing with the agent, usage may enlarge or restrain the extent of the authority ; but usage can not affect the power where the authority is in writing, and is knowiv as such to the party dealing with the agent;*" In general, if an agent to whom goods are intrusted for a partic- ular purpose, sell the same to a person or in a manner not within the scope of his authority, the principal may disaflSrm the sale and recover the goods of the buyer, unless the principal, by his acts or words, justified the purchaser in believing that the agent had au- thority." A power to accomplish a general specific end, includes the power (u) 8 How. 134; 19 Pick. 300; 6 Ohio, (y) 20 Ohio St. 891. See 32 Id. 514. 222. . (z) 7 Johns. 890; 5 Esp. 72; 6 Hill, (v) 4'T. E.'211; 7 East, 164; 13 N. N. Y. 336; 4 Gilman, 85; 6 Hamp 145; 5 Esp. 77. Iredell, 252. (w) 22 Ohio St. 597. . (a) 2 Campb. 556; 10 Ala. 386; 1 Id. (i) e Johns. 69; 26 Wend. 223; 1 446. Campb. 258 ; 5 Cowen, 473 ; 1 (b) See 1 Pet. 264 ; 7 B. & Cress. 278 j Greenl. 172, 179; 16 Ohio St. 26 Wend. 192. 236. (c) 1 T. R. 12; 5 Bing. 503. 22 340 AGENTS AND PKINCIPAL8. [CHAK The anthority — ^Its extent. to use the ordinary means to accomplish the end.* In determining Avhether an agent has power to do what is not expressly in terma authorized, the purpose which the agent is appointed to accomplisb :must always be regarded. In general, an agent has no authority to execute or indorse bills •of exchange or negotiable notes in the name of the principal, un- iess.express power be given for that purpose, or the nature of the ngency, or the means to accomplish the *nd demanded by the power, require it.» And if the agent is authorized to execute or indorse notes or bills in a particular manner or for a particula;* purpose, he can not depart from the terms or object of the author- ity, and bind his principal by executing or indorsing notes or bills in a different manner or for another purpose.' As between a principal and a third party, who has supposed 'himself to deal with a principal through his agent, the principal is responsible for and bound by the acts of his agent, not only when he has actually created this agency, but when he has, by words or acts, distinctly authorized the third party to believe the person to be his agent. For, if A. leads B. into the mistaken belief that C. is his agent to do a thing, and B. deals with C. about that precise thing as the agent of A., in such case A. is boand as principal, al- Tthough C. had in fact no authority. In other words, he who leads third persons into such a mistake, can not deny the authority of the supposed agent. In deciding a question like this, all the cir- cumstances of the transaction, and particularly, the customary •nsages in relation to such transactions come into consideration. If the directors of a bank or other corporation, either tbrougb inattention or otherwise, suffer its subordinate oflScers to pursue a particular line of conduct for a considerable period, without objec- tion, the corporation is as much bound to those who deal with tho oflScers, in ignorance of their want of authority from the directors, as if the requisite power had been directly conferred.s If a special or particular agent be authorized to do one or more special things, but transacts other business in the name of his prin- cipal, not within the scope of his authority, the principal wUi not (d) 17 Ohio, 466; 20 Ohio St. 891. (f ) 8 Yerg. 107; 9 N. Hamp. 263; 10 mmercial paper — contracts not under seal. Bank of Alexandria." Cashier of the Bank of Columbia : Pay to the order of P. H. Minor, Esq., ten thousand dollars," signed " Wm. Patton," — it was held, upon proof that Wm. Patton was the cashier of the Mechanic's Bank, and authorized to draw the check for the bank, that it was the check of the bank, the name of the principal' appearing on the face of the check, at its commencement." So, a writing thus : " By authority from I. D., I promise to guar- antee," etc., signed, " I. C," is a good execution of a power to guar- antee.' And it has been held, that a note in this form, " We jointly and severally promise," etc., and signed, " I., and P., for G.," is the note of G." So, if an agent duly authorized, make a promissory note thus : " I promise to pay I. C, or order," etc., and sign the note, " A. B.^ agent for C. D. ;"^ or sign it, " Pro. C: D., A. B. ■,"y or sign it, " A. B., for C. D. ;"' or sign it, " For the Providence Hat Manufacturing: Company, A. B.," (the agent,)" in such case it is the note of the principal. So, a note was given by three persons, in the usual form, but the- makers added to their signatures, the words " Trustees of ^aptist Society." They were sued personally, and plead that they were trustees of " The First Baptist Church of the village of Brockport," and as such had authority to give, and gave the note for a debt of the society, due from the corporation, all which the plaintiff knew. The court held that the corporation, and not the defendants, were liable.'' An agent of a manufacturing company bought dye-stuffs for the establishment, without disclosing the name of his principal, and the bill for dyes was made out, " Mr. A. B., agent, bought," etc., and, he drew a bill of exchange on a third person, signing it, " A. B., agent," without naming his principal. It was held that the rnauu- fecturing company could not be made liable on the bill of exchange as drawer, because the name of the principal did not appear on the .bill." On the other hand, where a like agent, under like circum- fltances, gave a negotiable promissory note, in which were th« words, " I promise," etc., " for the Susquehanna Cotton Manufac- (u) 6 Wheat. 326. • (z) 22 Pick. 158. (v) 8 Pick. 56. (a) 12 Mass. 237 ; 15 Johns. 1. (w) 22 Pick. 158. (b) 17 Wend. 40. See 1 Black£ 189. (z) 16 Mass. 461. 'o) 10 Wend. 271; see 1 Cowen, 61S (y) 11 Mass. 87. XXXII.] AGENTS AND PEINOIPAIiS. 345 Liability of principal for wrongful acts of agents. taring Company," and signed it, " A. B., agent," it was held, upon proof of the authority of the agent, and inasmuch as the note dis- •closed the name of the principal, that the note was the instru;aent of the company, and the agent not personally liable thereon.'^ If it does not appear upon the face of the instrument that the party making it acted as agent, he will be held personally re- fiponsible upon it, although the other party knew that he acted as ■agent." It will be observed that the above rules are applicable to com- mercial paper, and have been adopfed for commercial reasons. But in regard to other contracts not under seal, signed by an agent in his own name, with the addition of the word agent thereto, or other indication in the contract that the contract is by an agent, the principal may be made liable thereon, whether his name appears on the paper or not, upon proof that the agent was authorized to make the contract for his principal. In the absence, however, of all indication upon the face of a simple contract that the party fligning it was acting as agent, the agent only will be liable upon it.'' If the terms of a contract obviously show that the agent intended to be personally responsible, as where he engages expressly in his own name to pay or perform the acts, he will be held personally responsible, although he describe himself in the body of the instru- ment, or in his signature, as acting in behalf of other persons. Thus, a contract was entered into by a committee appointed by a town for the building of a bridge, and after describing themselves in the contract as a "committee," the "said committee" agreed to pay the contractor a certain sum, and signed their individual names to the contract, it was held that the members of the com- mittee were personally responsible on the contract.e Seo. III. Wrongful acts, def'aults, and negligence of officers AND SERVANTS. The act of an agent, duly authorized, is deemed the act of his principal; and the principal therefore assumes the relations, ac- quires the rights, and incurs the obligations, which are the proper (d) 15 Johns. 1. (f) 17 Ohio St. 128, 215; 2 Smith's tice to the rest, unless he who receives the notice be their agent." Notice to the principal is, in general, notice to his agent, after » reasonable time has transpired for the principal to communicate' the notice to the agent.? Notice to the president, director, trustee, or other officer of a cor- poration, whose situation and relation to the corporation imply that he has authority to act for the corporation in the particulai matter in regard to which the notice is given, will be deemed notice to the corporation."! Sec. VII. Eevocation of authority. An authority is always revocable, unless it be coupled with an interest, or given for a valuable consideration. Where an agent is clothed with general powers, and the princi- pal revokes the authority, the principal will still be bound, as to third persons dealing with the agent, who have no knowledge, and no sufficient means of knowledge, of the revocation. As to what the principal shall do to make known the revocation of the author- ity of a general agent, depends upon the nature of the employ- ment and usage. Notice is generally given by advertisement in newspapers, and by letters to those theretofore dealing with the agent.'' Where an agreement is entered into on a sufficient consideration, ■whereby an authority is given for the purpose of securing some benefit to the person in whom the authority is vested, such an authority is irrevocable. This is what is usually meant by an authority coupled with an interest.' Therefore, a warrant of attor- (m) 1 Keen, 159; 3 Madd. 84. See Id. 262; 1 Id. 575; 4 Paig^ Story on Agency, see. 140; 4 127; 3Comst.l56; 30 6. St. 647 Wheat. 466; 1 Hoff. Ch. 153; (r) Stra. 506; 12 Mod. 346; 5 T. R. . 13 N. Hamp. 145. 215 ; 4 Munf. 130 ; 5 Binn. 305; (n) 2 Hare, 402; 8 Watts, 489; 3 11 N. Hamp. 997; 12 Q. B Atk.294. 460; 4 Campb. 215. (o) 1 Hill, N. T. 567 ; 7 Id. 427. (s) 8 Wheat. 201 ; 1 Caine's Cases, 1 ; (p) 4 A. & El. 21. 10 Paige, 205. (q) 19 Vt. 410; 2 Hill, N. T. 451; 3 362 AGENTS AND PBINOIPAL?. [CHAf. Kevocation of authority. ney to confess judgment is irrevocable.' And the better rule seems to be, that where a commission merchant or factor advances money on goods left with him to sell, the authority to sell to the extent of i/be advances is not revocable." In case of the lawful revocation of the power by the act of the principal, notice should, in general, be given to the agent ; and all acts done by him in good faith under the power prior to his knowl- edge of the revocation, are binding upon the principal.' The death of the principal operates as a revocation of an agency.^ But not if the agent has an interest in the thing itself, upon which the power is to be exercised. If, however, the agent has an interest only in that which is produced by the exercise of the power, and no interest in the thing itself upon which the power is to be exercised, his authority ceases upon the death of his prin- cipal.^ "Where the power of the agent thus survives. the death of his principal, the authority also survives the death of the agent, and passes to his executor or administrator .^ (t) 1 Salk. 87; 2 Stra. 882; 6 T. E. which does not necessarily re- 368. " quire the execution of a deed (n) 14 Pet. 479; 22 Pick. 40; 12 N. or other instrument in the Hamp. 239; 3 Comst. 87, 62. name of the principal, the See 6 M. & W. 670. acta of the agent are valid and (v) 2 Kent, 644 ; 5 Dana, 513 ; 5 Binn. binding on the representatives 305; 11 N. Hamp. 156. of the principal, done after the (w) See 8 Ohio St. 520 ; 13 Id. 574. death of the principal, and in In the case of Ish v. Crane et ignorance of such death. al., 13 Ohio St. 575, the supreme (x) 8 Wheat. 201 ; 1 Caine's Cases, 1 ; court BO far abrogated the com- 10 Paige, 205; 23 Pick. 330; 7 mon law, as to hold that where Barb. 412 ; 14 Pet. 479. an agent is authorised to trjins- (y) 2 Kent's Com. 643, 707. njot business for the principal XXXIII.] ANIMALS. 363 Wild animals. CHAPTER XXXIII. ANIMALS. Sec. I. Wild animals. II. Dogs. III. As TO OTHER animals AND FENCING. IV. As TO ANIMALS INJURED ON A RAILEOAD. I. Wild animals. Property in a wild animal is not acquired by merely pursaing or hunting it ; the animal must be brought within the power of the pursuer, before the property in the animal vests. If, therefore, another person, in the sight of the pursuer, kill the animal and ap- propriate it to his own use, no action will lie.* But if the pursuer brings the animal within his own control, at the same time mani- •festing his intention to appropriate it to his own use, as if he con- .tinue the pursuit after having mortally wounded the animal, or en- compass it with nets, snares, toils, or otherwise intercept it, so that the animal can not escape, the possession and ownership is deemed complete.'' If, however, after wounding an animal, and continuing •the pursuit until evening, the hunter abandons the pursuit, though his dogs continue the chase, he acquires no property in the animal." A person is entitled to his action for wild geese, or wild turkeys, »] ARBITRATION AND AWARD. 387 Kevocation of reference. ties, and award upon other matters, the award will be void." So, when the award is made after the time, or at a different place from' that agreed upon by the parties, or after the decease of one of the- parties to the submission," it will be void. The award itself must show that the arbitrators met at the time and place specified in the submission, or it will be void.? If, how- ever, no time or place was agreed upon by the parties, then the arbitrators may meet when and where they please. Notice should be given of the time and place of the meeting of the arbitrators to the parties, if the time and place be unknown to them, otherwise the award may be avoided by special action- for that purpose ;i but the objection can not be made in a suit on. the award."^ After the agreement of submission, and at any time before the- award is made, the powers of the arbitrators may be revoked %y either party to the submission." No particular form is necessary to render the revocation effectual ; but it must be according to the submission — that is, under seal, if the submission was under seal^ and it may be by word of mouth, if the submission was by parol.' It seems, however, that when arbitration bonds are executed un- der tbe statute relating to arbitrations, which authorize the award' to be made a rule of the court of common pleas, the parties have no right to revoke the submission after the arbitrators are sworn." If the arbitrators, after a valid revocation, make an award, it will be void.(l) Where the award is so uncertain in its terms that a person un- acquainted with the situation of the parties or the circumstancea can not, from reading the award, ascertain what steps are to be taken to perform it, it will be void. Thus, an award to pay for the stove, without saying what stove, is void for uncertainty.' An award to give good and sufficient security, without defining the (n) 16 East, 58; Willes. 268; Mod. (r) 6 Wend. 516; 8 Pet. U. S. 165. 345. (s) 16 Johns. 285. (0) 3 Doug. 406; 2 B. & Aid. 394. (t) 8 Johns. 125. (p) 3 Ohio, 287. (u) 19 Ohio, 245 ; 1 Ohio, St. 468. (q) 4 Dall. 232 ; 6 Co-wen, 103. (v) 2 Caine, 235 ; 3 Cowen, 70. (1) The party revoking the submission is liable to a suit on the bond or other agreement of submission, in -which the expenses, costs, and charges of the opposite party, about preparing for the trial before the arbitrators, may be re- covered. Back Ab., Arb. and A-ward (B). 25 388 ARBITRATION AND AWARD. "[CHAP. Effect of an award when valid. nature of the security, has been held to be void." When specific articles of property are to be delivered, they must, if possible, be .-60 described, that when a delivery or an offer to deliver is made, it may be known whether the articles are the same that the arbi- trators intended or not. Therefore, an award, directing A. to de- liver up the books, papers, accounts, a small chest, and wearing .apparel, in his possession, belonging to B., is void for uncertainty.* But everything is to be intended in favor of an award; and courts 'Will intend an award to be certain, unless it appears uncertain. Biit an award may sometimes be good in part, and bad in part. "When the part that is void is not so connected with the rest as to •affect the justice of the case, the residue will be good and valid.^ But when the whole is so connected together that the part which is void controls or affects that part which is valid, the vvhole is void. So when arbitrators transcend their authority, their award as to ■matters not submitted to them will be void ; but if that which is void affects not the merits of the submission, the residue will be valid.' An award to settle a controversy in relation either to the posses- iflion of, or title to real estate, is void.' 3. The effect of an avoard when valid. — Parties may agree to sub- mit a specific subject of controversy to arbitration, and-tho award "thereon, although final and conclusive between the parties, will leave all other subjects open to future quarrel and controversy. So they may refer all matters in dispute in a particular cause, and the reference will be confined solely to the matters in dispute in that trial." On a submission to arbitration " of .all matters in difference," the ;award is conclusive on the parties as to all causes of action sub- sisting between them, previously to the submission; but when it can be shown that the subject of a subsequent action was not a .matter in difference at the time of the submission, nor referred by 'the parties to the arbitrators, nor acted upon by them, the award (w) 9 Johns. 43; see 1 Taunt. 554. (z) 1 Wend. 326; 7 Mass. 399. (x) 8 Ohio, 266 ; see 9 Eng. C. L. 62. (ft) Rev. Stat, f 6601. As to bound- ^y) 2 Cowen, 688; 8 Mass. 398; 13 aries see 4 Ohio^ 310. Id. 244. (b) 2 T. B. 645. XXXV.] ARBITRATION AND AWARD. 389 Effect of an award when valid. •will not bar the subsequent action." If parties submit to arbitra- ition " all demands which either has against the other," the award is a conclusive bar to an action for any demand subsisting at the •time of the submission and award, even though the plaintiff show, in a subsequent action iov such demand, that it was by mistake omiltcd to be laid before the arbitrators, and was not considered or ■decided upon by them.^(l) Id general, where a defendant sets up that the cause of action is barred by a submission and award, the defense will be good if it appear that the cause of action came within the scope of the sub- mission, although not presented nor acted upon by the arbitrators.* When, however, such matter is in fact presented and submitted to the arbitrators upon which they do not act, by either allowing at rejecting it, and award only as to other matters, the award will, in general, be wholly inoperative and void.' We have already stated when and how an award made under ithe reference of a suit pending before a justice may be set aside.B If the defendant fails to proceed under the statute, the award, unless void for the reasons heretofore given, will be conclusive, and ■can not be impeached by showing that the arbitrators acted ud- justly or fraudulently. As to other awards obtained by fraud, col- ,(o) 4 T. B. 146, and note; 4 Esp. (e) 15 East, 213; 17 Eng. O. L. 498; 180. but see 5 Mass. 334; 9 Id. 320. •(d) 12 Johns. 311; 15 East, 213; 17 (f) 16 East, 58; 20 Eng. C. L. 483. Eng. C. L. 498 ; 1 Esp. 377. (g) See ante, Chap. XVII., sec. 2. a '. (1) In the case of Wheeler v. Van Houten, 12 Johns. 311, above referred fto, the court say : " "Whatever constituted a demand on one side or the other, was submitted; and if submitted, the cases cited show that the award must b* final. " It would be a very dangerous precedent to allow a party, on a submission so general, ' of all demands which either party had against the other,' intended •to settle everything between them, to lie by and submit only a part of his de- mand, and then institute a suit for the part not brought before the arbitratoTs. The object of the submission was to avoid litigation ; and neither party is at Jiberty to withhold a demand from the cognizance of the arbitrators, on suck^ a submission, and then to sue for it. " It is true, if a person sues upon several distinct causes of action, and sub- mits only a part of them to the jury, he is not precluded from suing again for '«uch distinct cause of action as was not passed upon. In that case, he was not bound, originally, to unite the different causes of action, and therefore shall not be barred; but here he bound himself to the defendant to submit every de- imand, and can not recede from his agreement." 390 ARBITRATION AND AWARD. [CHAK nights of assignee, etc. lasion, or other undue means, the defendant, in an action thereon,. piay set up as a defense, fraud, collusion, or other undue means, ia obtaining the award, and any matter which, in a suit in chancery, would have been good ground for setting aside or canceling the award.i" Before the adoption of the code of civil procedure, awards could not be thus impeached at law, and'in an action on an award, or upon an arbitration bond for not performing an award, the de- fendant could only avail himself in his defense to the action of matters which rendered the award void ; and therefore could not be permitted to go back of the award, and show that it was im- properly obtained. The code of civil procedure, however, allows' these defenses, that could only theretofore be set up on the chan- cery side of the court, to be now set up on the law side. (h) 20 Ohio St. 231. XXXVI.] ASSIGNMENT OF CLAIMS AND LEASES. 391 Definitious — Negotiability of things in action. CHAPTER XXXVI. ASSIGNMENT OF CLAIMS AND LEASES. :Sec. I. Definitions. II. The negotiability of things in action. III. flow things in action mat be assigned. IV. The rights of the assignee, and of the debtor. V. The rights of the assignee against the assignor. VI. Eights of assignee of a debt to the mortgage SECURiTiia. VII. Assignment of a lease. :Sec. I. Definitions. A claim or right to a sum of money, for which an action may be toought, is called a chose, or thing, in action ; and this chose in action may be a-.-boDd, account, or in fact any demand arising on contract, whether payable immediately, or due at a future period, whether in or out of suit. The assignor is the person who transfers or assigns an instrn- onent, claim, or property ; the assignee is the person to whom the assignment is made.(l) -Sec. 11. The negotiability of things in action — Bills of exchange, promissory notes, and bonds, payable to order, (1) It will be observed tbat the terminations ob and ee are often used to •designate the two parties to a transaction. The or has an active, and the ee & passive signification ; thus, the grantor of a deed is the one who does the act of granting; and so the mortgagor in a mortgage, the obligor in a bond, and the covenantor in a sealed contract are the persons who severally do the act of mortgaging, etc. ; and the grantee of a deed, the mortgagee of a mortgage, the obligee of a bond, and the covenantee in a contract under seal are the persons >'to whom the deed, mortgage, bond, or covenant is made. So the vendor of goods is the person who makes the sale, and the vendee is the person to whom the saib is made ; the bailor of goods is the person who lets them to hire, and ' the bailee is the person to whom the goods are hired ; the promisor in a note is the person who makes the promise, etc.. In these cases, and generally, it will be found that the termination or designates the doer, promisor, or giver ; an* ithe termination be the person to or for whom the act is done, or to whom a. promise is made. , i392 ASSIGNMENT OP CLAIMS AND LEASES. [CHAP; How things in action assigned. bearer, or assigns, and for a sum of money certain, were, before the- adoption of the code, the only kind of instruments upon which the assignee or holder could sue in his own name. Other choses in action could be assigned, but the assignment did not give the as- signee the right to sue in his own name. But now, by the provisions of the code," the real party in interest, which includes the assignee of a chose in action, may sue in his own name. This provision of the code in no respect changes the rights of an assignee in respect to the merits of the claim or the defense ; for the code further provides, that in the case of an as- signment of a thing in action, the action of the assignee shall be- without prejudice to any set-off or other defense theretofore al- lowed. " The rights of parties to negotiable bonds, promissory notes or bills of exchange, are not affected by this provision of th& code, and in no way apply to them, if transferred in good faith and- npon good consideration before due.» It will therefore be perceived that the code changes no rights in. regard to choses in action or negotiable instruments, but merely requires the realT party in interest to sue ; and in this respect, only changing the old rule which required an assignee of a chose in ac- tion to sue in the name of the assignor. Sec. III. How things in action mat be assigned. • No particular : form is required for the transfer. Indeed, the- mere delivery of a bond, covenant, note, account, or other claim, for a valuable consideration, is a valid assignment, if such delivery was intended by the parties as a transfer .'' So a deliveiy of a note to receive its amount and apply it to a debt, is an assignment of it.° A judgment may be assigned for a valuable consideration, - either verbally or by writing, without seal,''.or even by a delivery of the execution to the assignee," if such act was intended as an> sssignment. An assignment takes effect when deposited .in the- post-oflSce.' An assignment indorsed on a note, and the note retained by th& assignor until his death, without proof of any sale or contract for the note, vests no interest in the assignee,^ even though the execa- tor or administrator of the assignor afterward deliver the claim (a) Bev. Stat, g 4993. (d) 19 Johns. 342 ; 5 Oreenl. 282. (b) 17 Johns. 284; 13 Mass. 304; 19 (e) 15 Mass. 481 ; 2 Greenl. 147. Johns. 95;. 16 Mass. 481. (f ) 81 Ohio St. 611. (c) 1 Caine, 363; 3 Johns. 71, 72; 12 (g) 2 Ohio, 60. lb. 346; 13 Mass. 804. :p:XXVI.] ASSIGNMENT OP CLAIMS AND LEASES. 393 Biglits of assignee, and of the debtor. to the assignee. But if delivered to the assignee, and then left with the assignor for safe-keeping, the transfer will he complete.* A power of attorney to collect and receive a deht, to the agent'& own use, and in express terms irrevocable, is prima facie an assign- ment- of the deht to the agent, but may be explained by paro evidence ;^ and a power of attorney to receive and discharge a deht, with a clause stating that this is~"an assignment of the game," is an assignment.' An order or draft drawn for the whole of a particular fund, is an assignment of such fund to. the person in whose favor the order or' draft is drawn, and binds it after notice to the person holding the fund.J The assignee may assign to a third person. Where an assignment or transfer of the stock of a corporation is required to be made upon the books of the company, a complete legal title can be acquired by such transfer only; but an equitable title may be acquired by an ordinary assignment not on the transfer- books of the company ; and the company must respect such equity from the time it receives notice of it.* Sec. IV. The rights of an assignee, and of the debtor. The assignee of a chose in action, as has been before stated, can sue upon it in his own name. A bona fide purchaser for value of a chose in action, from one on whom the owner has, by assignment, conferred the apparent abso- lute ownership, when the purchase is made upon the faith of such apparent ownership, obtains a valid title as against the real owner, who is estopped by his own act.i In such case, the owner must look to his assignee for his remedy, if he has any. ' After notice of the assignment, the debtor can not, in general, make any new arrangement with the assignor so as to prejudice the rights of the assignee. Therefore, if the debtor pay the as- signor,™ or procure his release of the debt," after notice of the as- fiignment, it will not affect the rights of the assignee. And in such case, special notice actually given to the debtor need (g) 24 Pick. 261. (k) 1 Ohio St. 298 ; 6 Pick. 324. (h) 4 Pick. 374; 4 Terg. 68. ( 1) 33 Ohio St. 178. (i) 2 Met. 608; 3 Id. 515. (m) 3 Johns. 425. (j) 5 Wheat. 285; 3 Greenl. 346; 4 (n) 13 Mass. 304; 1 Johns. Casea^ Id. 384 ; 1 Pick. 461 ; 1 Wash. 411 ; 11 Johns. 47 ; Wright, 34, C. C. 424. 394 ASSIGNMENT OP CLAIMS AND LEASES. [CHAP. ' Eights of aBsignee, and of the dehtor. not be shown ; but it is enough, if, from the facts aud circumstances it may be fairly presumed that the debtor had positive notice of the assignment ;" and if the assignee give the debtor notice with- out exhibiting the claim, or oifering other evidence, it is sufficient.? The declarations of the assignor, made after the assignment, can not be given in evidence by the debtor so as to prejudice, in any way, the rights of the assignee."! In general, however, the assignee acquires no rights against the debtor, beyond what the assignor had at the time of the assign- ment, and the assignment is taken, burdened with all defenses which existed in favor of the debtor against the assignor.' When cross-demands have existed between persons, under such circum- stances, that if one had brought an action against the other, a counter-claim or set-off could have been set up, neither can be de- prived of the benefit thereof, by the assignment or the death of the other, but the two demands must be deemed compensated, so far as they equal each other.' In the action by the assignee, against the debtor, the latter may also set off any claim which he holds against the assignee by as- signment or otherwise, provided the same be of the kind, etc.-, hereinafter stated.' As against a bona fide assignee there can be no set-off of demands upon the assignor, acquired by the defendant after notice of the assignment." If the debtor have notice of the intended assignment previous thereto, and under circumstances which should require him, in good faith, to make known any defense or counter-claim, and he permits the assignee to take an assignment under the belief that no defense, set-off, or counter-claim exists, the debtor will he thereby precluded from making any defense, or setting up any set-off, etc., which existed previous to the assignment.' So, if an (o) 12 Johns. 343; 9 Id. 64; Wright, (s) Kev. Stat., I 5077. 501; Paine, 525, 629; 14 S. & (t) See title SKT-orF; 1 Wash. C. 0, E. 137. 424; 8 Johns. 152. (p) 8 Greenl. 17. (u) 4 Ohio St. 591 ; 1 Ohio, 38 ; 13 Id. (q) 10 Wend. 675. 174; 27 Ohio St. 355. (r) Eev. Stat., ? 5071 ; 15Vt.258; 10 (v) 16 Mass. 397; 7 Harr. & J. 320. Paige, 369; 7 Pet. 608; 8 Seethe general principle stated. Men. 510. ante, pp. 169-173. XXXVI.] ASSIGNMENT OP CLAIMS AND LEASES. 395 Eights of assignee, and of the dehtor. innocent assignee is induced to take an assignment by the de"btor's promise to pay it, the latter is concluded.''(l) If the person upon whom the claim exists, has before the assign- ment become surety for the assignor, without having paid anything on the surctj'ship, or has any other contingent claim on the as- signor which may or may not, according to future circum- stances, render the assignor liable to him, such mere contingent liability can not, in general, be set ofp in a suit by the assignee.^ Where a bank holds a lien on the shares of a stockholder for the amount of his indebtedness, and its by-laws require transfers of stock to be made upon the books of the company ; and a stock- holder, before becoming indebted to the bank, made an assignment ■of his stock without having it transferred to the assignee upon the books of the company, and notice thereof was given to the cashier •before the debt to the bank was incurred, it was decided by the <;ourt that such equitable assignee of the stock held it discharged from the lien, and was entitled to accruing dividends. ^ If such ■equitable assignee sell and equitably assign the stock to a second as- signee, the bank can not set up such lien on account of the indebted- ness of the first assignee to the bank, as a ground for refusing to transfer the stock from the original assignor to the second assignee.* Where a company allow interest on the amount paid upon its •fitock, and a stockholder assigns his stock after two years of unpaid interest has accrued, such accrued interest does not follow the stock -as an incident ; and in the absence of any express understanding between the assignor and assignee, such accrued interest belongs -to the assignor.* ,Sec. Y. The rights of the assignee against the assignor. If the assignor falsely and knowingly misrepresents the pecuni- :iiry circumstances of the debtor, and thus actually deceives the assignee, ho may immediately return the claim and sue the as- (w) 2 Teates, 541 ; 6 Litt. 469 ; 19 the assignment, see 8 Ala. N". S. Johns. 49; 14 Serg. & E. 304; 266; 8 Dana, 164; 1 Dev. Eq. 16 Id. 18 ; 12 Mass. 284. 151 ; 4 Ohio St. 591. (x) 4 Ohio St. 586 ; 6 Ohio, 35. (y) 1 Ohio St. 298. Whether such set-off would, in (z) 12 Ind. 194 ; contra, 24 N. Y. equity, be allowed in case of 283. suretyship where the assignor (a) 6 Ohio St. 489. was insolvent at the time of (1) As to an assignee in bad faith procuring the debtor's assurance ot uia in- utention to pay, etc., see ante, p. 172. 386 ASSIGNMENT OP CLAIMS AND LEASES. £0HAP Bights of the assignee against the assignor. signer for the goods or debt for which the claim was assigned.* Such a fraud so far puts an end to the contract, that the assignee ■will have the above-mentioned remedy, even if he expressly agreed' totake the claim at his own risk." So, the assignee has the same remedy, if the assignor knew the claim to be unfounded, and con pealed it from the assignee.* When there is an understanding between the assignor and as- signee as to the risk of the insolvency of the debtor, and there ha» been no fraud nor misrepresentation, such agreement will control the rights of the parties. It is not unusual, however, for persons to make an arrangement in relation to the transfer of a claim, and hand the same over, without indorsement, and without any express understanding as to who shall bear the loss in case the claim is not paid by the debtor. In such cases, where nothing is said about the risk by either party, if the assignment was made in exchange for property, it will be presumed, in the absence of all proof to the contrary, that the assignee took the claim at his own risk ; but if assigned to apply to a prior existing debt, the presumption will be otherwise, and the assignee may sue for the prior debt.° This implied agreement, however, as has already been said, is, like all others, liable to be controlled bj' the contract of fch« par- ties. Thus, if I hold the note of A., and am indebted to you, and you receive my claim against A. in discharge and payment of my debt to you — if this be fairly done, and I do not indorse the not» of A., my debt will be paid, and you can only look to A.' If the assignor, when ho transfers a claim, signs his name in blank, on the instrument, it is presumed, unless the contrary ap- pear by proof, that he intends to be responsible for the payment of the claim. And upon such indorsement the assignee may sue- the assignor for the amount of the claim. When a claim is so assigned as to make the assignor condition- ally liable, either for the original debt upon which the assignment was received, or conditionally liable upon the assignment itself, the assignee will discharge the assignor, if he neglect or delay, to (h) 6 Johns. 110; 5 Id. 73; 15 Id. (e) 11 Johns. 410, 414; 15 Id. 241; 15 475; 1 Esp. Cases, 430; 10 East, 12 ; 1 Salk. 124 ; 8 WencL Mass. 245. 66; 8 Pick. 522; 6 Mass. 322 f (o) 6 Johns. 110. 17 Id. 1 ; 8 Wend. 535. (d) 4 East, 147. (f) 7 Mass. 286. XXXVI.] ASSIGNMENT OP CLAIMS AND LEASES. 397 Eights of assignee of debt to mortgage security. the injury of the assignor, and for an unreasonable time, to demand payment from the person against whom the claim assigned exists.S' Where a person receives a negotiable note before or after it is due as collateral security for an existing debt, he must use ordinary diligence and care in collecting it ; and if any loss should happen to the other party by reason of the want of such care or diligence, the law will cbmpel him to make good the loss. Such cases are not governed by the strict rules of commercial law applicable to nego- tiable paper, but fall under the general law of agency, which must determine the rights and liabilities of the parties, unless there be a. special agreement between them.'' If the claim assigned turn out to be a forgery, the assignor, though ignorant of the fact at the time of the assignment (whether' he agreed to be answerable to the assignee for the payment of the claim or not,) will be liable for the original debt, goods, or money given for the claim. Sec. yi. Eights op assignee op a debt to the mortgage secu- rities. A mortgage of real estate is regarded as a mere security for the- performance of the condition of the mortgage; and where that condition is the payment of a debt, the security is regarded as au incident to the debt, so that the legal transfer of the debt, whether' a note or bond, or negotiable or not, passes the mortgage security to the assignee of the debt, note, or bond. So, too, if several promissory notes are jointly secured by mort- gage, the assignee of one of the notes so secured becomes equitably entitled to a, pro rata participation in the benefit of the security, when all the notes stand upon the same footing as to the time when due, iinlesa the agreement of the parties to the assignment be otherwise.' It is always safest, however, for the assignee of a note or debt secured by mortgage, to take an assignment also of the mortgage- estate and have the same recorded ; for, in a case where the mort- gagee retained the legal interest in the mortgage after he had as- signed the note secured by the mortgage, and subsequently entered satisfaction and a discharge upon the record of the mortgage, it was held that such discharge operated to cancel the record of the (g) 7 Pet. XT. S. 128; 12 Id. 503; 240; 4 Taunt. 288; 6 Maag. (h) 14 Ohio St. 1 ; 2 How. TJ. S. 426; 821. and see post, title Guarantors, (i) 13 Ohio St. 419. sec. 6 ; 2 Johns. 455 ; 15 Id. 398 ASSIGNMENT OF CLAIMS AND LEASES. [CHAP. Eights when lease is assigned. mortgage as against subsequent purchasers and mortgagees in good faith and without notice ; and that as against such bona fide pur- •chasers and mortgagees, having no notice of the assignment of the note, the lien of the assignee of the note was lost.' Different notes or debts secured by the same mortgage are to be paid from the mortgage fund, in the order in which they fall due, although the fund may not be sufficient to pay all in full. Priority of assignment, even though the notes secured by the mortgage were negotiable, will not change this order of appropriation.' Where, however, by the terms of the mortgage, all the notes were to become due on default to pay any one of them, and all the notes but the one first due were assigned together with the mortgage, but with an express exception in such assignment of the interest of the mortgagee in the mortgaged premises resulting from the reser- vation of one of the notes, it was held, as a fair construction of the exception and reservation, that the fund arising from the sale of the mortgaged premises should be distributed ratably, it not being suffi- cient to pay all the notes in full.'' In general, therefore, the note first falling due ia, prima facie, en- titled to be first paid ; and if any fact or circumstance existed which, in equity, would change the presumption, the burden of proving such fact or circumstance rests on the holder of the note last falling due.J Although the mortgage, whether the note or bond is made nego- tiable or not, follows the transfer of the note as a security, yet the mortgage does not partake of the. peculiar characteristics of nego- tiable paper; that is, the mortgagor, although sued on the mortgage by a bona fide holder of a negotiable note secured by the mortgage, iind as such holder entitled to judgment for the amount of the note against the mortgagor as maker, yet the latter may set up any equitable- defenses against the enforcement of the mortgage itself, which defenses, if the note were sued upon, would be precluded on account of such holder being a bona fide indorsee for value and without notice of such equities.' Sec. VII. Assignment of a lease. The time the tenant is allowed by the provisions of a lease to occupy the premises, is called the term of the lease. ( i) 18 Ohio St. 419. (1) 14 Ohio St. 396. Contra: 5 Mich, ( j) 13 Ohio, 240; 11 Ohio St. 616; 38 515 ; 9 "Wis. 503; 3 Chand. 83 j Id. 250. 4 Id. 168. (k) 10 Ohio St. 334. XXXV.] ASSIGNMENT OF CLAIMS AND LEASES. 399' Kights when lease is assigned. The express contract of the leasee or tenant fixes his liability for thewhole term, whether he assigns the lease or not. The liability of the assignee of the terra is limited to the rent accruing during the continuance of his interest. The lessor or landlord may there- fore, at his election, sue either or both for the rent accruing after the assignment." As between the assignor and assignee of a lease, and in the absence of any agreement between them, the assignee is primarily liable while he enjoys the estate ; and the personal liability of the lessee to the landlord can not be got rid of by any^ agreement between the lessee and his assignee unless the landlord', consent. The giving by the lessee of his own notes to the land- lord for the rent, payable at the time and for the amounts stipu- lated in the lease, is not of itself payment of the rent ; nor while held by the landlord does their negotiability (being payable to the- landlord or order) alter the ease. The negotiation of the notes would be an assignment of the rent, and the effect of such assign- ment of the notes would be the same as if an order had been drawn- by the landlord, in favor of the person to whom they were nego- tiated, on the lessee, and accepted by him payable at the time when^ the notes became due.J If, after the assignment of the notes, the landlord should sue the tenant or his assignee for rent, a recovery could not be had unless the landlord produced on the trial for can- cellation the note representing the rent sued for. Where a lease is made of a " dairy farm," with certain cows thereon,- for a term of years for a certain annual rent for the whole (farm and cows,) the use of the cows will be considered as a mere- incident to the farm let, and the rent as substantially issuing from.) the land, and the assignee of the term will be bound for the pay- ment of the whole rent, whether he obtain the term by voluntary assignment or at sheriff's sale.J "Where a part of the unexpired term of a lease is assigned, so that the lessee retains an interest in a part of the term, the landlord< has no claim upon the assignee for rent or the performance of any covenant contained in the lease : such assignee being only a sub- tenant of the lessee.' The unexpired term, and the whole interest in the property demised, must in general be assigned to render the Jissignee liable to the landlord for rent.™ (i) 35 Ohio St. 186; 9 Id. 840; 30 Id. (m) 14 Ohio, 608; 2 Id. 216; 15 Ohio, 569. St. 186. A tenant holding at ( j) is Ohio St. 186 ; 5 B. & C. 289. the will of his landlord has no (1) 2 Ohio, 216; assignable interest. 27 Id. 478. . too ASSIGNMENT OP CLAIMS AND LEASES. [CHAP. Bights when lease \b assigned. The lessee of a perpetual lease is not, in general, discharged from lability for rent accruing after an assignment of his whole interest n the lease, even after acceptance of rent from the assignee, unless he terms of the lease indicate a different liability. Covenants in nch a lease, relating to an appraisement for the purpose of deter- nining the amount of the rent, ran with the estate, and belong to he assignees of the landlord and tenant.(l) As to other covenants than those for the payment of rent, which ■un with the laud, so that the assignee of the term will be liable the lessor or his assignee, the following seem to be the general •ules on the subject : 1. When the covenant of the lessee relates to any erections, or ither thing existing, and. parcel of the premises at the time the ease was made, if the thing to be done by force of the covenant is (1) 31 Ohio St. 468. See 19 Id. 66. Equity enforces an appraisement if ither party, rijfuses to appoint appraisers, or if a majority only of the apprais- rs agree, and either party refuses to appoint new appraisers. The appraise- lent in such case is not, in general, the rental value of the ground, but its real forth at the time it is required to he appraised, excluding all improvements of lie tenant on the premises! 22 Ohio St. 463. In some leases, there is a general provision that the lease shall he forfeited nd end if the lessee omits to pay the rent. In order to show the forfeiture f an unexpired term of a leasehold estate, for non-payment of rent (where, y the terms of the lease, it is provided that if the tenant fails to pay the rent s the same becomes due, the lease shall thereby terminate, and the landlord lay re-enter and take possession), the landlord, in such case, to work a for- :iture, must prove demand of payment when the rent became due. The de- land must, in the absence of any provision relating thereto, appear to have een made for the precise rent due. If the demand he for more or less than lie amount due, it will not be deemed a demand ; and if no place of payment 1 stated in the lease, the demand must be made at the most public and notori- us place on the premises. If a dwelling-house be on the lands, the demand lUst be made at the front door thereof. The absence of the tenant does not ispense with the demand. The demand must be made on the day the rent ills due, at a convenient time before sunset — that is, immediately preceding anset, and n sufficient time for counting and paying the money before sunset, 'he tenant has until and at sunset to pay the money, and the landlord should e at the place during that time to receive the rent. The demand, however, fteen minutes before sunset would be deemed a convenient time before sunset, j; it wc uld gi\e a convenient time before sunset to count the money. IJj Ohip t. 471, and cases there cited. The reason of this strictness is that the landlord 1 endeavoring not merely to collect the rent, but to assert a rie;ht of forfeiture f the lease, and the law will — Portia like— hold him to a strict rule of conduct, n an actiou to recover the rent only, all this strictness is dispensed with. rXXXVI.] ASSIGNMENT OP CLAIMS AND LEASES 461 Eights of the assignee against the assignor. in any manner annexed and appurtpnant to the thing demised, it -will go with the land and bind the assignee, although he be neither 'bound by express words nor named in the lease. 2. When the covenant of the lessee does not relate to any erec- tions or other thing existing, apd parcel of, or annexed, or appur- tenant to the thing demised, but concerns a thing not in being or •existing at the time the demise was made, and would be of no tbeneflt to the lessee or his assignee, the covenant will not, in gen- Before G. H., J. p. of said township and county. C. D., defendant. ) To C. C, constable of said township: You are commanded to attach and safely keep the goods, chat- tels, stocks, or interests in stocks, rights, credits, moneys, and effects of the said defendant, C. D., in your said county, not e.x- empt by law from being applied to the payment of .the claim of (q) 23 Ohio St. 858. (s) Bev. Stat., ? 6492. (r) Rev. Stat, g 6491. XXXVII.] ATTACHMENT. 409 Service and return of the attachment. tlio plaintiff, A. B., or so much thereof as will satisfy his claim foi [Iiere give the amount stated in the affidavW] dollars, and to cove] costs, IJiere insert an amount sufficient to cover costs, not exceeding- fifty'] dollars. You will make due return of this order [forthwith, or if the order is issued with the summons, say"] on the day of , \_inserting the day the summons is returnable,'] a. d. 18 — . Witness my hand, this day of , [inserting the day the order is issued or delicered to the constable,] a. d. 18 — . G. H., J. p. Bbo. V. The seevice and eeturn of the attachment. 1. How property attached, and the inventory and appraisement. — The oiBcer must go to the place where defendant's property may be found, and there, in the presence of two credible persons, de- clare that by virtue of said order, he attaches said property at the suit of such j)laintiflF; and the ofScer, with two householders of the county, who, being first sworn or affirmed by the officer, nfust make a true inventory and appraisement of all the property attached. The inventory and appraisement will be signed by the officer and householders, and returned with the order.' If the property is accessible to the officer, he must take it into Lis custody and hold it, subject to the order of the justtice, unless an undertaking bB given as hei-einafter mentioned.' y The officer, in attaching property, takes upon himself the respon- sibility of seizing only suCh as belongs to the defendant in the at- tachment. Thus, where an officer under an attachment against A. attached book-accounts which belonged to B., and under orders of the court the accounts were collected and paid over to the creditors of A.; it was held that B,, not being a party to the attachment pro- ceedings, could sue the officer and recover the amount collected on the accounts, with interest from the time of collection." The interest of the mortgagor in chattel property of which h« is in possession, after the condition of the mortgage is broken, may be attached ; and such seizure creates a lien in favor of the attach- ing creditor upon the interests of the mortgagor. The subsequent recovery by the mortgagee of the property, in an action of re- plevin against the officer holding the, property under the attach- ment, does not divest such lion ; and the attaching creditor may subject the surplus of the, proceeds remaining, after the satisfaction (t) Eev. Stat., § 6493. ; . ' '^ (u) 20 Ohio St. 57. 410 ATTACHMENT. [(3HAP. Service and return of the uttachment. of the mortgage, to the payment of the judgment in the attach- ment suit, although after the levy of the attachment, and before the attaching creditor commenced proceedings to subject such sur- plus, the mortgagor had executed an assignment to the mortgagee of such surplus/ The property in the hands of a common carrier, consignee, or other person having a prior lien thereon, is not aflfectedJby the at- tachment; and the plaintiif in attachment should adjust such lien before he can require the officer to seize the property ; or the plaintiff in attachment may garnishee the person claiming the lien and having possession of the debtor's property ;" and in gen- eral, if the property is not in the possession of the defendant in attachment, but is held by another person bona fide, having, aS against the defendant, a right to the possession, the oflBcer should not intermeddle by attaching it, unless fully indemnified for so doing, or unless possession is voluntarily abandoned to liim.^ When there are several orders of attachment against the same defendant in the hands of the same officer, they must be executed in the order in 'which they were received by him, as the lien of the attachments will be in the order in which they are servedJ Different attachments of the same property may be made, and one inventory and appraisement will be sufficient. After one attachment inventory and appraisement has been made, subsequent orders of attachment, allowed and issued, are served on the property, as in the hands of the officer serving the first attachment, and subject to prior attachments.'' It will be observed that two or more attachments may be served on the same property. If the property is in the hands of an of- ficer on execution, it can not be attached aS in the hands of such officer and subject to the execution." In such case the officer hold- ing the attachment should make return " no property or effects found." If the plaintiff desires, to proceed against the property levied upon by the execution, he" must garnishee the officer who holds the property." (v) 14 Ohio St. 457. ' readily altered to cover a seiz- ( w) 19 Ohio St. 587. ure hy attachment, (x) The form of a bond of indemnity (y) Rev. Stat., ?§ 6493-6495, 6512. given,, ante, p. 297, can be (z) - Kev. Stat., g 6495.' (a) 19 Ohio St. 587. XXXYII.J ATTACHMENT. 411 Torm of inventory and apprais&m&mt — Redelivery undertaking and its form. Form of inventory and appraisement. An inventory and appraisement of property attached by the un- dersigned C. C, constable of township, county, at the suit of A. B. against C. D., made this day of , 18 — , upon actual view, by said co>nstable, and T. S. and L. H., two household- ers of said county (the said T. S. and L. H. being first duly sworn [or aflBrmed] by said constable), to wit: One sorrel horse^ appraised at forty dollars. One wagon, " fifty- two dollars. C. C, Constable. T. S., March 8, 18—. L, H. 2. Sedelivery undertaking, and its form and effect. — The constable must deliver the property attached to the person in whose posses- sion it was found, upon the execution by such person, in the pres- ence of the constable, of an undertaking to the plaintiff, with one or more sufficient sureties resident in the county, to the effect that the parties to the same are bound in double the appraised value thereof; that the property, or its appraised value in money, shall be forthcoming to answer the judgment of the court in the action ; but if it shall appear to the court tbat any part of said property has been lost or destroyed by unavoidable accident, the 'value thereof must be remitted to the person or persons so bound." Form of redelivery undertaking. A. B., plaintiff, I -Before G. H., J. p. of township, C. D., dSendant. \ '^°»'><^3^' ^^'°- The following property, to wit : [here describe the property'] hav- ing been attached in this action, in the hands of Lewis Thompson, by C. C, constable, on an order issued by said justice, dated March 8, 18 — , and now redelivered to him, we biiid ourselves to the plaintiff, A. B., in the sum of [here insert double the appraised value of the property left,"] double the appraised value of said prop- erty, that the said property, or its appraised value in money, shall be fortbeoming to answer the' judgment of the magistrate in this action. Lewis Thompson, John Brown, Peter Sider, (c) Eev. Stat., ?. 6494. 412 ATTACHMENT. [CHiVP. Motion to dischdrge attachment. Taken and executed in. my presenoe, this day of , a. n. 18—. C. C, Const^ible. The meaning and legal effect of this undertaking is that on the order of sale issued thereafter in the action, the property wiil bd delivered to the constable or its appraised value in money. If not so delivered or paid for, the constable may attach the property ; and the parties interested in the avails of the property to satisfy the judgments in the attachment proceedings, may unit« in an.ac- tion on the undertaking, if the property, or its value, is not forth- coming on demand of the constable.^ Sec. VI. Motion to discharge attachment. The defendant may, at any time before judgment, upon reasona- ble notice to the plaintiff, move to discharge an attachment as to the whole or any part of the property attached. What is a reasonable previous notice of the_ motion must sotiie- times depend upon the fact whether the motion is such that the adverse party may oppo'se it by affidavits or other evidence; in which case, if the notice did not give him sufficient time to prepar* his affidavits or other evidence, the justice, on his application, will adjourn the hearing of the motion to a reasonable time.' If the motion is made upon^ affidavit on the part of the defend- ant, or papers and evidence in the case, but not otherwise, the plaintiff may oppose the same by affidavit, or other evidence, in addition to that upon which the order of attachment was issued.' So, any party to a suit, affected by an order discharging, or re- fusing to discharge, an order of attachment, may file a petition in error in the court of common pleas, to reverse, vacate, or modify the same; and, when necessary, a bill of exceptions may be taken and signed for this purpose. When an order discharging an order of attachment is made by the justice, and any person affected thereby excepts thereto, the justice must fix the number of days, not exceeding ten, in which such party may file his petition in error, during which time the' property attached must be held by the officer, and the petition in errcr must bo filed within the time fixed, and the party filing the petition must give an undertaking to the adverse party, with surety (d) 10 Ohio St. 478. . See section 9 of (e)' Rev. Stat., § 6522 et 5eq."| 84 this chapter. Ohio St. li. (f ) For form of notice, see next page. XXXVII.] ATTACHMENT. ^IS Motion to discharge attachment. ;: i ' — '■ approved by tbe clerk of the, court, in double the amount of the appraised value of the property fettacbed, conditioned to pay the adverse party all damages sustained by him in consequence of the filing of the petition in error, in the event that said order of at- tachment shall be discharged by the court in which said petition iii error is filed. On such undertaking being filed, the clerk must forthwith, through the plaintiff in ,error, give written notice to the justice; and if such notice be ao given, within the time fixed by the justice for the filing of the petition, the justice or officer must continue to hold the property attached, subject to the further order of the court.' Notice, of motion. In the case of attachment of A. B. .v. C. D., pending before G. H., justice of the peace, 1 shall make a motion on the day of , at 10 o'clock A. M., or as soon thereafter as I can be heard, to dis- charge the attachment as to the [whole, or say, the following de- Bcribed property : [describe lY,] and on the following grounds: \_Here state the grounds.'] [Bate.'] C. D. The motion may be founded upon the insufficienej' of the affi- davit of the plaintiff. If this is the only ground, the papers filed in the case will not, in general, be a subject of consideration on this motion ; tior will the jolaintiff in such case be permitted to file new affidavits, or correct or modify the one he has filed, and upon which he procured the attachment, unless the justice give him leave to do 80,s and the justice should, in general, refuse such leave, if by so doing the plaintiff will acquire priority over other attach- ing creditors. The defendant, however, may claim a discharge of the attach- ment, on the ground that the particular fraud and facts stated in the plaintiff's affidavit do not in fact exist, or are untrue. In such case the defendant may read his own. and other affidavits upon those matters, and the files and papers in the case ; and the plaint- iff may oppose the same by affidavits or other evidence i n addi- tion to that upon which the orderof attachment was issued.? Where the grounds for the attachment are stated in the affidavit in the language of the statute, without specifying more particularly the facts or circumstances intended to be alleged, and the defendant denies as directly by affidavit the ground so stated, then the burden of overcoming such denial rests on the plaintiff; that is, the bur- (f) Eev. Stat:; § 6525. (g) 23 Ohio St. 192; Kev. Stat., §5563. 414 - ATTACHMENT; • [CHAP, Motion to discharge altacbtoent — Jovia of docket entry, etc. den of proof ia thrown on him, to show that the ground for issuing the attachment existed,' and if he fails to do so, the attachment should be discharged. It affords no ground for the motion that the defendant does not own the property attached.^ Indeed, the only grounds in general for a discharge of the attach- ment are the two above mentioned, to wit ; 1. Tbat the affidavit is insufficient ; and 2. Tbat the cause stated in the affidavit is untrue. In the first, the motion ia heard s^imply upon the original affidavit without other evidence ; in the second, it is heard upon affidavits and other competent evidence, by witnesses or otherwise, to be produced by the parties. If the justice orders the discharge of the property from the attachment, he will state in the docket the ground for so doing, and render judgment for costs against the plaintiff, unless he is of the opinion that the- costs should abide the decision of the action itself, which may still proceed if the defeiidiamt has been served with the summons. The mere fact that the defendant, or his attorB.©y, eoraes and moves to discharge the attachment proceedings, is not an appear- ance to the action. Filing a bill of particulars of set-off is an ap- pearance.* Fcfrm 0f docket entry on motion to discharge the attachment. May 11, 18 — . The defendant came and made his motion to dis- charge said attachment, and filed the following as the ground and notice of the motion : \here copy the notice^ Due service of the above notice on the plaintiff, a reasonable . time before the time therein mentioned forbearing said motion, was made to my satisfaction. At the time and place mentioned in said notice, the plaintiff appeared before me. \_0r say, the parties appeared ; or say, the defendant failed to appear then or one hour thereafter.] I thereupon heard said motion, and do find (i) 9 Ohio St. 397. (1) 29 Ohio St. 120. 80 Id. 58 (j) 10 Ohio St. 4,39. XXXVII.] ATTACHMENT. 415 Votm (A ofder to the constable. [here affirm or negative the grounds of the motion, stated in the notice, according to the proofs, etc."] Thereupon, 1 overruled said motion [or say, thereupon, I dis- charged Baid attachment, ae to the whole property attached ; or say, as to the following described property attached, to wit], and do order said property so discharged to be returned to the defendant. And it is further considered that the recover of the the costs [in the attachment proceeding; or say, on this motion so over- ruled, according to the finding] taxed. The excepted to the said finding, order, and judgment, and filed his bill of exceptions herein, duly signed by me on said trial, etc., and which is entered herein and made part hereof, as follows : [here enter the bill of exceptions.'] Form of order to the constable. A. B.") V. > In attachment. C. D.j On the — day of — , 18—, on motion and hearing, I discharged the attachment in this case. Tou are therefore ordered to return to the said C. D. the property heretofore by you attached upon the otder of attachment herein. G. H., j. p. Sec. VII. Service of swmmons in the aotION, and publication AND proceedings IP NOT SERVED. If the order of attachment is made to accompany the summons, a copy thereof, and of the summons, must be Served upon the de- fendant in the usual manner for the service of a summons, if the same can be done within the County.' If any property of the defendant has been taken under the order of attachment, and it appear that the summons issued in the action has not been, and can not be served on the defendant in the county, in the manner prescribed by law, the justice of the peace must con- tinue the cause for a period not less than forty nor more than sixty days. Whereupon the plaintiff must proceed, for three consecutive weeks, to publish in some newspaper printed in the county, Or if, none be printed therein, then in some newswaper of general circn- 27 (1) Eev. Stat., § 6496. 416 ATTACHMENT. [CHAP. ^onn of notice for newspaper — Form of affidavit of publication. lation in the county, a notice stating the names of the parties, the time when,!)}? what justice of the peace, and for what sum said order was issued, and must make proof of such public£.tion to the justice." Form of notice for newspaper. ATTACHMENT. A.^B., plaintiff, | ^^^^^^ ^ ^^ ^ p_ ^^ township, C. i), defendant.- ) °°''"*y' ^^^°- On the — — day of , a. d. 18 — , said justice issued an order of attachment in the above action, for the sum of — '— dollars. Columbus,. March 8, 18 — A. B. Publish 3 weeks consecutively.' , The publication may be proved by the aflSdavit of the printer, orchis foreman or principal clerk, or other person knowing the sarae." Form of affidavit of publication. The State of Ohio, county, ss. A. D. makes oath, that he is the printer [or say, foreman ; or say, principal clerk ; or state houi the affiant has knowledge of the fact of publication'] of the [here insert the name of the paper,"] a, newspaper printed in said county ; that the notice, of which the annexed is a true copy, was for three consecutive weeks published in said newspaper, beginning on the day of , a. d. 18 — A. D. Sworn to and subscribed before me, this day of ,.a. d. 18 — . Gr. H., J. p., Franklin county, Ohio. When the cause is continued, as above mentioned, for-the pur- pose of giving time to make publication, and it shall appear that any of the property taken under the attachment is live stock, oris of a perishable nature, the justice may issue his order, directing the officer having the custody thereof, to dispose of the same as upon execution, and the moneys realized therefrom must be paid over to the justice and applied as other money realized from the sale of the property attached is applied." {m) Bev. Stat., | 6490. (o) Kev. Stat., § 6497. (n) Rev. Stat., g 5051. XXXVn.] ATTACHMENT. 417 Live stoek-^Two or more orders. No. 88]. Form of order for sale of live stock. The State of Ohio, township, county, ss. A.^B., plaintiff, | -^^^^^^ ^^ -^^ ^ ^ ^^ ^^^^ township and 0. ix, defendant. ] ^°"°*3'- To 0. C, constable of said township : The above action having been adjourned over, you are hereby commanded to sell and dispose of the following property, attached in the above action, and in your custody as upon execution, to wit; \here describe the property to be sold^ You will make due return of this order, on the day of , A. D. 18 — . Witness my hand, this %th day of March, a. d. 18 — . Gr. H., J. p.', township, county. Sec.-VIII. Proceedings, rights, service, etc.. where two ob more orders op attachment are issued. t^ Each creditor who sues out an order of attachment must bring his action by having a summons issued with his order of attach- ment, unless the order is allowed after summons issued. Each order of attachment and summons must also be served in the man- ner hereinbefore directed. When, however, there are several orders of attachment against the same defendant, in the hands of the same officer, they must be executed in the order in which they were received by the officer ;p and although different attachments of the same property may be made, one inventory and appraisement is sufficient.i Each creditor (if any property is attached under his order of attachment, and the summons issued in his action is not served) must give notice by publication of the issuing of the order, as hereinbefore directed, and make proof thereof, etc. In fine, each action and order of attachment issued against a debtor, is proceeded in substantially alike and independently of each other. Where there are several attaching creditors, a prior one can not make a subsequent one, party defendant to his action against the debtor, with a view of contesting the rights of the creditors as between themselves ; but after each has obtained his j«dgment, and thus fixed his right as against the defendant, then the judgment (p) Rev. Stat., ,g 6493. (q) Rev. Stat., i 6495. 418 ATTACHMENT. [CHAP. Undertaking to diBcharge the property attached, etc. creditors may contest the priorities between themselves.'' However, one attaching creditor may object that the case of the other is one in which the coui-t has no authority under the law to issue an attachment, or that the action is carried on by dishonest collusion or fraud.' The liens of the attachments stand in the order in which the attachments are served — that is, the attachment first served must be first satisfied, and so on, in the order in which the attachments are served ; and as to property once attached, subsequent attach- ments must, as already stated, be served on it as in the hands of the oflRcer, and subject to the prior attachments. The justice who issued the attachment having the priority of lien, determines all questions as to the priority of liens on the property attached.' Where several attachments are executed on the same property, or the same persons are made garnishees, the justice issuing the first order served, on motion of any of the plaintifis, may determine the amounts as well as priorities of the several attachments, and the proceeds shall be applied accordingly." Sec. IX. Undeetaetng to discharge the propehtt ATTAcnsD, AND ITS FORM, AND REMEDIES THEREON. If the defendant, or other person on his behalf, at any time before judgment, cause an undertaking to be executed to the plaintiflf, by one^r more sureties resident in the county, to be approved by the jftstice, in double the amount of the plaintiff's claim, ^ stated in his affidavit, to the effect, that the defendant shall perform the judgmentof the justice, the attachment in such action must be dis- charged, and restitution made of any property taken under it, or the proceeds thereof. Such undertaking also discharges the liability of a garnishee in such action, for any property of the defendant in his hands.^ It will be obsert'ed that the undertaking only operates to dis- charge the attachment in the particular action in w'hich such under- taking is filed. (r) 12 Ohio St. 158 ; 9 Id. 383. (u) Bev. Stat., § 6510. (s) 12 Ohio St. 162, 165. (v) Kev. Stat., i 6618. , (t) Bev. Stat., i 6495. XXXVII.] ATTACHMENT. 419 . — ' — < ji i ' J I ' > Form of undertaking to dJechaige piopertyT-flts effect. Wo. 89.] Form of undertaking to discharge property. A. B., plaintiff, | ^^^^^ ^ ^ ^ ^ ^^ ^ township, — ^ C. D., defendant, j """^"^y- 0^^°' We bind ourselves to the plaintiff, A. B., in the sum. of [here insert double the amount of the plaintiff's claim as stated in his affidavit,'] that the defendant C. D., shall perform the judgmtint of the said magistrate in this action. L. T. Columbus, March 9, 18 — . E. M. L. T. and B. M. approved as sureties. G. H., J. p. The above undertaking, and the redelivery bond, the form of which is given in the fifth section of this chapter, are tQ secure the property or its value to satisfy any judgments which the justice may render in favor of creditors who may have attached the same, either at the time the undertakings were so given or after the execution of such undertakings. And the undertakings being to the first attaching creditors, for the forthcoming of the property or its value, the undertakings inure and pass to the benefit of sub- sequent attaching creditors the same as if the property had re- mained in the hands of the constable to await an order of sale tp satisfy the creditors according to their order of lien." In a suit brought upon the undertaking by the person to whom the undertaking is made and other subsequent attaching/ creditors. some of whom had attached part only of the goods while construct- ively in the hands of the oflScer, it was held : 1. That the parties having an interest as attaching creditors in the proceeds of the goods so attached, might be joined as plafntiffs in an action upon such undertaking, although not named as payees in the undertaking, 2. That the undertaking given to the first attaching creditors, being for the forthcoming of the goods, or their value in money all creditors attaching during the pendency of the actions of the payees of the undertaking acquired an interest Jn the undertaking, for the satisfaction of their judgments. 3. Where part of the prop- erty mentioned in the undertaking had been surrendered to the officer, and from the proceeds thereof, all judgments of the creditors who attached all the property had been fully paid, the same would (w) 10 Ohio St. 478. 420 ATTACHMENT. [CHAP. Trial of claimant's right to property atttaohed — Trial, judgment, and appeal. be in satisfaction of the undertaking ; and, 4. In Bueh case, no judgment can be rendered against the sureties in the undertaking for the value of the goods not so surrendered to satisfy judgment creditors who only attached property surrendered to the officer.^ As the property redelivered or discharged from the attachment i»i still liable to satisfy the judgments in attachment, the statute pro- vides that the justice may order the constable to repossess himself, for the purpose of selling it, of any of the attached property which may have passed out of his hands without having been sold or con- verted into money ; and the constable, under such order, has the same power to take the property as he would have under an order of attachment.^ Sec. X. The trial op claimant's right to property attached. If any of the property which has been attached, be claimed by any person other than the defendant, the claimant may have the validity of such claim tried, and such proceedings must be had thereon, with like effect, as in case the property had been seized on execution issued by the justice, and claimed by a third person.' The mode of proceeding in such case has already been given." Sec. XI. Trial, judgment, and appeal. It has already been stated in the preceding section, that the at- tachment suit must, if the defendant is not served, with the sum- mons, and property has been attached, be continued not less than forty days. This is for the purpose of giving the plaintiff time to publish a notice of the issuing of the attachment. On the day fixed for the trial, unless the defendant then appears to the action, the plaintiff must produce a copy of the notice and proof of publi- cation thereof, which is usually made by the affidavit of the pub- lisher of the paper. Any other proof showing ■prima fade the pub- lication of the notice, as required by law, will be sufficient. The case will then be ready for a hearing, and may be proceeded with in the usual manner. The plaintiff, on the trial, should make out a prima fade claim to authorize judgment in his favor. The judgment is entered in the usual form. (x) 10 Ohio St. 478. (z) Eev. Stat., g 6509. (y) Kev. Stat., 5 6508. (a) See ante, p. 294. XXXVII.] ATTACHMENT. 421 Trial — Judgment — Appeal. If the defendant is served with the summons, then no publication is, necessary. If no property has been attached nor summons served, and the garnishee denies all garnishment liability, the plaintiff may, not- withstanding, bring an action against him as hereinafter stated (post, p. 429), and proceed with the action against the defendant in attachment.* If, however, in such case, the constable has returned that the defendant has real estate, the plaintiff may proceed in the court of common pleas against the real property of the defendant, as here- inafter mentioned in the sixteenth section of this chapter. if judgment be rendered in the action ibr the,defendant, the at- tachment will be discharged, and the property attached, or its proceeds, returned, unless held by other attachments, or the action is appealed.*" Upon judgment being rendered in the action for the defendant, the plaintiff may, within such time as the justice may determine, which must not exceed ten days, appeal the case by giving an ap- peal undertaking. During the, time allowed to file the appeal un- dertaking, the property must not be returned to the defendant. Such appeal undertaking must be in, double the amount of the appraised value of the property attached, and may be in the form following : JVb. 89.] Form of appeal undertaking. A. B.) V. ylo attachment before (x. H., Justice of the Peace. C. D.j Whereas, on the day of , 18 — , in the action of the said A. B. against the said C. D., and with proceedings in attachment before the said G. H., justice, judgment was rendered therein in favor of the said defendant, and for costs taxed dollars cents, and the said plaintiff intends to appeal therefi'om to the court of common pleas of county: Now,' therefore, I, S. S., of , do hereby, pursuant to the statute in such case made and provided, promise and undertake in the sum and to the amount of, [Jiere insert not less than double the amount of the appraised value of the property attached, and if double the amount is less than fifty dol- lars, insert fifty dollars,'] that the said appellant, if judgment be adjudged against him on the appeal, will satisfy such judgment (a) 29 Ohio St. 121 ; 31 Id. 537. (b) Kov. Stat., ? 6506. 422 ATTACHMENT. [CHAP. Order for the sale of attached property, after judgment. and costs ; that said appellant will prosecute his appeal to effect, and without unnecessary delay, and pay said defendant all damages sustained by him, if it shall be found in the court of common pleag that said attachment was wrongfully obtained. [Signed,] 8. S. Executed and acknowledged before me, and surety approved, this day of ,18—. G. H., j. p. If the plaintiff fails to give the appeal undertaking, the property or proceeds must be returned to the defendant or to his agent. If the plaintiff appeals, the appeal is perfected as in other cases; but the property is not returned to the defendant, and the attach- ment will be continued in and determined by the court of common pleas, in the same manner as though the attachment had been issued from that court." If judgment is rendered in the action against the defendant, ho may appeal in the same manner, within "the same time, and by giving the same appeal bond as is required in other civil actions,'' and the attachment is continued and proceeded in the court of common pleas in like manner as upon the appeal of the plaintiff." Sec. XII. Order of sale. It has already been stated that the justice may order the consta- ble to repossess himself, for the purpose of selling it, of any of the attached property, which may have passed out of his hands without having been sold or converted into money; and the con- stable, under such order, has the same power to take the property, as he would have under an order of attachment. Ifo. 90. Order for the sale of attached property after judgment. The State of Ohio, Montgomery township, Pranldin county. A. B., plaintiff, ) V. V Before G. H., J. p. of said township and county. C. D., defendant. ) To. C C, constable of said township : Tou are hereby commanded to sell and dispose of, as upon exe- eiition, the goods and chattels attached by you, upon order of at- tachment issued in the above action, to wit : [here describe the prop- erty.'] [And you are also ordered to repossess yourself, for the purpose of selling it, of any property attached by you in said action or pro- (d) See ante, p. 239. (e) Bev. Stat., § 6506. XXXVlI.] ATTACHMENT, 423 Sale and distribution. ceeding, which may have passed out of your hands without having been sold or converted into money, or of so much of both — Or if this matter in brackets is omitted, in place of it, say : or so much thereof, and then proceed as follows .•] as rtiay be necessary to satisfy, as well the sums of dollars and cents debt, and dollars and cents costs, with interest from the day of , 18 — , (being the amount of the judgment then rendered in said action remaining due and unpaid,) as also incrfeased costs. Make return of this order, and a certificate thereon, showing the manner in which you have executed the same, in thirty days from the time of your receipt hereof. Criven under my hand, this day of , a, d. 18 — . G. H., J. p. of said township and county. Indorse on the order the costs not included in the judgment, etc., as directed ante, p. 229. Sec. XIII. Sale and disteibution. If property has been attached, and judgment is rendered for the plaintiff in the action, and no appeal having b^n taken, it will be satisfied as follows: So much of the property remaining in the hands of the officer- after applying the moneys arising from the sale of perishable prop- erty, and BO much of the personal property, if any, whether held by legal or equitable title, as may be necessary to satisfy the judg- ment, must be sold by order of the justice, under the same restric-- tions and regulations as if the same had been levied upon by exe- cution ; and the money arising therefrom, with the amount which may be recovered from the garnishee, must be applied to satisfy the judgment and costs. If there be not enough to satisfy the same, the judgment will stand good for the balance; and execution may issue thereon in all respects as in other cases. Any surplus of the attach4|id property, or its proceeds, must be returned to tlia defendants The liens of the attachment stand in the order in which the sev- eral orders of attachments wore served on the property; and the justice, whose order was first served, determines the priorities and the amounts.' (f ) See ant0, sec. 8. (g) Eev. Stat., ? 6507. 424 ATTACHMENT. [CHAP. Proceedings against garnishee— The affidavit — Service of process. Sec. XIV. Proceedings against a garnishee. The person who has possession of property belonging to the de- fendant in attachment, or who owes him, is called the garnishee. 1. The affidavit. — The statute provides that when the plaintiflF, his agent or attorney, shall make oath in writing that he has good reason to, and does verily believe, that any person or corporation (to be named), and within the county where the action is brought, has property of the defendant (describing the same) in his posses- sion, proceedings may be had against such person or corporation, if the officer can not come at such property .s The statement above mentioned may be incorporated into the affidavit for an order of attachment, or may be made afterward. The affidavit may be in the form following: Form of affidavit against garnishee for garnishment, after attachment V The said A. B. makes oath* that he has good reason to and does verily believe th'at one G. G. \or if a corporation, designate it by its full corporate natne'], of and within said county of , has prop- erty of the said defendant, C. D., in his possession, liable to be at- tached in this action, not exempt from execution, to wit : [here de- scribe the property ; if wages, describe them with facts, as in forms, ante, p. 406.] A. B. Sworn to and subscribed by said A. B., before me, this day of , A. D. 18—. ' Gr. H., J. p. 2. Sendee of .process upon the garnishee. — ^If the garnishee delivers to the officer the property described in the affidavit, no further pro- ceedings are had against him. If the officer can not "come at" Buch property, he must leave with the garnishee a copy of the or- der of attachment, and a written notice, in substance as follows :'' A. B., plaintiff, | ^^ attachment. Before G. H., J. p. of C. D., defendant. \ township, county. A. B., plaintiff, \ Before G. H., Jus. of the Peace of town- CD., defendant, j ship, — county, Ohio. To.G. G.: — You are hereby notified to appear before said justice, (g) Eev. Stat., § 6498. (h) Kev. Stat., § 6499. (1) As to specinl garnishments on justices' judgments, before a judge or court, see Kev. Stat., ?§ 5464-5487. XXXVII.] ATTACHMENT. 425 Garnishee — His appearance and examination. at his oflSce in said township, on the — — day of , [insert the return day of the attachment,'] at — o'clock A. m. [or p. m., as the ease may be,] and answer, undei* oath, all questions put to you, touch- ing the property, of every description, and credits, of the defend- ant, C. D., in your possession or under your control. township, March 9, 18 — . C. C, Constable. The constable will return a copy of the notice, and annex it to the order of attachment. The copy of the order and notice must be served upon the gar- nishee, as follows: If he be a person, they must be served upon him personally, or left at his usual place of residence ; if a corpo- ration, they must be left with the president, or other head of the same, or the secretary, cashier, or managing agent thereof.' If the garnishees are a firm, and proceeded against in the firm name only, "the service may be by copies left at the oflBce or place of busi- ness of the firm.J 3. Sis appearance and examination. — The garnishee must appear before the justice in accordance with the command of the notice, and must answer, under oath, all questions put to him touching the property, of every description, and credits, of the defendant, in hispossession or under his control; and he must disclose, truly, the amount owing by him to the defendant, whether due or not; and in the case of a corporation, any stock therein hold by, or for the benefit of the defendant, at or after the service of the notice.'^(l) It will be found expedient to reduce to writing the questions to, and answers of, the garnishee, and require him to sign the same. The statute, however, does not require it. (i) Eev. Stat., §6499. (k) Kev; Stat., g 6500. See 21 Ohio (j) 18 Ohio St. 134. St. 221. (1) In 21 Ohio St. 221, it was held that a private corporation holds its corpo- rate property in trust for its stockholders, and that4tock of a non-resident stockholder can be reached in proceedings against the corporation as garnishee. Where such proceedings are instituted before a justice, against a stockholder ■who is a non-resident of the county, if the stock is sold by the constable, the purchaser can not, on refusal of the corporation to issue a certificate to him, sue the corporation for the value of the stock. The remedy of the purchaser, in such case, would be probably a suit in equity in the court of common pleas. A foreign corporation, operating an Ohio railroad, may bo garnisheed. 31 Ohio St. 537. 426 ATTACHMENT. [CHAP. Porm of examination of garniBhee-^PwHieedings against. Form of examination of garnishee. A. B., plaintiff, j ^^^^^.^ ^ -g ^ j^^^ ^^ ^j^^ p^^^.^ ^^ ___ ^^^^^ CD., defendant, 3 ^^'P' county, Ohio. On the day of — — , a. d. 18—, G. &., garnishee in the above action, appeared before said justice, and after being duly sworn, made oath and answered, as such garnishee, as follows : Question hy plaintiff : Are you indebted to the defendant, C. D.? Answer, etc. If the garnishee do not- appear and answer, the. justice may pro- ceed against him by attachment, as for a contempt.' 4. How garnishee discharged. — A garnishee must pay the money he owes the defendant to the constable, or into the court. He is discharged from liability to the defendant for any money so paid, not exceeding the plaintiflf 's claim."' 5. Liability of garnishee. — He is liable to the plaintiff for all prop- erty, moneys, and credits in his hands, or due from him to the de- fendant, from the time he is served with the written notice to ap- pear and answer, and, it seems, from the time the notice was left at his usual place of residence, in his absence.?- Prior liens are not affected by the garnishment. The defendant, but not the garnishee, may show that the property garnisheed is exempt from execution ; but either may show a prior attachment." Partnership demands and credits can not be garnisheed for a separate debt of one of the partners ;° but the goods and chattels of the firm can, in such cases, be attached.? The statute seems to make any debt subject to garnishment which the garnishee actually owed the defendant in attachment at the time the notice was served on the garnishee, or which may exist at the time the garnishee is examined before the justice. Thus, if the defendant is in the employ of the garnishee, hy the month, payable at the end of each month, wages which have been actually earned at the expiration of the month preceding such examination will be deemed assets; but monthly wages for the current month in (1) Eev. Stat., § 6502. See ante, p. (o) 29 Ohio St. 124. 114 (p) See post, p. 682. (m)Kov. Stat., ?. 6501. (n) 25 Ohio St. 320, 347. XXXVii.] A'TTfAcmUMift, 427 Ptoceedings against garnishee. which the garnishee is examiaed, can not be considered as a credit in the hands of the garnishee ; for the current Wages may be wholly forfeited by the employe abandoning the Service before the expira- tion of that month. If the garnishee appear and answer, and it is discovered on his examination that, at or after the service of the order of attachment and notice npon him, ho Was possessed of any property of the defend- ant, or was indebted to him, the justice may order the garnishee to deliver up such property and pay the amount owing by the gar- nishee into the court; or may permit the garnishee, at his option, to retain the prope'rty or the amount owing, upon the execution of an undertaking to the plaintiff, by one or more sufficient sureties, to the effect that the amount shall be paid, or the property forth- coming, as the court may direct." The garnishee is not bound to execute pueh undertaking ; but, if he does, he can, of course, be sued upon it. The statute relating to attachment and garnishment in the court of common pleas is, in general, inapplicable to like proceedings before a justiee.!" Before a justice, the garnisbeb must appear and submit to an examination, and if the justice comes to the conclusion that the statements made by the garnishee amount to an admission of in- debtedness, he may order the sum admitted to be due to be paid into court. But the only mode by which such an order can be enforced, is by. an action against the garnishee. The order of the justice was not intended as a summary remedy for the collec- tion of the debt, but to put the plaintiff in attachment in a posi- tion to sue as plaintiff the garnishee; and in such action the garnishee may contest the construction which the justice put upon the statement made before him by the ganpishee, and the inferences the justice drew that an indebtedness was admitted.? No action can be maintained by the plaintiff in attachment against the garnishee until the debt is due from the garnishee ; and in the suit of an attaching creditor, whatever admissions he made on his ex- amination, may of course be used against him. It is a fundamental principle, that an attaching creditor can stand on no better footing, as against a garnishee, than the defendant in (o) Kev. Stat., 8 6503. (p) 12 Ohio, 858. 428 ATTACHMENT. [CHAP. Proceedings by and against Garnishee. attachment. So, too, bona fide purchasers and assignees of a debt owing by a garnishee retain the rights which they had at the time of the attachment or garnishment. Where, therefore, a claim against a garnishee has been assigned in good faith and for a good consideration, the creditors of the assignor can not avoid or defeat it by garnishment or other similar process.' It sometimes happens that the claim against the garnishee has been assigned by the defendant in attachment, before the attach- ment was issued, and without the knowledge of the garnishee ; so that the garnishee may suppose, when examined, that he owes the claim to the defendant in attachment, when in fact he is not liable to garnishment. In such case, it will be sufficient for the assignee of the claim to give the garnishee notice of the assignment in time to enable him to bring it to the attention of the court before a judgment is rendered against him in favor of the attaching cred- itor.i The garnishee will also be entitled to any set-off or other defense existing at the time he was served with notice as garnishee. The undertaking above mentioned may be in the form following, when it is for the payment of money : 'No. 92.] Form of undertaking by sureties of garnishee for the pay- ment of money. A. B., plaintiff, | ^^^^^^ q. g-^ j^^ ^^ ^.j^^ ^^^^ ^^ ^^^^_ CD., defendant, j ^^'P' '^""'^^y- ^^'°- "We bind ourselves to the plaintiff, A. B.,* that G. G., garnishee in this action, will pay into said justice's court, as and where said justice shall direct, the sum of dollars, being the amount owing by said garnishee. Signed and acknowledged before me, and sureties approved by me, this day of , a. d. 18 — . G. H., J. p. Form of undertaking by sureties of garnishee for delivery of property. Proceed as in the preceding form to the star,* and then as follows : That the following property, in the possession of G. G., garnishee in this action, belonging to the defendant, C. D., shall beforthcom- (q) 22 Ohio St. 898 ; 84 Id. 158. XXXVII.] ATTACHMENT. 429 Proceedings against garnishee. ing, as and where the.' said justice may direct, to wit : \here describe the property.'] ■ ""■ ' Signed and acknowledged,-'[etc.] If the garnishee fail to appear and answer, or if he appear and answer, and his disclosure is not satisfactory to the plaintiff ; or if he fail to comply with the order of the justice to deliver the prop- erty and pay the money owing, into court, or give the undertaking required in the preceding section, the plaintiff may proceed against him in an action, in his own name, as in other cases, and thereupoii such proceedings may b6 had as in other actions, and judgmenl; may be rendered in favor of the plaintiff, for the amount of the property and credits of every kind .of the defendant, in the pos- session of the garnishee, and for whatshall appear to be owing by hrna to the defendant, and for the costs of the proceedings against bim.= If the plaintiff proceed against the garnishee by action, for the cause that his disclosure was unsatisfactory, unless it appear in the action that such disclosure was incomplete, the plaintiff must pay the costs of such action. The judgment in this action may be en- forced as judgments in other cases." When the claims of the, plaintiff in attachment are satisfied, the defendant in attachment may, on motion, be substituted as the plaintiff in the judgment, and the whole collected.' Pinal proceedings can not be had against the garnishee, until the action against the defendant in attachment has been determined ; and if, in such action, judgment be rendered for the defendant in attachment, the garnishee must bo discharged and recover costs. If the plaintiff recover against the defendant in attachment, apd the garnishee deliver up all property, moneys and credits of the defendant in his possession, and pay all the moneys, from him due as the court may order, the garnishee must be discharged, and the costs of the proceedings against him must be paid out of the prop- erty and moneys so surrendered, or as the court may think right and proper.' In regard to interest on such indebtedness of the garnishee, he is not, during the pendency of the attachment proceedings, thereby necessarily exempted from an existing liability to pay interest upon bis indebtedness to the defendant in attachment; and a cause of (s) Kev. Stat., ? 6504 ; 31 Ohio St. 537. (t) Kev. Stat., § 6505. 430 ATTACHMENT. [CIIAP. Eeturn to an order of attachment, ete^-^rorms. exemption in such case will not be presumed in favor of the gar- nishee, but must \)e shown to exist." The statute farther provides, that the garnishee shall not be sub- jected to costs beyond those caused by his resistance of the claim figainst him ; and if he disclose the property in his hands or the true amount owing by him, and deliver or pay the same according to the order of the court, he shall be allowed his costs.'' The assignee of the plaintiff's claim may in his own name bring the suit against the garnishee,'' Si!0, XY. The return to an order of attachment and against GARNISHEE, ETC. The officer must return upon every order of attachment what he hiis done under it. The return must show the property attached, atid the time it was attached. When garnishees are Served, their names, and the time each was served, must be stated. The officer must also return with the order all undertakings given under it.» 1. Form of return — no property attached. March 10, 18 — . Beceived this order. No property or effects found. [^Add, if tAe fact be So .•] The de- fendant is the owner of an interest in certain real estate in said county, notp occupied by E. H. 0. C, Constable. 2. Beturn of property attached, etc, March 10, 1&— . Eeceived this order, [Add, if the fad heio:'\ and afterward, and on the same day, received an order of attach- ment, issued by G. H., 3. P., in the action of M. B. against the Within-named C. D. March 11, 18—. I went to the place where the defendant's prop- erty, described in the annexed inventory and appraisement, was found; and there, at 11 o'clock A. M. of said day, in the presence and hearing of L. S. and T. S., two credible persons, did declare, that by virtue of this order I attached said property at the snit of A. B., and did then and there attach it; and I then, with L. S. and T. S., two householders of the county of — — -, after adminis- tering to them an oath truly to inventory and appraise said prop' (u) 9 Ohio St. 452. (w) 18 Ohio St. 134. (v) Rev. Stat., ? 6601. (x) Rev. Sta*, 1 6ftll. ;ixxvii.] Attachment. 431 i'oriua of returns to attacliment. erty, made a true inventory and appraisement of said property, being all that was attached ; and said inventory and appraisement, signed by me and said householders, is annexed to, and returned with this order.* Said property [now remains in my custody ; or say, if the fact be so, was delivered to G. G-., in whose possession it was found, he having given an undertaking, with suflScient sure- ties, as required by law, herewith returned.] If property is attached subject to a prior attachment, the return thereof may be as follows : On the day of , a. d. 18 — , I went to the place where the property described in an inventory and appraisement thereof^ made under an order of attachment, in the action of B. P. against the within-named C. D., and served on the ■ day of , a. d- 18 — , and there, and on said day of , a. d. 18 — , at 10 o'clock A. M., in the presence and hearing of L. S. and T. S., two credible persons, did declare that by virtue of this order I attached- said property, and did then and there attach it, as in my hands^ subject to said prior attachment. Pees : [^ive items.] 0. C, Constable. 3. Return when 'property attached is claimed by a third person. Proceed as in the preceding form ta the star, * and then as follows .• March 15, 18 — . In obedience to a written order of G. H., J. p. of township, -^ county, hereunto annexed, I restored the following described property above mentioned, to C. M., claimant,, to wit : [here describe, as in the inventory, the property delivered to the claimant.'] 4. Beturn when garnishee is served. Annex to the order a copy of the notice served on the garnishee. I could not come at=^ the property alleged to be in the possession', of G. G., the garnishee ; and, March 15, 18 — , at 11 o'clock a. m., I* served on said G. G., [personally, or say, if the fact be so, by leaving at his usual place of residence, with ; he being absent,], a copy of this order, and a written notice that he appear and an- swer, etc., a copy of which notice is hereunto annexed. 5. Meturn when a corporation is served as garnishee. I could not come at the property alleged to be in the possession of [name the corporation] the garnishee ; and, March 15, 18 — , at 28 (z) This is the language of the statute. 432 ATTACHMENT. [CHAP. Projcedings when there are lands — Form of docket entries. o'clock A. M., I served said corporation with a copy of this ■order, and a written order to appear and answer, etc., (a copy of' ■which notice is hereunto annexed,) by leaving said copy of this ■order, and said notice, with P. P., [naming the head officer, as the president; or say, the secretary; or say, the cashier; or saj/, the man- aging agent, according to the facts,"] of said corporation. Sec. XVI. Proceedings when theee aee lands. If in any case where an order of attachment has been issued by •a justice of the peace, it appears from the return of the officer, and from the examination of the garnishee, that no property, moneys, rights, credits, or effects of the defendant have been taken under the attachment, but that the defendant is the owner of an interest in real estate in the county, the justice before whom the action is spending, must, at the request of the plaintiff, forthwith certify his proceedings to the court of common pleas of the proper county, -and thereupon the clerk of said court dockets the cause, and the ^action is proceeded with in court in all respects as if the same had originated therein.^ Sec. XVII. Poem of docket enteies. The docket entries in the action, other than those relating to the issuing of the order of attachment, and the orders thereon, etc., .growing out of the same, are in the ordinary forms heretofore ^iven.'' The justice should either enter the affidavits at length on his docket, or particularly state the nature thereof. But his neglect to do this will not render his proceedings illegal;* the fact of an affidavit Appearing to have been made at the commencement of the Attachment proceedings, although, stated to be " affidavit for pro- ■ceedings against G., as garnishee," will be presumed (on error to reverse the proceedings of the justice) to have contained a legal cause of attachment.'' The justice will observe that no judgment is rendered against the garnishee in the attachment proceedings, but simply an otder that he pay into court the amount he owes the defendant in attach- ment, or that he deliver on execution issued, the property of tho (y) Kev. Stat., § C5U. (a) 18 Ohio St. 219. (z) ^oe ante, p. 209. (b) 12 Ohio St. 859. .XXXVII.J ATTACHMENT. 43S"' f Form of docket entries. -defendant in attachment, in possession. This order does not con- delude the garnishee, who may refuse to pay, in which case the plaintiff in attachment, to recover from the garnishee the debt he -owes the defendant in attachment, must resort to an action.* Entering judgment against the garnishee upon his answer con- fessing his indebtedness, upon his appearance at the return of the 'Bummons against the defendant in attachment, and before judg- ement against the defendant, is irregular, and the garnishee on 'petition in error could have it reversed, as an action against the garnishee to recover judgment against him can ngt be^i:ongIlJi until judgment is rendered qgaiost the de fenJan t in attachment. But such judgment against the garnishee will be regarded on error ibrought h^ tM pi.dqw.p.nt. iJfhtqr as Only a clerical error, and no ■ cause for reversing the judgment against the judgment debtor.* The justice should enter each case separately on his docket. Some of the entries relating to the attachment, etc., will be here jgiven. No. 93.] Form, of docket entry in attachment. A. B., plaintiff, '\ V. [■ No. — . In attachment. «C. D., defendant. ) May 16, 18—. The plaintiff filed his bill of particu- 4ars as follows: [here copy bill or substance."] Also, filed his aflSdavit establishing that [here state the„i^!^^** ** particular ground named in the affidavit,"] and which affi- •davit is as follows : [here copy affidavit or substance.] The plaintiff asked summons and an order of attach- ment, and entered into the following undertaking ; or, ^ndert»kiB«. say, the following-named persons, his sureties, entered into the following undertaking: {Acre enter the under- •taking.] Issued summons and order of attachment, returnable ordw'iSned.*"' on day, etc. May 25, 18 — , 10 o'clock a. u. Constable made re- setnruati Aurn [here copy the returns.] eowtawe. (I>) 12 Ohio St.- 859. (c) ng}»o4iUtl9. fl|34 ATTACHMENT. [CHAP-, Form of docket entries. May 26, 18r-. Plaintiff filed affidavit for proceedings- ^OaniUhe* »'" ^gg^j^g^ Q Q.^ garnishee, which is as follows: [here copy affidavit or its substance.'] Notice iBBued. Issued notice to garnishee to appear on day of , 18 — , at — A. M. June 5, — . Notice to garnishee returned indorsed as follows : [here copy return.'] It appearing that the summons has not and can not Continnea for be duly Served on the defendant in the county, this- pnbUcaiiQD. p^^gg jg continued until [here name time thereafter between forty and siocty days] for publication of notice. June 10, 18 — , 10 o'clock a. m. [time to which case ad- vtoct of pnb- joumed,] the plaintiff filed affidavit, with copy of notice ""V*"* annexed, showing publication of notice as provided by law. [Mere enter trial and judgment as in other cases. See Forms, ante, p. 209.] June — , 18 — , 10 a. m. G. G., the garnishee, appeared' and was examined under oath, and examination reduced to writing, signed, and filed. And I do find from said examination, that at the time of the service of the order of .attachment, and notice, on said G. G., he was pos- FrocMdings sessed of the following-described property of the defend- **I^tohif "' ^°*' ^- -^•' *° ^^^ • U^^'"''- describe the property.] I do '«" • further find, from the said examination, that, at the time of the service of the order of attachment on said G. G., he was indebted to the said defendant, C. D., as follows : [here describe the nature of the indebtedness; its amount ; when due; and the time when interest began to accrue thereon.] July 5, 18 — . Judgment having been heretofore ren- dered herein against the defendant in attachment, I do order that said garnishee pay into court, on the day of , A. D. 18 — , the said amount of his said itfdebt edness,and deliver on execution issued the said property. otdorofprior- Statement of priorities.— Oedera of attachment having '"*■■ been issued and served on the property and effects of the defendant, C. D., at the times, in favorof the parties,, and in the order following : XXXVII.] ATTACHMENT. 43S A. B. V. C. D. B. F. V. C. D. G. M. V. C. D. Before claim is due. When attachment served. March 10, 18— March 12, 18—. April 13, 18—. And I do find that the priorities exist, and said judgmemta are entitled to be satisfied out. of the property attached, etc. in the order above set forth. Sec. XVIII. Action and attachment befoee a claim is dub.* Where a claim does not exceed one hundred dollars an actioit thereon may bo commenced and an attachment issued before due; if the debtor has sold, conveyed, or otherwise disposed of his prop- erty with the fraudulent intent to cheat or defraud his creditors, or ■to hinder or delay them in the collection of their debts, or is about 'to make such sale, conveyance, or disposition of his property with .«uoh fraudulent intent, or is about to remove his property, or a ma- terial part thereof, with the intent or to the effect of cheating or ■defrauding his creditors, or hindering or delaying them in the col- lection of their debts. Before bringing such action or obtaining such attachment, the .plaintiff, his agent or attorney, must file with the justice an aflS- ■davit showing the nature and amount of the claim, that it is just, when it will become due, and also the existence of some one of the ;grounds of the attachment above stated.^ tjpon filing the affidavit, the plaintiff, his agent or attorney, files 'his bill of particulars and a summons is issued in the usual form.' On the day mentioned in the summons for the appearance of the defendant, the plaintiff, his agent or attorney, applies to the justice for an attachment on the affidavit previously filed. The justice grants the attachment if satisfied that the proper grounds for issuing the same are shown. If the justice refuses to grant an order of attachment, he will dismiss the action without |>rejudice to a future action, and at the costs of the plaintiff. (d) Eev. Stat., §§ 6515-6521. ^e) See form, ante. (f) See ante, p. 48, for form of sum- mons. *36 ATTACHMENT. [CHAP„ Before claim is due. The application for the attachment and the granting thereof should be stated on the docket, at the same time specifying the amount for which the attachment is allowed. The amount so allowed must not exceed a sum sufficient to satisfy the plaintiffs claim and the probable costs of the action. After allowing an attachment, but before issuing the same, the justice must require the plaintiff to file an undertaking, with one- or more sufficient sureties, approved by the justice, in the fonn< given in the third section of this chapter. The'undertaking being approved, the attachment is issued in the form already given in this chapter ,« and the subsequent proceed- ings thereon are the same as hereinbefore directed. As no judg- ment can be rendered for the plaintiff in the action until his claim is due, the justice will enter on his docket an adjournment of the action itself (but not of the attachment proceedings) to a day snb- Oj /jfuent to the time when the claim is due, and then hear and deter- mine the action by trial and judgment as in other cases. In the m.eantime, the proceedings on the attachment will be conducted, without any delay on account of the action itself being adjournea- «ver. (g) Ante, p. 408. XXXVIII.] BAILMENT. 437 Bailment. CHAPTER XXXVIII. BAILMENT. Sbo. l Definitions. II. "Wheee goods are deposited to be kept without reward, AND to be EETtTRNED WHEN THE BAILOR SHALL REQUIRE IT. m. Where a person delivers goods to another to be car- ried WITHOUT REWARD, OR TO HAVE SOME ACT PERFORMED- ABOUT THEM WITHOUT REWARD. rv. Where a person borrows an article to be used for a LIMITED TIME WITHOUT PAYING FOR THE USE. V. Where goods are delivered by a debtor to his creditor, TO be kept as a security for a debt or any engage- ment. Ti. Where goods, animals, or other things are delivered- to a person to use for a temporary period, and for. which use he is to pay a compensation. vn. Where articles are delivered to a person that he may,, FOR A compensation, BESTOW WORK AND LABOR OR CARE UPON THEM. vni. Of the rights, duties, and liabilities of the carriers op GOODS for hire. 1. Who is not a common carrier, and the liability of a private carrier. 2. Who is a common carrier. 3. What are his duties. 4. What are the risks for which he is liable. 5. When his risks commence and terminate. 6. Of the effect of notices given by common carriers, and special contracts limiting their liability. 7. Of the lien of a carrier for freight. 8. How the value of lost goods is estimated. IX. Bill of lading and its assignment, etc. X. Warehousemen. XI. Of the rights, duties, and liabilities of the carriers of passengers. 1. Their duties and liabilities. 2. The rights of passenger carriers. 438 BAILMENT. [CHA*. Definitions. Sec. XII. Of the eights, duties, and liabilities op innkeepeks. XIII. Telegraph companies. Sec. I. Definitions Bailment is the delivery of goods in trust, for some specific object or purpose, and upon a contract, express or implied, to conform to the object or purpose of the trust. The person who delivers the goods is called the bailor, and he to whom the goods are delivered is called the bailee. The law of bailments is generally founded upon the absence of any positive engagement between the parties, in relation to the care with' which the goods shall be kept, or who shall bear the loss, if they are injured or destroyed. An express contract of the par- ties would, of course, dispense with the necessity of any law upon the implied contract ; and a special agreement by any bailee, to use more or less care than the law would have required from him, is, in general, valid and binding.* So, where particular orders are given and assented to, they form the contract between the parties, and the law implies a promise by the bailee to perform such orders.'' Common or ordinary care or diligence is that degree of diligence and care which men of common prudence are accustomed to use and employ, under the same or similar circumstances, in their own concerns, or in order to conduct the enterprise in which they are engaged to a safe and successful termination, having due regard to the rights of others and objects to be accomplished." Where such ordinary care is called into exercise under circumstances of pecu- liar peril, a greater amount of care is required than where the circumstances are less perilous, because persons of ordinary care and prudence, having in view the object to be obtained, and the just rights of others, are in such cases accustomed to exercise more care than in cases less perilous. The amount of care is indeed in- ( reused, but the standard is the same ; that is, ordinary care under the circumstances. Ordinary care therefore requires, in different situations, and in different dangers and circumstances, different de- grees of watchfulness and diligence; so that what would be rea- sonable or ordinary care under one state of circumstances, would (a) 2 Ohio St. 181. As to common (b) 8 Eng. C. L. 233. carriers, see post, sec. 8. (c) 8 Ohio St. 581. XXXVIIl] BAILMENT. 439 Deposit without reward. Jiot be such iinder another. Thus a common carrier is bound to •exercise a higher degree of care as to the passengers inside his carriage, and the probabilities of whose danger he is constantly watching, than he is to persons who may unexpectedly appear on his track.* So, too, where a person is employed in some special duty requiring special skill, such as a surgeon, an engineer upon a railroad, or the like, he is liable for negligence, if he does not exercise the ordinary care and skill that usually appertains to such profession or employ- ment. For less than this in an expert, he is liable ; and when -acting as the employe of another, his principal is liable. Sec, II. Where goods are deposited to be kept without re- ward, AND to be returned WHEN THE BAILOR SHALL REQUIRE IT. This is usually called a deposit. In respect to the persons by .and between whom it may be made, it is only necessary to say, that it is not distinguishable from other contracts in this respect. Infants and married women can not be bound as depositors, though other persons may be so bound to them. If an infant re- ceives a deposit, he is bound to restore it, if it is in his possession •or control, but can not be sued if he lose it. He is responsible for any injury he does to it ; but he is not responsible upon the con- tract, unless it be a necessary contract, and manifestly for his benefit. Personal property of all kinds, and instruments of writing, may "become the subject of deposit. A person who holds property even by a wrong, and without title, may lawfully deposit it, and he is entitled to recover back the «ame, against every one but the rightful owner. The delivery of property to the servant or agent, as such, is a delivery to the master or principal. If a person by mistake, or otherwise, receive his own property on deposit, the bailment is destroyed, and he is not bound to re- store the goods. Where a person takes property to keep, without a reward for so doing, he is bound to take reasonable care of it, and is answerable ■only for positive neglect.* What is reasonable care must depend «ipon the nature ^nd quality of the thing, and the circumstances (d) 18 Ohio St. 255 ; 8 Id. 581 ; 24 Id. 676. (e) 28 Ohio St. 388. 440 BAILMENT. [CHAP: Deposit without reward. under which it is deposited. What would be reasonable care of a bag of wheat, or a load of wood, might be gross neglect if the bag contained money, or if the load were looking-glasses. The nature of the deposit, its value, and the danger of loss, must be taken into consideration when determining the question of care. Where a person had a deposit of money, and put it with his own in a valise, on board a steamboat, and left it there, in an exposed situation all night, and it was stolen, he was held responsible for gross negli- gence. But if he had left it for a moment only, under ordinary- circumstances, and no pressing danger, it would have been other- wise. When the bailee receives benefit from the deposit, greater care is exacted from him. A person who finds property that is lost, is only liable for gross negligence. In general, the person with whom goods are deposited to be kept without reward, has no right to use them, unless the goods are of such a kind that it is necessary to use them in order to take care- of them, or where it may be fairly presumed, from the nature of the goods, or 'Otherwise, that the owner consented that they might be used. When money is locked up in a chest and left in the care of a person, it could not be presumed that the owner intended that the money should be taken out of the chest and used. If a milch, cow were deposited, it might t e fairly presumed that the owner consented that the cow should be milked. If the use would be for the benefit of the owner, his consent may be presumed ; if to his injury, or perilous, it ought not to be presumed, The person with whom property is thus deposfted can sue for and recover in his own name against any wrong-doer who take& or injures it. The owner may also do the same; but if he recover, the person with whom the deposit was made can not afterward sue for the same injury. The property must be returned, as well as it* increase or profits. If an animal deposited brings forth young, the latter are to be delivered to the owner. If the person who made the deposit was not in fact the owner, but came to the pos- session of the goods by theft or otherwise, the goods should not be delivered to him, but to the owner. If the bailee refuse to deliver Buch goods to the owner, he will be liable to him for their value. If A. delivers goods to B., to be delivered over to C., then C. hath the property, and may demand the goods; for B. has no interest or claim in the goods, except to deliver them, which he undertakes XXXVllI.] BAILMENT. 441 Work, etc., upon articles without reward. to do. But in such case there must be a clear asffent on the part of B. to such undertaking, and the mere receipt of the goods wilfc not always be suflScient to establish such assent. When two or more joint owners of property deposit it, the bailee is not, in gen- eral, bound to redeliver the property, except by consent of all the ■parties. But this rule does not apply where one of the joint own- ers, without the consent or knowledge of the other, made the de- posit. In such case, the person who deposited the property has a right to claim it from the bailee. Where the deposit is made with two or more persons, each is liable for the gross negligence, and, in- general, for the fraud of the other. The person with whom property is deposited, is entitled to be- paid all necessary expenses to which he has been subjected for its preservation. He has a lien on the property, and is not bound to-' deliver it up until such expenses are paid ; but he has no right to- detain it for any other debt, or any other account or claim, than such expenses. If he improperly refuse to deliver the property when demanded, he afterward holds it at his peril, and is answer- able to the owner for all defaults and risks whatever, even if the- property be afterwai'd lost by force or inevitable acciHent. When money paid into a bank is passed generally to the credit of the owner, and not placed or received as a special deposit, the bank do not hold the money as bailees, but the relation of debtor and creditor is created, and the money may be applied by the bank to the payment of any demand it may have against the depositor;.; and if the money be lost, though without the fault of the bank^ the depositor is entitled to payment.' Sec. III. Where a person delivers goods to another to be , carried without reward, or to have some act performed about them without a reward. Where there is an understanding to do an act without any re- ward or consideration, the person who delivers or owns the goods has no right of action if the person omit to perform the act about them as he agreed to do. The contract is without consideration, and void. Although such person is not bound to do the act, yet if he proceed to do it, he will render himself liable to an action for any injury arising from gross negligence in its performance. As where the defeadant undertook, gratis, to carry several hogsheads- (f ) 17 Wend. 94. 442 BAILMENT. [CHAP. Borrower. \ of brandy from one cellar and deposit them in another, and he did it so negligently and carelessly that one of the hogsheads was staved and the brandy lost, it was decided that the defendant, not having used ordinary care, was liable for the loss. A bailee who acts without reward in a case in which neither his ■■Bituation nor employment necessarily implies any particular knowl- edge or professional skill, is held to be responsible only for bad faith or gross negligence. Thus, where a general retail merchant undertook voluntarily, and without reward, to enter a parcel of goods for another, together with a parcel of his own of the same sort, at the custom-house, for exportation, and he made an entry under a wrong name, whereby the parcels were seized, it was held that he was not liable for the loss, inasmuch as he took the same care of the goods of his friend as of his own, and had not any re- ward for his undertaking, and he was not of a profession or em- ployment that necessarilj' implied skill in what he undertook. But if a physician should undertake, gratis, to attend a wounded per- son, and should treat him improperly, he would be liable for im- proper treatment, because his profession implied skill. If, how- ever, the business to be transacted presupposes a particular kind -of knowledge, and a person totally ignorant of the subject under- takes it, without reward, it is said that he can not excuse himself -on the ground that he performed the act as well as he was ca- pable. (1) Sec. IV. "Wheee a person borrows an article to be used bt HIM POR A LIMITED TIME WITHOUT PAYING FOR ITS USB. In such case, the article or thing, such as a horse, carriage, or book, is to be returned, and in as good plight as it was when -delivered, subject to ordinary wear and tear from its reasosable use. h (1) It may not be improper here to remark, that justices of the peace are often called upon to draw instruments which none but an able lawyer can draft correctly. They should be extremely cautious about entering upon the performance of such an undertaking. It is generally the interest of all par- ties to have their contracts drawn by an experienced lawyer, as in the end it may save litigation, misunderstanding, and expense. Ken do not, in general, believe this, and will, perhaps, suspect my motives in giving this advice. To save a small sum, they will run the risk of losing a large amount, and involv- -jug themselves in a lawsuit. Their short-sighted economy is the source of the principal income of lawyers. XXXVIII.] BAILMENT. 443- Fledging goods for a debt. The borrower can sue a wrong-doer for taking or injuring the property borrowed. The borrower can not apply the thing borrowed to any other than the very purpose and object for which it was borrowed, nor' permit any other person to use it, as such gratuitous loan is a per- sonal favor; nor keep it beyond the time limited, nor detain it as a pledge for any demand he may otherwise have against the bailor. If he does any one of these things, and the property is, by acci- dent or otherwise, without his fault, injured or lost, he will be re- sponsible to the owner. A borrower is, in general, bound to bestow upon the preservation of the thing borrowed, not merely ordinary, but the greatest care; . and he is responsible not only for slight, but for the slightest neg-- lect. He is not liable for an injury to, or the loss of a thing, by external and irresistible violence; as, if he borrowed a horse for a ■ journey, and he be robbed of the horse, or the horse be acciden- tally injured, without any neglect or imprudence on his part. The owner, however, can not require greater care on the part of the borrpwer, than he had a right to presume the borrower was capable of bestowing. If a spirited horse be lent to a raw youth, and whom the owner knew to be such, the circumspection of an. experienced rider will not be required ; and what would be neglect in one, would not be so in the other. The ordinary expenses attendant on a thing borrowed must be- borne by the borrower ; but if the expenses were extraordinary, and arose from the unexpected and inherent infirmity of the thing,, or were requisite for its preservation, without any neglect on the ■ part of the borrower, the lender must bear them; and the bor- rower has a right to retain the thing until such expenses are reim- burse'!. . As the bailment is gratuitous, the lender may terminate it when- ever ae chooses. Sec'. T. When goods are dehvered bt a debtor to his credi- tor, TO BE KEPT AS A SECDRITT FOR A DEBT OR ENGAGE- MENT. Such d<^>livery of goods, as a security for a debt or engagement, is general'y known by the name of pledging or pawning ; and the persoD 'fi'f.o delivers over the property is called the pawnor, and ha to wbojQt the pledge is given is called the pawnee. Negotiabla paper, m well as personal property, may be the subject of pledge. -444 I BAILMENT. [CHAR. Pledging goods for a debt. The pawnee is bound to take ordinary care of the goods, and is ■ only answerable for ordinary neglect. He, as well as the pawnor,, may sue a wrong-doer for taking or injuring the property ; but he that brings the action has the preference, and a judgment obtained:, 'by cne is a bar to the action by the other. If the property be such as may be injured by use, as clothes or Jinen, the pawnee can not use them. If the pawn be of such a nature as to be a charge upon the pawnee, as a horse or cow, he 'may, in that case, use the pawn in a reasonable manner. If he derive any profits from the pawn, he must apply those profits to- ward his debt, after deducting necessary charges and expenses. Extraordinary expenses, necessarily incurred in the preservatioa ■of the pledge, without the default of the pawnee, must be borne by the pawnor. In general, if the pawn be lost by unavoidable accident or by superior force, or perish from intrinsic defect or infirmity, the pawnee is not answerable, if the loss from such cause be duly made to appear, and no act was done, or omitted to be done, inconsistent with the pawnee's duty of ordinary care and diligence. If the pawnee take ordinary care of the goods, and they should then happen to be lost, he may, notwithstanding, resort to the pawnor for his debt, unless he has refused to deliver the pawn, on tender of the debt; for he then becomes a wrong-doer, and will be answerable, at all events, for any loss or damage which may after- ward happen to the pawn, whether by accident, or in any other •manner. Delivery of the property to the pawnee is essential to create a pledge ; and the pledge of movables, without delivery, is void as : against subsequent purchasers, and generally as against cred- itors.(l) (!) See, as to mortgage of personal property, post, title Mobtqage or ►Goods. The difference between a mortgage conveyance of goods to secure a "debt, and the pledge of goods for the like purposes, i^ this : Where goods are mortgaged, the title passes conditionally to the mortgagee, and if not redeemed at the time stipulated by the payment of the debt, the title becomes complete and absolute in him at law ; but a court, on its equity side, may compel a re- demption of goods and an account, even though the parties agree that the mort- gagee shall have the property mortgaged if the debt be not paid. Wright, 370. If there is a pledge, a special property only passes to the pledgee at law, the ' general property still remaining in the pledger, as will be seen hereafter by th» '.-text. See post, title Mobtqagb or Goods. '^XXVIII.] BAILMENT. 44& Hirer — Bights and liabilities. After the debt is due, for which the property was pledged, and mo contract was made in relation to the disposition of the property, ■the pawnee may, upon giving reasonable notice to the debtor to redeem, sell the goods, or such part of them as will pay the debt. The notice to the party to redeem is indispensable. The pledge covers, however, not only the debt, but the interest upon it, and all necessary expenses that may have attended the possession of the pledge ; and the lien may, by agreement, be created to extend to •cover subsequent advances. But the pawnee can not retain the pledge for any other debt than the one for which the goods were pledged, unless circumstances appear which show that such was the agreement of the parties. In a suit for the pawn, by the pawnor against the pawnee, after due demand and refusal, the burden of proof that the pledge has been lost by casualty, without the fault •of the pawnee, rests on him. But if a suit should be brought ^against the pawnee for a negligent loss of a pawn, then it would be incumbent on the plaintiff to prove the negligent loss. "Sec. VI. Where animals, goods, or other things are deliv- ered TO A person to use FOR A TEMPORARY PERIOD, AND rOR WHICH USE HE IS TO PAT COMPENSATION. The one who lets the property to hire is called the letter, and the person who hires it the hirer. The letter has no right to disturb *he hirer in the use of the thing during the period for which it is liired. If the hirer apply the thing to any other use, or detain it for any longer period than that for which it was hired, and the thing should, by inevitable accident, or otherwise, be injured or ■destroyed while thus detained or improperly used, the hirer would be responsible for the injury or loss. Thus, where a horse is hired as a saddle-horse, the hirer has no right to use the horse in a cart, or to carry loads, or as a beast of burden. So, where a carriage or borse is hired for a journey to Cleveland, the hirer has no right to go with it on a journey to Cincinnati, or beyond Cleveland. If hired for a week, he has no right to use it for eight days. While thus misused, the hirer is responsible for all damages, whether the injury or loss to the thing arises from an accident which could not bave been prevented, or in any other manner whatever. *> (h) 12 Pick. 126 ; 6 Mmb. 104. 446 BAILMENT. [CHAP„ Hirer — Bights and liabilities. But, in general, the hirer is only bound to take the same care^ and use the thing hired in the same manner, as prudent men under like circumstances use and keep the same kind of property. If a man hires a horse, he is bound to ride it moderately and to treat it as carefully as a man of common discretion would his own, and to supply it with suitable food. And if he do so, and the horse in such reasonable use is lamed or injured, he is not responsible for any damages. If two persons jointly hire a horse and carriage on joint account, both are answerable for any misconduct or negli- gence of either in driving or in any other want of proper care. But it would be otherwise when one is the sole hirer and the other merely invited to ride ; the hirer, in such cases, alone being re- sponsible. When both parties are silent as to the number of persons who- are to be permitted to ride in a hired carriage, the hirer is author- ized to carry such number of persons as the vehicle was made for, not exceeding the ordinary load adapted to the team drawing the same.' The hirer must restore the article in as good condition as whett- he received it, unless it be deteriorated by internal decay or by external means without his fault ; and if the article be injured or destroyed without any fault or neglect on the part of the person who hired it, the loss falls on the owner, for the risk is with him. But if the thing hired be lost or damaged by the hirer, or by his- servants acting under' him, from the want of common and ordinary care and diligence, he is responsible. If, therefore, a hired horse is- ridden by the servant of the hirer so immoderately that he is in- jiired or killed thereby, the hirer is personally responsible. So, if the servant of the hirer carelessly and improperly leaves open- the stable-door of the hirer, and the horse is stolen by thieves, the- hirer is responsible therefor. If the servants of the hirer, or others,- steal the goods, he is not liable, unless there are some circumstances- which show in him want of due dilligence. In estimating the requisite care and diligence, the value and nature of the property hired, and the security possessed by the hirer, must be taken into consideration. In case of loss by robbery^ fire, theft, or other accident of a like nature, the hirer is not chargeable, unless it has been occasioned by his own fault or neg- lect. (i) 8 Barb. S. C. 880. XXXVIII.] BAILMBNT. 447 Hirer — ^Bights and liabilities. The bailee, when sued by the bailor for the article hired, mufit show that he delivered it to the plaintiff, or account for not doing BO, by showing a loss of it by some violence, theft, or accident. When the loss is shown, the proof of negligence or want of proper care is thrown upon the plaintiff (who is the bailor), unless the defendant, in showing the loss, has proved his own fault or neglect. In such case the defendant is not bound to prove afBrmatively that the thing was not lost by his neglect, as negligence will not be pre- sumed without proof. The mere fact that the thing was injured or was lost by violence, theft, or accident, does not, in general, show that the bailee was in fault. If, therefore, a horse is hired and in- jured during the bailment, the owner, in order to sustain his action against the hirer, on account thereof, must not only show that the horse was injured, but the burden of proving that the injury arose from the negligence of the hirer, also rests on him ; unless, indeed, the nature of the injury shows of itself that the hirer was in fault. (1) But where the hirer returns the hired property in a damaged condition, and fails or refuses at the time, or subsequently, to give any account of the manner in which the injury occurred, the law will presume negligence on his part, and the burden will be upon him to prove a want of negligence. J The statute of this state provides,* that where any loan of goods and chattels shall be pretended to have been made to any person, with whom (or those claiming under him) possession shall have remained for the space of five years, such goods and chattels shall be deemed the property of the person having had such possession, unless a reservation of the right of such goods and chattels shall have been made to the lender, in writing, and such writing shall have been recorded within six months from the time of making such loan, in the recorder's oflSce for the county where one or both of the parties shall have then resided. ( j) 6 Barr, 417. (k) Eev. Stat. §4197. (1) The rule is different in relation to proof of the negligence of a carri»t of goods for hire. When the carrier is sued for their loss, the law presume j against him in all cases, even of accident, until he shows the loss or injury to haye arisen from the enemies of the state, or the act of GtoA. 7 Cow. 600, note a; 4 Ohio St. 362; 10 Id. 66. 29 448 BAILMENT. [CHAP. Mechanic's, etc., liability for articles delivered to make up or repair. Sec. VII. Where articles are delivered to a person that he MAT, FOR A COMPENSATION, BESTOW WORK AND LABOE OR CARE UPON THEM. Hvery man is presumed to possess the ordinary skill requisite to the due exercise of the art or trade which he assumes. Every mechanic who tak«s any materials to work up for another, in the ■course of his trade, as where a tailor receives cloth to be made into a. coat, or a jeweler a gem to be set, or a mason undertakes to build a house or a chimney, he is bound to perform it in a workmanlike manner.' If he performs the work unskillfully, he is responsible in damages. The mechanic to whom materials are delivered that work may be performed thereon, must use ordinary diligence in preserving the property intrusted to him. Thus, where a .chronometer-maker was intrusted with a chronometer to repair, and left it at night at the window of his shop, but deposited his own watches in a more secure place, and the chronometer was stolen in the night by a ser- vant of the chronometer-maker, it was held that the latter was responsible for the loss.™ But a bailee of this class is not liable for a loss occasioned by mere accident ; although, in case of loss, it lies on him to prove that such loss occurred from no want of ordinary care on his part." If the same identical materials or articles are to be returned in a new form by the workman, after the labor has been bestowed upon them, as where wheat is delivered to be ground, and the flour therefrom to be returned, the workman will be liable for any injury or loss which may arise from his fault or neglect. If, how- ever, he takes that care of them, which a man of common pru- dence, capable of governing a family, takes of like articles, and they are, notwithstanding, injured, burnt, or lost, he will not be responsible. The workman is not liable for slight neglect, nor for 'loss by inevitable accident or irresistible force. In such case, the owner must pay for the work already done or bestowed, unless by express agreement, or the uniform custom of any particular trade, no payment is made for any part of the work until the whole is completed and delivered." But where the same identical materials or articles are not to be returned in a new form, in such case the (1) "Wright, 229, 570; 2 Kent (5 (n) 9 Carr. & P. 632. ed.), 588. (o) C3hit. on Con. 170; 3 Burr. 1592; {m) 5 Eng. C. L. 448. 1 Taunt. 137 ; Story on Bailm. 3XXVIII.] . BAILMENT. 449 Private carrier. ^materials or articles, immediately upon their delivery, become the property of the person to whom they are delivered, and he must .therefore bear the loss, from whatever cause it may arise. Ae where wheat is delivered to a miller to be exchanged for flour, ground from such wheat as the miller may choose to grind for that purpose ; now, if the wheat deliA'ered to the miller is injui'ed or lost, no matter from What cause, still the miller will be bound to deliver the flour; for the wheat became his property the moment it was delivered. (1) . But if wheat be delivered to a miller to be ground, and the flour iherefrom is to bft delivered to the owner of the wheat, in such case -the owner of the wheat r et3,ins \\\ f pr'^rP^'Y '" '^j even though the miller, with the knowledge of the owner, mix the wheat with his ■ own ;P for, in general, where an article of the same kind and value, which is calculated by the bushel or pound, such as wheat, is min- gled together by the consent of the owners, each party is entitled to have divided to him, so many pounds or bushels as he may have put in, and is recognized in law to have a property and ownership in so much as he may have put into the common stock.i If I deliver to you sheep, or other property, for any purpose, and you agree to return the same sheep to me at a future time, the own - ership of the sheep does not pass to you ; but if the agreement is that you shall return to me the same number of sheep of like qual- ity, in that case you become the owner of the sheep delivered, and must, at all events, perform your contract, whether the sheep de- livered by me die or live. (2) :Sec. Vlir. Of the bights, duties, and liabilities of the cab- RIER OP GOODS FOR HIRE. 1. Who is not a common carrier, and the liability of a private car- rier. — It is not every person who undertakes to carry goods for hire, that is deemed a common carrier. A person who occasionally carries goods for hire, will not be deemed a common carrier, and will be responsible only for ordinary (p) 19 Ohio, 337; 1 Ohio St. 251. (q) 19 Ohio, 337. (1) See 2 Kent's Com. 689, where the case of Seymour v. Brown, 19 Johns. 44, is reviewed, and seems to be overruled by the case of Hard v. We^ 7 Cow. 752 ; und see also 1 Ohio St. 244, 253. (2) 7 Cow. 762. As to cases where a mechanic finds part of the materials, And his employer a part, see post, title Sales, sec. 1. 460 BAILMENT. [CHAP.. Who is a common carrier. care and diligence, unless he expressly, by contract, take upon him- self further risks. If a farmer who makes regular trips to a market for the purpose of disposing of farm produce, applies to merchants and others for goods, etc., to carry on his return trips, he is not to be deemed a. common carrier, and his applications for freight, and his carriage- of goods, must be treated as special and individual transactions.' 2. Who is a common carrier. — To bring a person within the de- scription of a common carrier of goods, he must exercise it as a public employment ; he must undertake to carry goods for persons generally, and he must hold himself out as ready to engage in the transportation of goods for hire as a business, and not as an acci - dental occupation upon one or more occasions.' Teamsters, dray- men, and porters, who engage to carry goods for hire as a common employment from place to place, or from one part of a town to another ; the express companies, masters of steamboats, river-boats, canal -boats, and others engaged in the transportation of goods gen- erally for hire, arid a ferryman, occupying a position in a line of travel, and holding himself out for general employment, come within the description of, and are liable as, common carriers.' Tow-boats, in towing vessels, are not common carriers,' and are- therefore bound to no more than ordinary care and skill.' A person who receives and forwards goods, taking upon himself the expenses of transportation, for which he receives a compensa- tion from the owners, but has no concern in the vessels or wagons by which they are transported, and no interest in the freight, is not deemed a common carrier, but a mere warehouseman and agent. In order to charge a person as a common carrier, it is not neces- sary that a specified sum should be agreed on for the hire. Express companies having an interest in the freight charges are common carriers." Where several persons are engaged as -partners in the business of common carriers, and, by contract between them, one finds horses and drivers for certain distances, and another supplies them for the remaining distance, they are, notwithstanding, to be treated as^ partners, and jointly responsible throughout the whole course of the route. The same principle applies to different partners in a coach-oflSce, who are owners or partners in diflFerent coaches em- (r) 20 Ohio, 69. {t) 23 Ohio St. 532; Angell, sec. 86„ (9) 4 Ohio St. 722. (u) 28 Ohio St. 144. XXXVIII.] BAILMENT. 461 What are the duties and risks of a common carrier. ployed at the same oflSce on the common business, though they have not .a common interest in each coach. All of them will be held responsible for any contract made by the keeper of, or agent at, the stage-oflBce. Common carriers are not only responsible for their own acts, but :also for those of their servants and other persons in their employment. 3. What are the duties of a common carrier. — He must take the 'Utmost care of the goods ; obey the directions of the owner in re- spect to them ; carry them safely ; and make a right delivery of them, according to the usage of trade. His cars must be in good order, and with suflScient trainsmen. If the carriage is by water, he is bound to provide a ship or boat that is tight and strong, ■suitably equipped, with a proper crew ; to proceed without devia- tion to the proper port; to expose the goods to no improper haz- .ards ; and to guard against all injuries incident to the property, by reasonable care in preserving the goods from the effects of storms. Tain, bad air, leakages, and thefts. When necessary expenses are incurred by a carrier about the preservation of the goods from extraordinary peril, not properly belonging to the carrier, he is entitled to repayment. Thus, if a sudden flood or storm should do injury to the goods, and require eome immediate expense for their preservation, the carrier would be bound to incur it, and would be entitled to reimbursement. When the expenses arise from an injury for which, in case of loss, rthe carrier would be responsible for the goods, he can not recover (back from the owner of the goods such expenses. 4. What are the risks for whieh a common carrier is liable. — As jfeoon as goods are delivered to a common carrier, he becomes an insurfii Uif their sa fety, and is answerable for every loss or injury which does not arise Irom the act of God, or publio enemies." If •armed persons enter the steamboat, schooner, freight-car, or canal- boat, and plunder it of the goods, or they be stolen, or be burnt, 'Or taken by robbers, without the fault of the common carrier, and where not a shadow of neglect is imputable to him, still he is liable to the owner for their value, unless a special contract is en- tered into with the owner exempting him from responsibility for isnch una\soidable casualties.^ (u) Wright, 193; 10 Ohio, 149. (v) 2 Ohio St. 182. See post p, 656, ■452 BAILMENT. [CHAP^ Bisks of common carriers — Transportation of animals. Eobbers, thieves, mobs, and rioters do not come within the de- nomination of PUBLIC ENEMIES. By enemies, is understood those public enemies with whom the nation is at open war. The ACT OF God denotes natural accidents; such as lightning- earthquakes, and tempests, and not accidents arising from the neg- ligence of man — the expression means something in opposition tO' the act of man.'' If a ship on a lake is forced upon a rock or the Bhore, by an adverse wind, under prudent and careful manage- ment, and the goods lost, this would be deemed the act of God. Goods thrown overboard to save the vessel in a tempest from foundering, and to preserve the lives of the crew, is a loss by the act of God, though accomplished by the immediate agency of man. If a carrier deviate from the usual course of the navigation, and a- loss ensue, he will not be excused while Out of the course, even for a loss resulting from the act of God or public enemies.'" S6, if there be two ways known to the navigation, and one more peril- ous than the other, he takes the most perilous at his own risk. It is made a misdemeanor for common carriers, in transporting: live stock, to detain such stock in cars or compartments for a longer continuous period than twenty-four hours without supply- ing the same with necessary food, water, and attention, or to per- mit them to be so crowded together as to overlie, crush, wound, or- kill each other. The twenty-four hours above mentioned dates from the time such stock may have been put into the cars, whether- shipped from this state or outside its borders.^ The punishment is a fine of not more than two hundred nor less than five dollars, or imprisonment not more than sixty days, or both.^ It is also provided by act of Congress,^ that no railroad company, whose road forms a part of any line of road over which cattle, sheep, swine, or other animals are conveyed from one state to an- other, shall confine the same in cars for a longer period than- twenty-eight consecutive hours, without unloading the same for- rest, water, and feeding for a period of at least five consecutive hours, unless prevented by storm or other accidental casualties. In' estimating such confinement, the time during which the animals- have been confined without such rest on connecting roads front. which they were received, shall be included.' (w) Wright, 193 ; 10 Ohio, 149. (y) Rev. Stat. IT. S., § 4386 et seq. (x) Eev. Stat., g 6951. (z) See title Negligbncb. XXXVIII.] BAILMENT. 453 Transportation of animals. — Exceptions to risks of common carrieTg. Animals so unloaded shall be properly fed and watered during^ each rest by the owner or person or persons haviug the custody thereof, or, in case of his default, then by the railroad company at the expense of the owner or person in custody thereof, for which the company shall have a lien on the animals for food, care, and custody furnished, and shall not be liable for any detention of such animals. Any company, owner, or custodian of such animals who knowingly and willfully fails to comply with the above provisions, is liable to forfeit and pay a penalty of not less than one hundred nor more than five hundred dollars. But when animals are carried in cars, in which they can and do have proper food, water, space, and opportunity to rest, the above provisions in regard to their be- ing unloaded does not apply. The above penalties are recoverable by civil action in the name of ■the United States, in the circuit or district court of the United States ; and the above mentioned lien may be enforced in the same courts. (l) The carrier does not insure against defects in the articles them- selves, and is not liable for natural decay or inherent tendency ta decay, or for ordinary leakage, fermentation, etc. ; nor for injuries caused by careless packing of goods boxed or in packages, so that the mode of packing is concealed :(2) he using reasonable care.^ He may refuse to receive goods improperly packed." Common carriers are not liable for delay or loss arising from the- founderous condition of the, highway, sudden and unusually low (z) 6 Watts, 424; 18 How. 231; 1 301; Angell, sec. 212; 4 Kern. Black, 170; 3 Kent's Com. 299, 570. (a) 26 Ohio St. 59.5. (1) If the owner of animals transported ty a railroad company, encourages or participates in the violation of any of the provisions of tkese statutes, wherehy" his animals are injured or die, it may te doubted whether he would not be- deemed a participator with' the company, in the violation of the statutes, and' on grounds of public policy, as well as the common rule of law relating to joint wrong-doers, be barred of all remedy therefor against the company. It ■will be well, therefore, for owners of stock to be watchful in not participating. in the violation of the provisions of these statutes. (2) A railroad company is not an insurer of the health and good conduct of animals which they transport, any more than it insures the health and good conduct of passengers. 21 Mich. 165. But this does not relieve the company from all reasonable care for their health, and the use of all reasonable and cus- tomary means and appliances to prevent the animals from injuring each other, 4 Ohio St. 723. 454 BAILMENT. [CHAP. Commencement and teTmlnation of risk. water, or the like. But if the delay or loss arise from their taking a greater quantity of commodities than they had the means of trans- porting, or the state of the water permitted, or from unskillful navigation, or any other circumstances not the immediate act of God or public enemies, then they are chargeable." The freezing of canals and rivers will excuse a loss or delaj arising therefrom. But the carrier is bound to use ordinary fore- cast in anticipating the obstruction ; must use all reasonable and proper means to overcome it ; exercise due diligence to complete his undertaking to carry and deliver, as soon as the obstruction is removed; and, in the meantime, must not be guilty of negligence in the care of the property, nor deviate from the course of the ■voyage prescribed, because of the obstruction by ice.'' In the absence of any special contract affecting the time of de- livery, the goods must be delivered in a reasonable time : it is enough if he exercise reasonable diligence to prevent delay arising from accident, although not inevitable." If the goods are perisha- ble, it may be reasonable to at once ship them by another quicker route." The circumstances must determine. If he knows the goods are intended for market, and fall in price while unreasonably de- layed, he is responsible for such depreciation.* 5. As to the commencement and, termination of the risk of common carriers. — To render a carrier responsible, there must be an actual delivery to him, or to his servants, or to some other person author- ized to act in his behalf. If, according to the usage of business, it be a sufficient delivery to leave the goods on the dock, by or near the carrier's boat (which is the case on the canals in the State of New York) f yet to render the delivery in such case complete, there must be notice given to the carrier that the goods are there. The liability of the carrier for the goods commences from the time he accepts the goods, and the usage of the business may de- termine in what such acceptance consists. So long as the carrier retains the possession of the goods as such, or is to perform any further duty, either by custom or contract as (a) 4Har. & J. 291; Murphey, 417; (o) 14 "Wend. 215. See 5 Stew. & Pop- 1 Conn. 487 ; Harper, 468 ; 12 ter, 101 ; 12 111. 477 ; 12 Barb. How. 372. S. C. 310; Angell, sec. 289, et (b) 23 Wend. 306; 44 Id. 215; 12 seq.; 83 Ohio St. 511. 111. 477; 12 Conn. 410; 4 N. (d) 6 Cowen, 767. Hamp. 259. (e) 34 Ohio St. 16. .XXXVIII.] BAILMENT. ^5 Gommencement and termination of risk. •carrier, he is responsible for the safety of the goods ; and whcthei' he is to make a personal delivery of the goods to the owner, or de- posit them in a warehouse, or other place, where the owner resides, will depend upon the contract, or the local custom or usage of trade.^ In the absence of contract or usage the goods must, in general, rbe delivered at suitable hours for business, and at a period when the goods can be properly received and secured,' and to the con- signee personally ,s if the conveyance is in wagons by land ; and if the conveyance is by ships or boats, then, in the absence of any custom at the place of delivery, or any express agreement, the master may leave' them at some usual place of delivery, and give notice thereof to the consignee^ A carrier has no right to leave or abandon goods on the wharf, -even though there be an inability or refusal of the consignee to receive them. The carrier continues liable when he leaves goods -on a whai'f, until notice to the consignee, and for a reasonable time afterward to enable him to take possession of the goods.' A general custom prevails on the Ohio river for common carriers to deliver goods either at the wharf or a warehouse ; and when .^oods are carried by railroad, the goods are delivered at a depot, ^nd generally deposited at a warehouse of the railroad company, without charge, to remain there a reasonable time for the owner. And it has been held where a railroad company thus deposit goods at their warehouse, they are not liable as common carriers for the loss of the goods from their warehouse, after notice to the owner and a reasonable time has elapsed to remove them, but are in such ■case liable only, like other warehousemen, for ordinary care.J If the consignee is dead, absent, or refuses to receive, or is not known, or can not, after due ^orts are made, be found, the carrier imay discharge himself from farther responsibility by placing the .-goods with some warehouseman, to account of the owner ,^ and give motice and advertise and sell them under the statute.' Where a common carrier on the canals, in unloading his boat at (e) 4 Ohio, 334; see 16 Id. 514. (i) 3 Comst. 322; 2 Kent (7 ed.), (f) 17 Conn. 138; 3 Dana, 92; 5 776; 17 Wend." 305. Watts & Serg. 123. ( j) 10 Met. 472. (g) 6 Wheat. 505 ; 17 Wend. 305 ; see (k) 1 Denio, 47 ; 2 Story, 81 ; 6 W«tti 4 Pick. 371. & S. 62. ^li) 4 Pick. 371; 1 Denio, 47; 17 (1) Kev. Stat., ?? 3221 et seq. As to Wend. 305; 1 Kawle, 203. sale of perisliable goods, see Id. i 3229. 456 BAILMENT. [OHiiP; Commenoement and termination of risk. the termination of his voyage, nsed the tackle of a third person in> hoisting the goods from the boat into the warehouse, where they were to be delivered, and the machinery broke, and the goods were injured, it was held that the carrier was liable; the machinery be- fng, for the then purpose, his, and that he was responsible for its sufficiency.' If the carrier is induced, by the fraud or deceit of a stranger, to deliver the goods to a wrong person, this will not exonerate him from liability to the owner, who may sue for their value.™ A carrier receiving goods destined to a point beyond his line, is- not bound to agree to transport them beyond his line ; but, if he does so agree, he is bound to do it, and there safely deliver them." If he agrees to transport the goods to a certain point and there forward them by delivery to other connecting carriers, he assumes the responsibility of carrier only to the place to which he agreed to transport them ; and upon due and safe delivery to a carrier there of the goods and of the instructions of the consignor relat- ing to them, is discharged from all further liability." Where goods are marked with the name and place of residence of the owner, and are described in the bill of lading as so marked, in the absence of anything appearing to the contrary either in the bill of lading, the marks upon the goods, or otherwise, the residence of the owner is to be taken as their ultimate destination. Thus, till of lading for the transportation of goods from New York to Philadelphia was executed in the following form : " Eeceived of Davis & Co. one case of merchandise marked D. Mott, Memphis, Tenn., to be transported to Philadelphia, and there delivered to the Penn. E. R. ; all rail to Cincinnati, Ohio." Nothing further appeared in the bill or upon tbe package to indicate its destination. The package was duly received at Cincinnati by the agents of the' Pennsylvania Eailroad Company, and by them placed in the hands of carriers for transportation to Memphis, but was lost on th» voyage thither. In an action by the owner of the package against the forwarding agents, it was held by the court that, prima facie, the ultimate destination of the package was Memphis, and not Cin- (1) 14 Wend. 225 j see Angell, see. (o) 22 Ohio St. 149; 14 Barb. 524; S 282. Ohio, 358; 2 Soamm. 288; 8 (m) 15 Bng. 0. L. 47. Watts & S. 44 ; 8 M. & W. 421 j (n) 16 Ohio St. 98; 19 Id. 221. Ang. sees. 95-98; 19 Ohio St. 221; 28 Id. 358. See post,. p. 469. XXXVIII.] BAILMENT. 457 Commencement and termination of risk. cinnati ; and in the absence of evidence to the contrary, the agents were justified in forwarding it to Memphis, and were not liable to the owners for its loss.? A common carrier, however, who undertakes to transport goods over the whole or any part of his own route, and then to deliver them to another line for transportation to a designated destination beyond, is bound to transmit with their delivery to the carrier next on the route, all special instructions received by him from the ship- peror consignor, and, in default thereof in any material or sub- stantive particular, to stand responsible for and make good the loss to which such negligence shall have contributed; and marks or labels on the packages delivered, will not supply the omission from the shipping bills of such special instructions, where it is shown that such marks or labels did not come to the actual knowledge of the next succeeding carrier or agent charged with the duty of re- ceiving and forwarding such goods. Thus, the Little Miami Eail- road Company received a package of trees from the Cleveland Eailroad Company which, in the way freight-bill of the latter, was described and directed thus : " Consignees, H. H. Washburn, Mar- tinsburg. Mo., N. M. R." The initials N. M. E. meant the Northern Missouri Eailroad, a line direct from St. Louis to Martinsburg, Mis- eouri. These initials were omitted from the shipping-bill of the Little Miami Eailroad, and therefore the package was not deliv- ered to the N. M. E. line for transportation, and in consequence thereof, were delayed at St. Louis, and perished. It was held that the Little Miami Eailroad Company was responsible for negligence- in omitting the special instructions.' The shipper who has paid freight charges may, before the goods^ arrive at the place of destination, take possession of them at any intermediate point, if, by so doing, he does not unreasonably inter- fere with the business of the carrier ; and upon doing so, all further responsibility and risk of the carrier thereupon ceases.** As to when a railroad company becomes a warehouseman : The responsibility of the common carrier as such continues, in general, after the goods have reached their destination, until the- consignee has reasonable time to call for, examine, and compare the packages with the bill of lading, and take them.* The moda (p) 22 Ohio St. 149. (a) 42 Vt. 700. (q) 22 Ohio St. 824. (b) 19 Ohio St. 438. 458 BAILMENT. [OHAP. Notice and special contract as to risks. of doing business at stations, and the known custom, either of con- rsignees calling to receive their goods at once from the platform of the station, or depending upon notice given them by the statibn- agent of the arrival of the goods, enters into the question as tO' •when the duties of the carrier end.'' But it is usual at most sta- "tions for the carrier to give such notice; and in the absence of a known and adopted custom to the contrary, the liability of the ■carrier as such does not cease until the notice is given or left at the business place of the consignee of the arrival of the goods, and a reasonable time has elapsed for their removal, after which the car- rier is responsible as a warehouseman, or he may place the goods in the warehouse of a warehouseman at the expense of the con- signee." The delivery of the goods to the wrong person, either by an innocent mistake or through fraud of third persons, as upon a forged order, will not, as has been already stated, relieve the carrier from his responsibility to the rightful owner."* 6. Of the nature and effect of notices given by common carriers, and special contracts limiting their liability. — A common carrier can not Testrict his liability for risks and care by notice, verbal, written, or printed, even when brought to the knowledge of the owner or em- ployer.'' He may, however, by such notice brought home to the party sending goods by him, limit and qualify his responsibility for carry- ing certain commodities beyond the scope of his general business ; or he may make his responsibility dependent on certain conditions, as to having notice of the kind, quality, and value of the goods;' but be can not limit the damages to a nominal sum for negligence.' Inasmuch as the liability of a common carrier extends beyond that of losses by his own default or omission of duty, such, for in- -stance, as the wrongful act of a third person, an accidental fire (not caused by lightning), robbery, etc., which no care could prevent, and no ordinary agents could resist; therefore, as against these (b) 69 Penn. 374. (r) 10 Ohio, 145. (o) 104 Mass. 122; 38 Conn. 143. As (s) 23 Vt. 186; Angell, sec. 245; 2 to unclaimed goods, see Rev. Greenl. Ev., sec. 215 ; 2 Kent Stat, S§ 3221, 3229; 27 Ohio (5 ed.), 606, 607 ; 9Wend.ll5f St. 435. Story on Bailments, sec. 557. (d) 45 N. Y. 34; 42 Vt. 700; 50 N. (t) 28 Ohio St. 144. T. 218. XXXVni.] BAILMENT. 459' Lien for freight and advances: liabilities, and the like caused by accident, mistake, or other una- voidable occurrences, without any fault or neglect on the part of the carrier, he may, by special contract, protect himself.* A com- mon carrier can not, however, by special contract, protect himself from losses arising from defective or unsafe cars or vehicles, nor from his own neglect or omission of duty, nor from the neglect or omission of duty of his servants or agents.' And when the special, contract contained an exception from liability for any loss which might arise from "the damages of the river, fire, and unavoidable accident," it was held that the contract was valid, and Upon proof of loss, the burden of showing that the loss came within the ex- ception, rested upon the carrier.' Although the injury or loss may have been caused by one of the excepted causes, yet the carrier is responsible if the injury or loss might have been prevented by the' exercise of reasonable skill and attention on the part of the per- sons eftiployed in the conveyance of the goods ; and the burden is, in general, upon the carrier to show, prima facie, due diligence and care to prevent the excepted accident," and that the exemption was- part of the contract of shipment.' 7. Of the lien of the carrier for freight. — The carrier is entitled; to a lien on the goods for his hire or freight, and is not bound to deliver them until he receives it, and for advances made by him,, in good faith, to other carriers from whom he received the goods in the regular line of transit,^ unless he has entered into'some special contract, by which it was waived. The consignor, or person who- sends the goods, is ordinarily bound to pay for the hire or freight ; but whenever the person to whom the goods are sent, who is called the consignee, engages to pay it, he may also be responsible. It is usual for the bill of lading (which is the receipt of the carrier for the goods, and the contract for their transportation,) to state that the goods are to be delivered to the consignee or to his assigns, he or they paying freight, in which case the consignee and his assigns, by accepting the goods, become bound to pay the freight. And the fact that the consignor is also liable to pay the freight, will not in such case make any diflferenoe. If goods contracted to be carried to a particular place and safely delivered, were either in fact negli- gently lost, or safely conveyed and delivered to a wrong person, (t) 2 Ohio St. 132 ; 10 Id. 65. St. 362. Contra, 12 How. 272,, (u) 2 Ohio St. 132 ; 10 Id. 65 ; 4 Ohio as to burden of proof. [ (v) 11 Ohio, 303. (a) 28 Ohio St. 358, 418; 26 Id. 595. 460 BAILMENT. [OHAP. How value of lost goods is to be estimated. (though by mistake, or if any other act was done rendeiing a deliv- ery of them impraeticahle, the carrier is entitled to no freight.'" If the carrier demands an unreasonable amount for freight, the owner of the goods should tender what is right, and may then sue the carrier for the goods, or their value, before a justice, if it does not exceed his jurisdiction. The lien of the carrier ceases after the ■tender. Difficulties often arise between the owner and the carrier when (the goods have been injured, or their transportation unnecessarily delayed ; the owner wishes the damages to be deducted from the •freight, and the carrier refuses to deliver the goods unless the whole freight is paid. "Where the damage or delay has not arisen from the negligence of the carrier who last received the goods, the owner has no right to deduct the damage from the freight, or from the advancements paid by such carrier, in good faith, on receiving the goods from another carrier, in the proper line of transit.^^ But when the carrier who delivers the goods has himself been guilty of the negligence, the owner is entitled to the possession of the goods, entirely discharged from the lien for freight, upon his tendering to :the carrier the balance of the freight, if any, after a reasot able de- duction for the damages sustained by a loss, injury, or delay.y Upon failure of the carrier to deliver the goods at the place of destination, although occasioned by the act of God, the carrier is not entitled to any portion of the freight. If, however, the ship- per voluntarily accept the goods at the place where the voyage ia interrupted, or sell there, or if he abandon the goods to the insur- ers at such place, and the latter, as his assigns, takes possession of the goods, in either case the carrier will be entitled to advances ;made on the goods by previous carriers, and to pro rata freight.* 8. How the value of lost goods is to be estimated. — The goods lost hj the carrier must be estimated according to their value at the j)lace where they were to be delivered by him, and the owner will be entitled, in such case, to recover the value so estimated, and in- terest, after deducting the amount of freight unpaid." The terms of the bill of lading may, however, control this im- j)lied place of valuation. (w) 6 Har. & J. 400 ; Chitty's Con. (z) 15 Barb. 51 ; 2 Burr. 882 ; Abbott, 152, notes (8 ed.) 434 et seq. ; 14 Wend. 215. (x) 11 Ohio, 804. (a) 6 Ohio, 358; 28 Ohio St. 358. ,(y) 1 Camp. 63; Chitty's Con. 277; 11 Ohio, 303. XXXVin.] BAILMENT. 4l3t Bill of lading, and its assignment, etc. Seo. IX. Bill of lading, and its assignment, etc. It is usual to accompany the shipment of goods -with a bill of lad- ing, in which is, in general, inserted an acknowledgment by the carrier of having received the goods in good condition, and which contains the contract between the carrier and the person who ship- ped the goods. This contract being in writing, can not be enlarged, explained, or changed, by verbal proof of what the understanding or intention of the parties was, before or at the time of making the bill of lading, though verbal evidence may be received to show tho common usage of trade under the words or terms of the bill of lading ;'' and in so far as the bill of lading is a receipt for property to be transported, any mistake in the amount may, as between ship- per and carrier, be corrected by parol testimony." In other respects the bill of lading is the contract between tho parties, determines their rights, and can not be contradicted hy parol proof* It is not necessary that both parties should sign it. It is enough if signed by the company or its freight agent, and accepted and acquiesced in by the other party, and there was no fraud, deceit, or mistake accompanying the transaction.^ The carrier, however, may show notwithstanding the bill of lading, that the goods were not in good condition, or the damage complained of existed at the time he received them.* Contracts made by common carriers of other states, and to bo performed there, will, when sued upon here, be construed accord- ing to the laws of such other states.^ Bills of lading on Lake Erie generally specify that the goods fihall be delivered in good condition, " the dangers of navigation excepted ;" or, " the danger of the lake and waves only excepted." Bills of lading on the Ohio river, except " the dangers of the river, fire, and unavoidable accidents." The " dangers of navigjijtion " or " river" may include accidents peculiar to the river, etc., and such as may not happen by the act of God, and public enemies. When merchandise received by a car- rier to be delivered in good order, the " dangers of the river ex- (b) Wright, 192; 4 Ohio, 334, 362; (e) 19 Ohio St. 221. See 28 Id. 418. 19 Ohio St. 222. (f) 4 Ohio, 346; "Wright, 240. (c) 22 Ohio St. 136 ; 4 Ohio, 334. (g) 19 Ohio St. 260. (d) 19 Ohio St. 221 ; 4 Id. 862 ; 4 Ohio, 334. ■4B2 BAILMENT. [CHAP^ Bill of lading, and its aesignment, etc. cepted," gets wet by accident, tlie carrier is not liable for the dam- age, if it arose from the dangers of the river, and not from bi» neglect. But if, in such case, the carrier omits reasonable care to preserve the goods from the effects of the injury, he will be liable for the injury resulting from his negligence.'' If the boat, by a tempest, is forced upon a known snag, or the like, or into collision with another boat, or upon an unknown snag, with- out a tempest, the accident is one of the dangers of the lake or • river. The carrier of goods is liable to the owner for their injury by the careless collision of another boat.' The shipper or consignor is the one who delivers the goods to the carrier ; the consignee the person to whom the carrier is to de- liver the goods. The bill of lading is commercially, in the transfer and pledge of the goods, the symbol of the goods as if the bill were- the goods. . Goods are sometimes sent by the shipper for his own benefit ; sometimes solely for a buyer. In the former case the= shipper is the owner ; in the latter the title of the goods, when de- livered to the carrier, will then, in general, pass to the buyer, un- less the circumstances show a different intent. In eitber case, the^ intent governs.J If, therefore, circumstances show that the con- signor intended to retain title or disposition of the property, he may, before the carrier delivers the same to the consignee by in- dorsement on the bill of lading, qualify or restrict the delivery, etc., or may transfer his title by delivery of the bill of lading, with restrictions, etc., annexed,' such as a draft on the consignee for their value; or, in such case, if the bill is for delivery to A. or order, and the consignor assigns the bill to B., then B. is charge- able with notice of the rights of A. and his assignee ; or if the bill is made out expressly for the use of the consignor or order, then the consignee, or his assignee of the bill, is chargeable with notice- of the rights of the consignor. A transfer of the bill vests in the assignee no better title than the assignor held.J The carrier is the agent of the one holding title or a right to de- livery of the goods. The bill of lading must accompany a demand of the goods from the carrier. Where several bills of lading have been signed for the same (h) 1 McBride, 81. See ante, p. 452. (j) 25 Ohio St. 360; 30 Id. 211. See- (i) Wright, 741. post, p. 463. XXXVm.] BAILMENT. 463 Bill of lading, and' its assignment, etc. propei;ty (original duplicates being usually signed), no reference ia to be had to the time when they were signed by the carrier, to de- termine the rights of assignees ; but the .assignee who first gets one of them by legal title from the owner or shipper of the prop- erty, has a right to the consignment ; and, when such bills, though different upon the face of them, are constructively the same, and the carrier has acted bona fide, a delivery of the property in good - faith to a person holding one of them by legal title will discharge the carrier from all liability to a person claiming the property under another or prior assignment of one of the bills of lading, of which the carrier had no notice. The first assignee, however, may in such case recover the property from the second assignee, if it has been delivered by the carrier to the latter. (1) The insertion of the name of a person as consignee in a bill of lading, gives such person no property in the goods, nor right to take possession of them, until eifect be given to the bill of lading by a delivery to such person, by the shipper himself, or some per- son by him duly authorized. Nor will the mere indorsement of the bill of lading by the consignee, without a delivery of it, transfer the property in the goods.™ But the delivery of the bill to a third person for the benefit of the indorser, or inclosing it in a letter directed to him, and depositing it in the post-oflSce, post-paid, would, it seems, amount to a constructive delivery, and from that time pass the property." The bill of lading is sometimes made out for delivery of the goods to the consignor himself, or his assigns, and sometimes " to , order," or "to , assigns," which import an engagement to de- liver to the person whom the consignor' may nominate, and his as- signs. A bill of lading to bearer, or even in blank, delivered by the consignor or shipper for value, would be sufficient to enable the holder to receive and hold the property agfiinst anypersop, except the prior indorsee, without notice." If the shijoper be in fact the owner of the goods, and the ship- ment be on his own account and risk, he may (although a third (In) 12 Pick. 297; 15 Mass. 528. (o) 12 Pick. 297 ; 8 Id. 101. (n) 12 Pick. 297; 15 Mass. 528. (1) 1 T. E. 205; 19 Ohio St. 419. The legal operation of an assignment ot 'a bill of lading and of a warehouseman's receipt, and the rights of assignees under both, seem to be substantially the same. As to warehousemen's receiptE^ and theii assignment, see the next section of this chapter. 30 464 BAILMENT. [CHAP. Bill of lading, and its assignment, etc. person be named in the bill of lading as consignee), by assign- ment on the bill of lading, or by a separate instrument, pass the legal title to the goods,i' against all persons, except a previous pur- chaser from the consignee ; and even such previous purchaser will not be protected unless he paid a valuable consideration to the eonaignee and obtained a transfer and delivery of the bill without notice. The power of transferring the property in the goods, by an as- signment of the bill of lading, remains to the shipper, as long as th J goods are in the hands of an agent of his, and he may alter their destination while they are on board. Thus, if the captain sign a bill of lading for the delivery of goods to A., or his assigns, and the shipper transmit a bill of lading to B., making them deliverable to him, B. will be entitled to them, if nothing further had been done to vest the property in A. The mere shipment of the goods does not always vest the prop- erty in the consignee, although the purchaser. A stipulation in a bill of lading that the goods are to be delivered, "subject to the payment of a certain sum of money," named, " to the clerk of the master of the boat, for A. B.," or the like, obliges the master to see that the condition is complied with before delivering the goods.* So, there may be some condition unperformed, or circumstancen, inducing the shipper to retain in his own hands the ultimate ap- pointment of the consignment. In all such cases it is the carrier's duty, if the bill of lading afford notice of such condition or cir- cumstances, to retain, and he can not safely deliver the goods, until the performance of the condition, or until the goods are claimed of him by the holder of the bill of lading cleared of the condi- tion.(l) (p) 1 Pet. 445 ; 5 Met. 306 ; 18 Johns, (q) 2 Ohio St. 142 ; 17 Ohio, 460. I5T; 12 Pick. 307; 7 Man. & Gran. 882 ; 4 Binn. 258. (1) 17 Ohio, 460; 2 Ohio St. 143; 25 Id. 360. The following statutes le- I?.ting to hills of lading and warehouse receipts can not he too carefully con- sidered: Kev. Stat., § 3214. Every person in whose name any merchandise shall ha shipped, or delivered to the keeper of any warehouse, or other factor or agent, XXXVIII.] BAILMENT. 465 Warehousemen. Sec. X, Warehousemen. There are, in general, warehouses erected at the place where goods are to Ibe shipped, and in which the goods are placed before transportation. A warehouseman, or oiiiCr person who receives goods on deposit for hire, is only liable for such injuries and losses as arise from his fault or neglect. If the goods are taken or lost by fire, robbery, or other accident, over which he had no control, and which did not arise from his carelessness, he will not be re- sponsible. He is only bound to take such care, and use such dili- gence, as men of ordinary prudence exercise under like circum- stances." (a) 9 Wend. 268, 60. to be shipped, shall he deemed the true owner thereof, so far as to entitle the consignee of such merchandise to a lien thereon- First. For any money advanced, or negotiable security given by such con- signee, to or for the use of the person in whose name such shipment, or such delivery of merchandise to be shipped, shall have been made. Second. For money or negotiable security received by the person in whose name such shipment or such delivery of merchandise to be shipped, shall have been made to or for the use of such consignee. § 3215. The lien provided for in the preceding section shall not exist when such consignee shall have notice by the bill of lading, or otherwise, at or before the advancing of any money or security by him, or at or before the receiving of such money or security by the person in whose name the shipment or the delivery of the merchandise to be shipped, shall have been..jnade, that such person is not the actual and bona fide owner thereof. §■ 3216. Every factor or other agent intrusted with the possession of any bill of lading, custom-house permit, or warehouse-keeper's receipt for the delivery of any such merchandise, and every such factor or agent not having the docu- mentary evidence of title, who shall be intrusted with the possession of any merchandise for the purpose of sale, or as a security for any advances to be made or obtained thereon, shall be deemed to be the true owner thereof, so far as to give validity to any contract made by such agent with any other person f-ir the sale or disposition of the whole, or any part of such merchandise, for any money advanced, or negotiable instrument, or other obligation in writing given by such other person upon the faith thereof.® \ 3217. Every person who shall hereafter accept any such merchandise on deposit from any such agent, as security for any antecedent debt or demand, shall not acquire thereby, or enforce any right or interest in or to tuch mer- chandise or document, other than was possessed or might have been enforced by such agent at the time of such deposit. « See 22 Ohio St. 695. 466-7-8. BAILMENT. Warehousemen. Where wheat was received by a warehouseman, and, with the consent of the depositor, put in mass with other wheat of the ware-_ houseman, with the understanding that the wheat was to be at the disposal of the warehouseman, either to retain or ship it, and that when the receipts given by the warehouseman should be presented by the depositor, the warehouseman should, at his option, either pay the market price for the wheat, or redeliver the same wheat, or deliver other wheat of equal amount and quality to the depos- itor, it was held that the property in the wheat immediately vested, on delivery, in the warehouseman.' (t) 1 Ohio St. 248. ? 3218. Nothing contained in the two last preceding sections of this act shall be construed to prevent the true owner of any merchandise so deposited, from demanding or receiving the same upon repayment of the money advanced, or on restoration of the security given on the deposit of such merchandise, and upon satisfying such lien as may exist thereon in favor of the agent who may have deposited the same ; nor from recovering any balance which may remain in the hands of the person with whom such merchandise shall have been de- posited, as the produce of the sale thereof, after satisfying the amount justly due to such person by reason of such deposit. 5 3219. Nothing contained in this act shall authorize a common carrier, ware- house-keeper, or other person to whom merchandise or other property may bo committed for transportation or storage only, to sell or hypethecate the same. ? 0815. A carrier, warelioiiseman, lactor, storage, forwarding or commission merchant, or his cleric, agent, or employe, who, with intent to defraud, sells, or in any way disposes of, or applies or converts to his own use, any bill of ladini;, custom-house permit, or warehouse-keeper's receipt, inti'usted to or possessed by him, or any property intrusted or consigned to him, or the proceeds or prof- its of any sale of such property, or fails to pay over such proceeds, deducting charges and usual commissions ; and a consignor of any property, or his agent, not being the absolute owner thereof, and not having authority to stop, coun- termand, or change the consignment thereof, or to sell or incumber the same during transit, who, with intent to defraud, after delivery thereof for trans- portation on any watercraft or vehicle, in any vvay stops, countermands, or changes the consignment thereof, or sells, disposes of, or incumbers such prop- erty, during transit, or after the delivery thereof, or in any way converts the same to his own use, shall be imprisoned in the penitentiary not more than four years nor less than one year. § 7085. Whoever executes and dolivers to any person any false or fictitious bill of lading, receipt, schedule, invoice, or other written instrument, to the purport or effect that any property usually transported. by carriers had been or was held, delivered, received, or deposited on board of any steamboat or water- craft navigating the waters in or bordering upon the State of Ohio, or at the freight office, depot, station, or other place designated or used by any railroad company, or other common carrier, for the reception of any such property, when such prope.rty was not held, or had not, in fact and in good faith, been delivered, received, or deposited on board such steamboat, or other watercraft, or at such place, at the time such written instrument was made and delivered, with intent to defraud; or indorses, assigns, transfers, or puts off, or attempts to iadorse, assign, transfer, or put off, any such false or fictitious bill of lading, XXXVIII.] BAILMENT. 4^9 Warehousemen and forwarders. It is the duty of a warehouseman and forwarder, when he for- wards goods, to take from the carrier a receipt or bill of lading ; and if he omit to take a receipt, or to make a memoi'andum of the transaction, and also fail, when requested, to give any account what- ever of the property, which never arrives at its place of destina- tion, the warehouseman and forwarder will be liable for its value.^ The owner of goods is, in general, bound by the contract made by a warehouseman and forwarder with the carrier of the goods.' But a warehouseman is sometimes the carrier of the goods which he receives. In such case, if ihe deposit of the goods in the ware- honse is made to liacilitate the carriage by the warehouseman, and is subordinate to the transportation, he then receives the goods as the carrier, and is responsible as such. On the other hand, if a person is at the same time a common carrier and forwarding mer- chant, and he receives goods into his warehouse to be forwarded according to the future orders of the owners, he is only liable as a warehouseman. In all such cases, the material point to ascertain is, whether the goods were i-eceived by the party in his character of warehouseman or common carrier. As soon as goods have arrived at their proper place of destina- tion and are deposited there a reasonable time for the owner to take them, and no further duty remains to be done by the carrier, (u) 13 Barb. 481. (v) 5 Sandf. 180. receipt, invoice, schedule, or other written instrument, knowing the same to be false, fraudulent, or fictitious, shall be imprisoned in the penitentiary not more than four years nor less than one year. § 7086. Whoever executes and delivers to any person any false or fictitious warehouse receipt, acknowledgment, or other instrument of writing, to the pur- port and effect that any person held or had received in store, or held or had re- ceived in any warehouse, or in any other place, or- held or had received into possession, custody, or control, any goods, wares, or merchandise, when such goods, wares, or merchandise were not held, or had not been received, in good taith by sueh person, with intent to defraud; or indorses, assigns, transfers, or delivers, or attempts to indorse, transfer, or deliver to any person, any such false or fictitious warehouse receipt, acknowledgment, or instrument of writing, knowing the same to be false, fraudulent, or fictitious, shall be imprisoned in the penitentiary not more than throe years nor less than one year. § 7087. A person in whose name any property has been shipped or deliv- ered to any warehouse-keeper, or other factor or agent, to be shipped, who re- ceives from the consignee thereof any advancement thereon of money, or any negotiable security, and who, with intent to defraud, and without the consent of such consignee, disposes of such property in any other way than as he agreed with the consignee at the time of such advancement, shall be imprisoned in the penitentiary not more than three years nor less than one year; but this section shall not extend to any person who, before disposing of any such prop- erty, pays or offers to paj' to the consignee thereof the full amount "of his ad- vaucement made thereon. '470 BAILMENT. [chap. Warehousemen^-Assignment of receipt — Transfer of receipt. his responsibility as such ceases. If a carrier, between Buffalo and Dayton receives goods to be carried from Buffalo to Dayton, and thence to be forwarded by a distinct conveyance to Cincinnati, as soon a.n he arrives with the goods at Dayton, and deposits them in hie warehous.e, his responsibility as carrier then ceases, for that is the end of his duty as such, unless there be some further stipula- tion on his part. He then becomes, as to the goods, a mere ware- houseman, undertaking for their further transportation.' But ho would be chargeable in such case as a common carrier for any losj during a deposit in any warehouse between Buffalo and Dayton.? The assignee of a warehouse receipt for property can take no greater right or interest than his assignor possessed ; and is charge- able with' the same notice, and with all the equities that would apply to him,^ subject, however, to. the provisions of the statute given in a preceding note.^ A warehouseman who had received largo quantities of wheat from various persons on deposit, acknowiedged, in writing, to have received from A. a certain quantity of wheat which A. had never deposited, but the price of which A. had paid him \ and he afler- \yard divided the wheat which he actually had among the respective depositors thereof. It was held that A. could not maintain repleviu against one of the depositors for the portion so assigned to the latter." A warehouse receipt, therefore, is not, in a technical sense (like a bill of exchange), a negotiable instrument; it merely stands in the placjB of the property it represents — that is, an assignment and delivery of the receipt, by the party to whom it is made to a third person, has the same effect in transferring the ownership of the property, as an actual delivery of the property for which the ware- house receipt was given, and such assignee takes, as against the maker of the receipt, the rights only of his assignor, except where there is some fraud on the part of the maker of the receipt. Thus, where a warehouseman, on the application of S., the owner of fifty barrels of oil, issued to the latter, by mistake, two warehouse re- ceipts for the fifty barrels of oil, and S. assigned the last receipt to A. for value, to whom the warehouseman delivered the oil, and S. also assigned the first receipt to B. for value, who recovered the oil of A. by replevin, and A. then, instead of suing S. on his im- plied warranty of ownership, sued the warehouseman on the last (v) See post, p. 4.56. (w) 15 Barb. 506. (x) See ante, p. 464. (y) 28 Ohio St. 358. (z) 14 How. 525. As to duties in respect to goods unclaimed, see Rev. Stat., § 8221 et seq. XXXVIII.] BAILMENT. 471 Carriers of passengers. receipt ; it was held by the court, that the warehouseman, in the absence of all frauds might show the mistake in giving the last receipt, and that it was a good defense." If, however, A. had taken the receipt on the faith of a false verbal representation to him by the warehouseman, that he held the oil on it, the warehousemau would have been egto££ed from showing the mistake.'' Sec. XI. Of the rights, duties, and liabilities ow carriers of PASSENGERS. ' 1.. Their duties and liabilities.— 'i!hey must, in general, carry those who are ready to pay fare ; but may exclude persons drunk or disorderly ; and may eject those who are disorderly, gamble, put in terror fellow passengers, or who refuse to pay fare, or-who have lost their. tickets and refuse to pay fare. If a ticket is wrongfully taken up, the remedy is not to submit to being ejected from the car, but to again pay fare, if required, and then sue for the wrongful taking up of the ticket." The ejection must be made with reason- able prudence as to time, place, and circumstances, and if so done, and the passenger is run over by another train, not in fault, the company will not be liable." Where a person purchases a ticket, and takes his passage upon a railroad train, and after the train starts upon the road he gives up his ticket to the conductor, he can not, at an intermediate station, by virtue of his subsisting contract, leave such train while in the reasonable performance of the contract, and claim a seat upon an- other train.* A railroad company has a right to prescribe reasonable condi- tions for the admittance of way passengers upon its freight trains; and if it allows passengers thereon, may require payment of fare to its office agents, or procuring a ticket prior to taking passage on Buch trains.* Tickets are frequently sold for a price below the usual rate, and specifying on their face the conditions upon which the holder can use tbero . These conditions, unless they attempt to evade the responsi bi 1- (a) ,lfl_QiiD St. 419 ; 11 Id. 311. and pi 872, n. If ejected, pro (b) lg.QhioJt. 419; 11 Id. 311; 25 rata fare paid should be re- ' N. Y. 596; 1T..K. 205. funded. Id. lb. (c) 2a Ohio St. 215; 26 Id. 580; 32 (d) 11 Ohio St. 457. Id »45 Sae Kev. Stat., ? 3434, i72 BAILMENT. [CHAP. Carriers of passengers. itios or duties of common carriers of passengers, are valid. Tiius, where a railroad company sold a ticket which entitled the pur- chaser to ride upon its cars a certain number of times within a given period, for a price below the usual rate of fare, which ticket specified on its face that it was good during such period only, the purchaser, having failed to ride the specified number of times within the period named, is not entitled to ride upon such ticket after the expiration of the period.' Thoy are bound to provide coaches or cars reasonably strong and sufficient for the journey, with suitable equipments and train- men, and to make a proper examination thereof previous to each journey. They are bound to provide careful agents, of reasonable skill and good habits, for the journey ; and as to convej'ances by coach, they are bound not to overload the coach, or make it top-heavy with baggage or passengers ; and to employ horses which are steady, and not vicious, or likely to endanger the safetyof the passengers.^) As to carriers of passengers by railroad, they are bound to the most exact care and diligence, not only in the management of their trains and cars, but also in the structure and care of their track, and in all the subsidiary arrangements necessary to the safety of passengers.' Where persons undertake to convey passengers by the powerful and dangerous agency of steam, public policy and safety require that they should be held to the greatest possible care and diligence ;s and in such cases, ordinary care means the highest degree of care. In the next place, they are bound to receive and take care of the usual baggage, which it is customary to allow every passenger to carry for the journey. And in all these cases they are not only bound for their own acts, but for the acts of their servants and agents in their employ, and also, in cases of partnership, for the acts of their partners. (e) 25 Ohio St. 70. railroad company was held (f ) 4 Cush. 400. responsible for an injury by (g) See ante, 438; 14 How. U.S. 486; gross negligeroe to one who and see 2 Pet. U. S. 160 ; 3 held a free passage on the McLean, 22; 4 Porter, 234. road, Under the rule in the text, a (1) As to the duties and liabilities of stage-proprietors and stage-drivers, Rev. Stat., ? 4419 et seq.; as to passing from one oar to another while the train is in motion, see 30 Ohio St. 461. XXXVIII.] BAILMENT. 473 Carriers of passengers; Trains of passenger ears must stop upon each arrival at a station advertised as a station to receive passengers upon such trains, and at each arrival at a town containing over three thousand inhabit- ants, a sufficient length of time to get upon and off the train ; and if atij' accident happens to a passenger, or he is not able to get off or to get on to a train in consequence of the cars not stopping or not so stopping, the company will be responsible therefor ;' and, with the conductor and its agents, will be also liable to penalties.'' Carriers of passengers are not, like common carriers of goods, insurers against all injuries except by the act of God, or public enemies. Their undertaking is not an undertaking absolutely to convey safely, but to use the care, foresight, and diligen.ce which' prudent persons exercise under similar circumstances," and are not responsible for accidents where all reasonable care, skill, and dili- gence have been employed. The principle, grounded on public policy, which forbids common carriers to exempt themselves from liability for the consequences of their negligence in respect to goods, applies with equal force in the case of passengers. Common carriers of goods, however, are insurers, in some respect, of the safe delivery of goods, because the owner is not present and has no means of guarding his prop- erty from fraud while in the hands of the carrier. In respect to passengers, any special contract or limitation upon his care or re- sponsibility, affords the carrier no ground of defense for negligence. Even a gratuitous pass, with an indorsement thereon that the car- rier shall not be liable for any injury caused by the negligence of the carrier or his agents, will afford no defense against gross ncg- ligence.J Where the contract for the transportation of cattle provided that the drover should have a ticket, free of charge, going and returning, and a ticket purporting to be a free one was issued, it was held that the pass was not gratuitous, but formed a part of the freight contract: and that tberefore, like any other ticket, the duty of care in the transportation of the drover could not be avoided by any condition to that effect indorsed upon the ticket.'^ (h) Kev. Stat., § 3320. See 30 Ohio (j) 18 How. U. S. 486. See 19 Ohic St.. 222. St. 11. (i) 9 Wend. 85. 1 Wheat. Selwyn, (k) 19 Ohio St. 11. 301, note 1 ; 5 Cush. 69; 19 Wend. 534. 474 BAILMENT. [CHAr. Carriers of passengers. A common carrier of passengers and their baggage is respon- sible for the baggage if lost, althongh no distinct price be paid for its transportation ; and although they give actual notice to a trav- eler that his baggage is at his own risk.' They are al#o bound to deliver to such passenger his baggage at the end of his journey. They are liable for it until it is safely delivered, and a, forged order will not discharge them." It must be baggage strictly; that is, the ordinary and reasonable wardrobe for one in the pas- senger's station in life, together with such articles as are usu- ally carried for personal convenience, comfort, instruction, and protection. (1) The contract for the carriage of a person necessarily includes the wearing apparel upon him and such reasonable sum of money in his wallet, or on his person, or in his trunk, as might be in good faith carried with him for the expenses of the journey ; but the carrier is not liable for the loss of money in the possession of the passenger, and which he carries without notice to the carrier, for purposes unconnected with the expenses of the journey, althongh the loss is occasioned by the neglect of the carrier. If a passenger on a railroad, under the guise of baggage, carry merchandise packed up with his personal baggage, the company is (1) 10 Ohio, 145. (m) 26 Wend. 591 ; 19 Id. 251, 234. (1) 20 Ohio St. 260 ; 9 Wend. 85 ; 19 Id. 534; 5 Gush. 69; 13 111. 746; 38 Id. 219. A butter grocer of Chicago going into the country to buy butter, put two revolvers in his trunk, which was lost. In an action for the loss of the trunk and contents, the court thought the butter-man could have got along •with one revolver, and the jury having allowed him the two, the court reversed the judgment. 56 111. 212. Baggage includes materials to be worked into clothes for the traveler and his family, but not articles carried by him for others. 42 N. Y. 326 ; 56 Maine, 60. It has been held to include jewelry per- Bonally used by a lady, and placed with her wardrobe. 4 Bing. 218; 41 Miss. 178; 10 Ohio, 145; 4 E. D. Smith, 181. The company is not liable to either owner or agent, on its ordinary contract for the transportation of a passenger, for losing a valise delivered into its charge as his personal baggage, but which contained only samples of merchandise, and with its contents, was owned by a trader, whose traveling agent he was, to sell such goods by sample; nor in tort for the loss without proof of gross negligence. 98 Mass. 83. But if the car- rier knowingly undertakes to transport merchandise in trunks or boxes as bag- gage, he is liable since he is bound by his own contracts thus intelligently made. 8 Exch. 30 ; 3 E. D. Smith, 571. XXXVni.] BAILMKNT. 475 Carriers of passengers — Their rights. nol liable for tlio merchandise if the baggage is lost.? But if the merchandise be so packed as to be obviously merchandise to the eye, or the fact is made known to the company, the railroad com- pany will be responsible for the loss, in the absence of any bargaiii to the contrary.^ Where the baggage consists of fin ordinary traveling trunk, in which there is a large sum of money, such money is not considered as included under the term baggage^ so as to render the carrier re- sponsible for it. It seems, however, he would be liable' for a watch therein, the trank being considered a proper place to carry a watch." If a passenger during his journey keep his overcoat, cloak, or other article in his possession, and, upon going from the car, leave it behind, and it is lost, the company is not liable as a com- mon carrier ;' and at farthest only as a gratuitous bailee. If a passenger neglects to call promptly for his baggage when it arrives, the company is afterward responsible only as warehouse- men. In New York and Kentucky it has been held, that a trunk, left over night, works the change of responsibility." 2. The rights of passenger carriers. — As they are under obligations to carry passengers, and can not properly refuse them, when they have accommodations, so, on the other hand, they are entitled to be secure of their reward or compensation. They have, therefore, a right to demand and receive their fare at the time when the pas- senger engages his seat ; and if he refuses, they may fill up the place with other passengers, who are ready to make the proper deposit. The passenger carrier also has a. lien upon the baggage of the passenger for his fare or passage-money; but not on the person of the passenger or the clothes he has on, "When passengers, injured by the upsetting of a coach, have recovered against the proprietor, the damages assessed in such action can not be recovered by the proprietor from the turnpike road company for failing to keep the road in repair, which, in (p) 9 H. Lords, 536 ; 4 Q. B. 366; 10 301, note 1; 5 Gush. 69; IS Gush. 506; 44]Sr.Hamp. 325; 6 Wend. 534. Hill, 686; 98 Mass. 83. (s) 10 Ohio, 145. (q) 14 Eng. 0. 1,. 367. (t) 7 Hill, N.Y. 47; 6 0. P. 44. (r) 9 Wend. 85; 1 Wheat Selwyn, (u) 34N. T.548; 4 Bush, 184. 476 BAILMENT. [CHAP. Passenger and carrier vessels. some degree, occasioned the accident ; but a recovery may be had for the injury done to the coach." 3. Passenger and carrier vessels. — ^In the preceding remarks our attention has been principally drawn to the conduct of pa.ssengcr carriers on land. But there are some rules of an analogous natui-e, which have been adopted for the regulation and government of PASSENGER AND CARRIER VESSELS in inland navigation, which de- serve notice, as they may furnish grounds of responsibility or ex- cuse for losses, which have arisen in the course of their voyages, from' the accidents, or collisions, or rivalries of navigation. As to the collision of boats : In the first place, it may happen without blame being imputed to either party; as where the loss is occasioned by a storm. In that case, the loss must be borne by the party on whom it happens to light; the other not being responsi- ble to him in any degree. Secondly, a misfortune of this kind may arise, where both parties are to blame ; where there has been a want of due diligence or of skill on both sides. In such a case the rule of law is, that the loss must be apportioned between them, as having been occasioned by the fault of both of them. Thirdly, it may happen by the misconduct of the suffering party only ; and then the rule is, that the suiferer must bear his own burden. Lastly, it may have been the fault of the ship which ran down the other; and in this case the injured party would be entitled to an entire compensation from the other. Where there has been some fault or neglect, but on which side the blame lies is inscrutable, or left by the evidence in a state of uncertainty, the rule is to apportion the loss between the two vessels. In all cases of collision the essential question is, whether proper measures of precaution are taken by the vessel which has unfor- tunately run down the other. This is partly a question of nautical usage, and partly a question of nautical skill. If all the usual and customary precautions are taken, then it is treated as an accident, and the vessel is exonerated. If otherwise, then the offending vessel and its owners are deemed responsible. Some rules, however, which probably had their origin in the customs of navigation, are now adopted as positive rules of law. Thus, the law imposes upon the vessel, having the wind free, the obligation of taking proper measures to get out of the way of a vessel that is close (v) 11 Ohio, 197. As to passing under a bridge over the Ohio river, see 32 Ohio St. 116. XXXVni.] BAILMENT. 477 Innkeepers. hauled, and of showing that it has done so ; otherwise the owners will be responsible for any loss which ensues. Therefore, a vessel sailing with the wind must give way to one sailing hy the wind ; and the vessel sailing by the wind is not obliged to alter her course. Another rule is, that the master of a vessel entering a port or river, where other vessels are lying at anchor, is bound to make use of all proper checks to stop the headway of his vessel in order to prevent accidents ; and if from want of such precautions a loss ensues, he and his owners will be responsible. Another rule is, that when vessels are crossing each other in opposite directions, and there is the least doubt of their going clear, the vessel on the star- board tack is to persevere in her course, while that 6n the larboard is to bear up, or keep more away before the wind. And in respect to steamboats, as they do not receive their impetus from sails, but from steam, they are capable of being kept under better command ; and therefore it seems, from their greater power, they ought always to give way in favor of a vessel using sails only. Sec. XII. Oi' the eights, duties, and liabilities of innkeepers. Innkeepers arc bound to take care of the goods and baggage of their guests ; and they are responsible for the acts of their servants and domestics. If, therefore, the goods or baggage of his guest are damaged in his inn, or are stolen from it by his servants or domes- ties, he is bound to make restitution. And the innkeeper can not exonerate himself from this responsibility by a refusal to take any care of the goods, because there are suspected persons in his house, for whose conduct he can not be answerable ; for the law will not permit him thus to escape from his proper duty. It might indeed be otherwise, if he refused admittance to a traveler, because he really had no room for him, and the traveler, nevertheless, should insist upon entering and placing his baggage in a chamber without the innkeeper's consent. But an inkeeper is not, if ho has a suit- able room, at liberty to refuse to receive a guest who is ready and able to pay him a suitable compensation. On the contrary, he is bound to receive him, and if upon false pretenses he refuses, he is liable to an action. It is not necessary to prove that the goods have been lost by the negligence of the innkeeper; for it is his duty to provide honest servants and honest inmates, and to exercise an exact vigilance over all persons coming into his house as guests or otherwise. Nor 478 BAILMENT. [CHAft Innkeepers. is it necessary that the goods ebould be in his special keeping; hut it is generally sufficient, that they are in the inn. Eigorous as this rule may seem, and hard as it actually may be in one or two ]iar- ticular instances, it is founded on the great principle of public utility, to which all private considerations ought to yield. For travelers, who must be numerous in a rich and commercial country, are obliged to rely almost implicitly on the good faith of innhs.lders, who have frequent opportunities of associating with ruffians and pilferers, while the- injured guest could seldom or never obtain legal proof of such combinations, or even of their negligence, if no actual fraud had been committed by them. But innkeepers are not responsible to the same extent as common carriers. The loss of goods, while at the inn, will be presumptive evidence of negligence on the part of the innkeepei^r of his do- mestics. But he may, if he can, repel this presumption, and show that there has been no negligence whatsoever; or that the loss is attributable to the proper negligence of the guest, or that it has been occasioned by inevitable casualty, robbery, or by superior force. Thus, although a common carrier is liable for all losses oc- casioned by an armed mob (not teing public enemies,) an inn- keeper would not be liable for such a loss. It will be no excuse for an innkeeper iri case of a loss by theft, that he was sick, or insane, or absent from home at the time ; for he is bound, in such cases, to provide faithful domestics and agents. 1. Who are deemed innkeepers. — An innkeeper may be defined to be the keeper of a common inn for the lodging and entertain- ment of travelers and passengers, their horses and attendants, for a reasonable compensation. It must be a common inn — that is, an inn kept for travelers generally, and not merely for a short season of the year, and for select persons, who are lodgers. But it is not necessary that the party should put up a sign as keeper of an inn. But the keeper of a mere coffee-house, private boarding-house, or lodging-house, is in no just sense an innkeeper. 2. The rights and duties of innkeepers. — An innkeeper is bound to take in all travelers and wayfaring persons, and to entertain them, if he can accommodate them, for a reasonable compensation; and he must guard their goods with proper diligence. He has a lien upon the goods for his compensation. But the horse of a guest XXXVIII.] BAILMENT. 479 Innkeepers. can 1)6 detained only for his own meal, and not for the meal and expenses of the guest. 3. Who are to be deemed guests. — As inns are instituted for pas- sengers and wayfaring men, a neighbor or friend, who is no trav- eler, but comes to the inn at the request of the innkeeper, and lodges there, is not deemed a guest. But where a traveler comes to the inn, and is accepted, he beooraes instantly a guest. Where a person came to an inn with a hamper of hats, and went away, and left them there for two days, and in his absence they wore stolen, it was held that he was not to be deemed a guest. The length of time that a man is at an inn makes no diiference, so al- ways that he retains his character as a traveler. But if a person comes upon ^special contract to board, and sojourn at an inn, he e^( is not in the^ense of the law a guest, but a boarder. 4. As to their liability. — Innkeepers are liable only for the goods which are brought within the inn. If, therefore, an innkeeper, at the request of his guest, sends his horse to pasture, and the horse is stolen, the innkeeper is not, as such, liable for the loss. But if the guest does not request it, but the innkeeper does it ot his own accord, he is liable for the loss. However, it has been said that this rule requires some qualifications; for if it is the common cus- tom of the country (as it is, in the summer season, in some parts of America) to put the horse, in such a case, to pasture, the implied consent of the owner may be fairly presumed, if he knows of the custom. In the country towns in America, it is very common to leave carriages under open sheds all night at inns ; and also to leave the stable-doors open or unlocked. Under such circum- stances, if a horse or carriage should be stolen, it would deserve consideration how far the innkeeper would be liable, as the traveler might'be presumed to consent to the ordinary custom. A delivery of the goods into the custody of the innkeeper is not, in general, n(?cessary to charge him with them. Nor is it any ex- cuse for the innkeeper that he delivered to the guest the key of the chamber in which he is lodged, and that the guest left the chamber-door open. But if the innkeeper requires of the guest, that he should put his goods into a particular chamber under lock and key, and that then he will warrant their safety, and otherwise not, and the guest, notwithstanding, leaves them in an outer court, where they are taken away, the innkeener will be discharged. 480 BAILMENT. [CHAP. — — jt Innkeepers. Where the goods arc delivered at the usual place for such goods at the inn, the innkeeper is chargeable with them, although not strictly within the inn; as, if wheat in a sleigh is put into the outer house appurtenant to the inn, and used for such jjurposes, and afterward is stolen, the innkeeper is liable for the loss. But the innkeeper is liable only for the safe custody of personal property of his guest. He is not responsible for any tort or injury done by his servants or others to the person of his guest, without his own co-operation or consent. 5. What circumstances will exonerate an innkeeper. — By the com- mon law, as laid down in Cayle's case,'' an innkeeper is not charge- able, unless there is some default in him, or in his servants, in the well and safe keeping and custody of his guest's good^nd chattels within his common inn ; but he is bound to keep them safe without any stealing or purloining. This doctrine, however, is to be un- derstood with this qualification, that the loss will be deemed prima facie evidence of negligence; and that the innkeeper can not exon- erate himself, but by positive proof, that the loss was not by means of any person for whom he is responsible. The innkeeper, however, may be exonerated in divers other ways ; as, for example, by showing that the guest has taken upon himself exclusively the custody of his own goods, or has, by his own neglect, exj)08ed them to the p.eril. If a guest take his goods from his room and from the ordinary care and custody of the innkeeper, into his own exclusive custody and control, or in so doing, puts them in a place in the inn not des- ignated by the innkeeper, and unusual and manifestly hazardous, in either case the innkeepeer is not liable if they are stolen or lost.^ Any reasonable rules adopted by the innkeeper to secure the safety of the goods of guests, must, if known by guests, be com- plied with, and if the goods are lost solely by reason of the guest not complying with such known rule, the innkeeper is not respon- sible.^ lnnkee])ers are responsible for the loss of goods, only, when they have been received by them in that character. If they have be- (w) 8 Co. 32. (x) 18 Ohio St. 343. ZXXVIIII.] BAILMENT. 483 Telegraph oompaiueB. come bailees generally, they are then liable only according to the aature of the particular bailment or contract. Innkeepers may also limit their liablility for moneys, jewelry, etc., by keeping a safe and posting notices thereof in their house, as pro- vided by law.y Sec. XIII. Telegraph companies. So far as the transmission of messages by a telegraph company is concerned, the severe rules relating to common carriers are not applicable thereto ; the telegraph company being liable only for negligence or willful misconduct." Perfect accuracy and promptitude are not exacted, but they are bound to the ordinary care, accuracy, and promptitude usual with competent specialists in this kind of business." Ksuch ordinary care has not been exercised, and thus, by the neg- ligence of the company, an erroneous message has been sent, in consequence of which the receiver incurs loss, he is entitled to the proximate damages he has sustained.'' Eeasonable restrictions on the liability of the telegraph company, by notice brought home to the sender of the message, are valid ; and a notice printed on the paper, signed by the sender, has been held sufficient to restrict the liability of the company." The company, however, can not, by notice or stipulation, relieve itself from the consequences of its negligenc e, as above defined. But the company may limit, by notice, the time when the claim for damages shall be presented.* So far as the sender is concerned, the company may restrict their liability to repeated messages, but not so as to affect the receiver unless he had notice of the qualification as to the repeating of the message.* As to damages : the plaintiffs' message instructed their brokers to buy "five Hudson," and was transmitted buy "five hundred." The plaintiffs learning of the error, telegraphed to their brokers,. (y) See Eev. StaU H427. (o) 37 Mo. 472; 62 Penn. St. 83 j 1 (a) 41 N. T. 544; 45 Barb. 274; 13 Met. Ky. 164; 60 Maine, 9. Allen, 226; 15 Mich. 526; 35 (d) 62 Penn. St. 83. Penn. 298 ; 18 Md. 341 ; 1 Daly, (e) 13 Allen, 226 ; Whar. on Neg., 647. sec. 764, and cases there cited (b) 36 Penn. 298; 16 Mich. 525; 45 N. Y.649; 13 Allen, 226. 31 482 BAILMENT. [OHAJP. Telegraph companies. renewing the order by correcting it; but owing to the delay so occaeioned, the plaintiffs lost, by advance in the price of the stock BO ordered, thirteen hundred dollars. It was held by the court of appeals in New York, that this sum was the measure of their dam- .ages, to be recovered ; and it was intimated that the action could %ave been maintained, if no purchase had been made, on proof of tthe rise in value of the stock.' In case of failure to deliver the message, the company is liable ■for such damages only as naturally flow from the breach of con- itract, or such as may fairly be supposed to have been within the •■contemplation of the parties at the time the contract was made.s (f ) 44 N. Y. 263 ; and see 98 Mass. 232. (g) 30 Ohio St. 556. 3CXXIX.] BANKS AND BANKERS. 483 Provisions as to. CHAPTER XXXIX. BANKS AND BANKERS.(1) Foreign banks may sue in this state.' In all contracts for the payment of money to banks or bankers, sureties in fact, known to the parties to be such at the time such •contracts were made, may be proved to be, and must be considered^ ■sureties in all courts, and have all the privileges, and be subject to ..all the liabilities of sureties, anything in the contracts expressed to the contrary notwithstanding.'' The above provision of law is applicable to national banks. As to national banks, the act of Congress provides" that these 'banks may charge " interest at the rate allowed by the laws of the ■state or territory where the bank is located, and no more, except that where by the law of any state, a different rate is limited for banks of ■issue organized under state laws, the rate so limited shall be allowed ibr associations organized in any such state under this act ; and when no rate is fixed by the laiws of the state or territory, the bank may take . ... a rate not exceeding seven per centum ; and such interest may be taken in advance, reckoning the days for which the evidence of debt has to run. And the knowingly taking, re- •ceiving, or reserving or charging a rate greater than aforesaid, shall be held and adjudged a forfeiture of the entire interest which the •evidence of debt carries with it, or which has been agreed to be paid thereon. And in case a greater rate of interest has been paid, the person or persons paying the same, or their legal representatives,* may recover back in an action twice the amount of the interest (a) 12 Ohio, 132 ; Eev. Stat., § 7592. (c) Rev. Stat. U. S., ?2 1011, 1012. (b) Rot. Stat., g 5832. (d) 26 Ohio St. 141. (1) As to banker's lien on balances, etc., see post, title Libn, sec. 2. As to srights and obligations on checks and banker's checks, etc., see title Fbomibsopt -Notes, etc., sec. 19. 4.84 BANKS AND BANKERS. [OHA)Pr FroTisions as to. thus paid from the association taking or receiving the same ; pro- vided, that such action is commenced within two years from the- time the usurious transaction occurred. But the] discount or sale of a bona fide bill of exchange payable at another place than the place of such purchase, discount, or sale, at not more than the cur- rent rate of exchange payable at another pl^ce than the place of ipurchase, discount, or sale, at not more than the current rate of ex- change for sight drafts, in additiop to the interest, shall not be con- sidered as taking or receiving a greater rate of interest." Under the provisions of the above act, the Supreme Court of Ohia have held : 1. The discounting a note in this state by a national bank, at a usurious rate of interest, does not wholly avoid the note, but only to the extent of the interest."* 2. Under the provisions of state law (S. & C. 149, 168) limiting the rate of interest chargeable by banks in this state, national banks are limited to the rate of six: per centum ; and the statute author- izing contracts for interest at eight per centum, does not embrace banks.^ 3. The discounting of a note for the principal maker at a usuri- ous rate of interest, will not discharge the sureties, where there is. no intention to practice a fraud upon them, and in the absence of any express agreement or understanding that the note was to be tised only at a given rate of discount. In such case, the sureties- must be held to have trusted the principal as to the terms of usury npon which the note might be discounted. 4. Under the act of Congress, if a national bank charges more than six per centum, it forfeits all interest, accruing on the evidence of debt after maturity and before judgment thereon, as well as in- terest accruing before the maturity of such evidence of debt.' 5. Where new notes are taken at a lawful rate of interest under- euch circumstances that they became a payment and not a renewal- of previous notes which included usurious interest, lawful interest is recoverable on the new notes, and no .offset or deduction can be^ made in a suit on the new notes, on account of such usurious interest being included therein, in an action brought on the new notes after i;he expirartion of two years from the date of the payment of the old and previous notes.s (d) 22 Ohio St. 492. See note, p. (g) _22 Ohio St. 516. The excess can 823, Bev. Stat. not be applied as a payment it (e) 22 Ohio St. 508 , 34 Id. 142. the action is brought after twfc years, 26 Ohio St. 75. it.] BASTABDT. 4^5 Nttture of the proceeding. CHAPTER XL. BASTARDY. jSeo. I. The nature op the proceeding. II. The complaint on oath, warrant, and its servio*!. III. Continuance and proceeding thereon, with forms. IV. The examination of the complainant, with form. V. Compromise. VI. Proceedings if there be No compromise, with forms. viL Filing transcript in the court of common pleas. ^viii. Proceedings when the accused is not arrested. IX. Proceedings by the trustees of the township or infirm- ary DIRECTORS. X. Forms of docket entries. "Sec I. The nature op the proceeding. The proceeding may be in the name of the woman as plaintiff." "The prosecuting attorney of the county is not bound to attend to "the suit. The statute is in the nature of a police regulation ; and therefore the enforcement of the maintenance of the child by the imprisonment of the putative father is constitutional.'' The death of the child does not prevent the prosecution, if the mother is living, but may affect the amount of the recovery, and reduce the judgment." Nor will the fact of the marriage of the woman to a third person, pending the prosecution and before the .flhild is born, afford any defense to the putative father.'^ But if •begotten after the marriage it is a good defense.' The proceedings before the justice do not seem to be of a nature io admit of a trial or an examination of any witnesses except the : (a) See Wright, 566. (d) 21 Ohio St. 646. (b) 21 Ohio St. 353. (e) 30 Ohio St. 627. ' but the accused may appear in person, or by counsel, and make defense.' •Sec. V. Compromise. The statute provides : g 5617. If, during the examination before the justice, or at any time hefore judgment in the court of common pleas, the accused pay, or secure to be paid, to thS complainant, such amount of money or property as she may agree to receive in full satisfaction, and give bond to the State of Ohio, with sufficient -surety, to be approved by the justice, court, or judge in vacation, conditioned to save any county, township, or municipal corporation within the state free from all charges for the maintenance of such bastard child, the justice, court, or judge in vacation, shall discharge the accused from custody, upon payment of "the costs of prosecution ; but such agreement shall he made or acknowledged by both parties in the presence of the justice, court, or judge, who shall enter a memorandum thereof upon his docket, or cause the same to be made upon the journal.' Sec. VI. Proceeding if there be no compromise. If the case is not compromised, the justice to whom the com- plaint was made must bind the accused in a recognizance to ap- pear at the next term of the court of common pleas, with suffi- cient security,- in a sum not less than three hundred nor more than six hundred dollars, to answer such accusation, and to ^abide the order of the court thereon. The condition, " to abide (h) 9 Ohio St. 402. In the court of ( i) Eev. Stat., § 5624. common pleas, on the com- (j) Eev. Stat., § 5617. If the com- plaint, it seems that the ao- promise was obtained by fraud, cased is a competent witness it is, of course, void. 31 Ohio * in his own behalf. Id. lb. St. 522. 490 BASTARDS. [CHAP-- Forms for proceeding when there is no compromise. the order of the court thereon," relates to the order of tbe court touching the personal appearance of the accused, and not the final' judgment of the court in the case.' The recognizance may be in the form following : No. 98.] Form of recognizance for the appearance of the accused in the court of common pleas. Follow the preceding form^ ante p. 487, from its commencement to the asterisk, * and then proceed as follows : the court of common pleas next to be holden in and for said county of , on the first day of the term thereof, continue from day to day, and then and there answer to a complaint of A. B. against the said C. D. as be- ing the father of her bastard child, and abide the order of th» court thereon, then this recognizance to be void ; otherwise to be and remain in full force. [Signed,] C. D. [seal.] T. S. [seal.] J. M. [seal.] Taken and acknowledged before me, the day and year aforesaidr and sureties approved. ' G. H., j. p. If the accused neglects or refuses to find security for his appear- ance in the court of common pleas, the justice must cause him tcr be committed to the jail of the county, there to be held to answer the complaint. (1) The mittimus in such case may be in the form following : Wo. 99.] Form of. mittimus for the commitment of the accused to the jail of the county. State of Ohio, county, ss. To the keeper of the jail of the county aforesaid, greeting : Whereas, C. D. has been arrested and brought before me, G. H., a justice of the peace in and for said county, by warrant issued by me, on a complaint of bastardy, made against him by A. B., an un- married woman, and resident of said county; the said A. B. exam- ined in presence of said 0. D., and such proceedings had, that said" C D. was ordered by me to enter into recognizance, with security, (i) 23 Ohio^t. 331. See also 24 Ohio St. 177. (1) Bev. Stat., ? 6618. As to the discharge of the accused after being sent to- jail, see Kev. Stat., J 5619. As to suit on the recognizance, and amount of M- covery, see 29 Ohio St. 452. XL.] BASTARDS. 491; riling transcript — ^Proceedings when accused not arrested — By trustees, etc. in the sum of dollars, for his appearance at the next term of the court of common pleas of said county, to answer Ejaid accusa- tion, etc., which he hath neglected to do: Therefore, I command you, in the name of the State of Ohio, tc receive said C. D. into your custody, in the jail of the county afore- said, there to remain until discharged by due course of law. Given under my hand, this day of , a. d. 18 — . Gr. H., J. p. The accused may afterward be admitted to bail by a judge.J Sec. VII. Filing transcript, etc., in common pleas. "Within thirty days after the examination of the complainant, the justice must file with the clerk of the court of common pleas of the county, a certified transcript of the proceedings in the cause, together with the recognizance and all other papers therein.^ All- further proceedings in the case are had in the court of common pleas, and in the manner provided by the statute.' Sec. VIII. Proceedings when the accused is not arrested. If the return of the ofiBcer, on the warrant issued by the justice for 'the arrest of the accused, shows that the accused could not be arrested, the justice must, on demand, forthwith make a certified transcript of the proceedings had before him, including copies of the complaint and warrant, with the return thereon, and deliver the same to the complainant, her agent or attorney. The com- plainant, upon filing the papers with the clerk ' of the court of common pleas, may then proceed by attachment and garnishment in that court, and in the manner provided by the statute herein- before referred to." Sec IX. Proceedings by the trustees op a township or in- firmary DIRECTORS. The statute provides : § 5637. When a woman has a bastard child, and neglects to bring a suit for its maintenance, or commences a suit and fails to prosecute it to final judgment, ( j) Eev. Stat., § 5619. ( 1) Eev. Stat., ?? 5621-5637 ; 31 Ohio (k) Eev. Stat.; § 5620. St. 147. As to neglect to file,, (m) Eev. Stat., §§ 5681, 5632. see 26 Ohio St. 7. 492 BASTAEDS. [CHAP. Form of tond to trustees, etc. — Form of docket entries. ■ the trnstees of a township, or treasurer of a municipal corporation, interested in the support of such hastard child, or the directors of a, county infirmary in which she becomes a charge, when sufficient security is not offered to save such county, township, or municipal corporation from expense, may make com- plaint in behalf of such county, township, or municipal corporation, against him who is accused of begetting such child, or may take up and prosecute a -complaint begun by the mother of such child " JVo. 100.] Form of bond to the trustees of the township, when the case is compromised. Know all men by these presents, that we, C. D., T. S., and J. M., are held and bound unto the State of Ohio, in the sum of dol- lars, for the payment of which we jointly and severally bind our- selves. Sealed with our seals, and dated this day of , in the year . The condition of the above obligation is such, that, whereas, the above-bound C. B. has been arrested upon a warrant issued by G. H., a justice of the peace in and for said county, on the complaint -of A. B., an unmarried woman, for being the father of a bastard •child, [with which the said A. B. is now pregnant ; or say, if the fact he so, of which the said A. B. has been delivered;] and the said C. D. hath compromised with and satisfied' the said A. B. in the premises, in pursuance of the law. Now, if the said C. D. shall save every county, township, and municipal corporation within the state free from all charges to- ward the maintenance of said bastard child, then this obligation to be void ; otherwise, to remain in full force. [Signatures and seais-J Sec. X. Form of docket entkies. [Name of the woman.'\ A. B.-) C. D.) January 24, 18 — . A. B., an unmarried woman, and resident of the township of , in the county of , Ohio, this day made complaint under oath to me, as follows : [Here copy the complaint!\ (n) Bev. Stat., H 6637, 6638. XLi] BASTABDS. 493^ Form of docket entries. Same day issued a warrant, which is as follows: [Sere copy the warrant.'l Same day delivered said warrant to , constable of -^——town- ship, county. January 26, 18 — . With the body of said C. D., the constable re- turned the warrant, indorsed as follows : [Here copy the return of the constable.'] Fees : The complainant also present, who was duly sworn and exam- ined by me in presence of the accused, and the questions and^ her answers were reduced to writing by me, and read to and sub- scribed by her and filed, and which answers establish her com- plaint above set forth.* If the case is compromised, enter it as follows : Thereupon the complainant and accused both acknowledged, in my presence, that they had compromised the above accusation, as follows : \_Sere set forth the compromise, asthus :'\ C. D. executed his notes to A. B., with J. D. as surety, for the payment of the following sums of monej', at the times following, to wit : dollars on [etc., accord- ing to the terms agreed upon;] and the said A. B., then and there, in my presence, ackpowledged that she received said [noies] as a full satisfaction in the premises; and the said C. D. entered into bond to the State of Ohio, in the sum of five hundred dollars, condi- tioned as provided by law in such cases. Whereupon, the said C. D. paid the costs herein, taxed at dollars cents, and I discharged him out of custody. If the -case is not compromised after entry of proceedings to the asterisk,* proceed as follows: Thereupon, ordered by me that the accused enter into a recognizance, in the sum of hundred dol- lars, for his appearance at the next term of the court of common, pleas of county, to answer said complaint and abide the or- der of the court thereon. The said 0. D., with T. S. and J. M., en- tered into recognizance accordingly. [Sere enter the recognizance,. See form, ante, p. 490.] 494 BASTARDS. [CHAP. Form of dopket entries. If the fact be so, make the following entry after the entry of the order requiring the accused to enter into recognizance : The said C. D. neglected to enter into said recognizance, with surely, whereupon 'mittimus issued and delivered to C. C, constable, for commitment to jail of county. [ June 1, 18 — . Mittimus returned. [Bere enter the constables re- turn. Items of costs : SLI.] CONSTABLES. 495 The office of constable — Official bond — Vacancy, bow filled. CHAPTER XLI. CONSTABLES. Seo. I. The office of constable — official bond — vacancy, how FILLED. II. Appointment of constables by a justice of the peace. III. The general powers and duties of constables. IV. Actions against constables for misconduct, etc. V. Bights of sureties of constable or marshal. ;, The office of constable — official bond — vacancy, how filled. Constables are elected annually on the first Monday of April, at the township elections.* The trustees of the township determine the number to be elected." Constables hold their oflBces for one year, and until their succes- sors are elected and qualified. Every constable, before he enters upon the duties of his office, must take an oath, or affirmation, before a person authorized to ad- minister the same, to support the constitution of the United States and of the State of Ohio, and faithfully to discharge his duties as constable during his continuance in office, according to the best of his skill and ability.'' Every constable must take an oath of office, and give an under- taking to the State of Ohio, in a sum not exceeding two thousand dollars, nor less than five hundred dollars, with one or more sure- ties, resident in the proper township, such as the trustees thereof (a) Kev. Stat., ? 1448. See ante, p. 3, (b) Eev. Stat., g 2 Const., art. 15, as to election in cities where seo. 7. the township is merged in city, ' etc. 496 CONSTABIiES. [CHAP„ Appointmeiit by justice. shall approve, conditioned for the faithful and diligent discharge of his duties as such constable. (1) When the undertaking has been given 'to the satisfaction of the township trustees, the township clerk makes an entry of the same, and a record, and files the undertaking in his of&ce." A constable, and any other township officer, who, for ten days- after receiving notice of his election or appointment, fails to take the oath of ofSee, or, if bond is required, fails to give bond, will be deemed to have declined to accept, and the vacancy will be fiUed. as in other cases* Whenever a vacancy occurs in the oflSce of constable in any township, by death, removal, resignation, or non-acceptance of the person elected, or where there is a failure to elect, the township- trustees appoint a suitable person to fill such vacancy until the next annual election for constable, and until a successor is elected and qualified. The constable so appointed takes a like oath, and gives a like undertaking, as is required in other cases of constables.* Sec. II. Appointment op constables by a justice of the PEACE. A justice of the peace may appoint a constable or constables for (0) See ante, p. 7. (e) Eev. Stat, § 1451, 6683, 6684. (d) Eev. Stat., § 1455. (1) Eev. Stat., § 1516. The bond may be in the form following: Follow the form of the bond given, ante, p. 6, to the words, " whereas, the said G. H.,'' and from that point proceed as follows: Whereas, the said C. C. hath been duly elected and qualified as a constable in and for the township of , and county of , in said state, for the term of one year, from the day of April, A. D. 18 — , and until his successor shall be elected and qualified ; Now, if the said 0. G. shall faithfully and diligently discharge his duties as such constable, then this obligation to be void; otherwise to be and remain in full force.(l) [Signed,] ■ C. C. [seal.] E. P. [seal.] G. L. [seal.] The undersigned; trustees of said township of , hereby approve of the «aid E. F. and G. L., as sureties of C. C, constable, and the above bond is satis- factory. [Signed,] S. T., etc. April , 18—. (1) As to informalities in the condition, name of obligor, filing, accepting, etc., see 1 Ohio, 271; 2 Id. 409; 5 Id, 136; ante, p. 39, note; 25 Ohio St. 567; Rev. Stat., JJ 6, 7. JCLI.] CONSTABLES. 497 Appointment by justice. a special purpose, either in civil or criminal cases, whenever sucb appointment may become necessary, in the following cases : 1. When there is no constable in the township.* 2. In the case of disability of one of the regular constables in the township. 3. When the constable therein is a. party to the suit. 4. When, from the pressure of oflScial business, the constables therein are not enabled to perform the duties required by the oflSce. The justice making the appointment, must make a memorandum thereof on his docket," and require the person appointed to take an oath, as required in other cases. (1) The person so appointed by the justice, after taking such oath,, has the same authority, is subject to the same penalties, and en- titled to the same fees as other constables.' Such justice stands by law as surety, and is in that character liable, he and his sureties, for any neglect of duty, or any illegal proceedings on the part of such constable, so by him appointed.s A justice may also, at the request of a party, and on being satis- fied that it is expedient, specially depute any discreet person of suitable age, and not interested in the action, to serve a summons or execution, with or without an order to arrest the defendant, or to attach property. (2) The person so deputed has the authority (e) Bev. Stat., g 6685. (g) Rev. Stat., g 6687. (f ) Kev. Stat., ? 6686. (1) The docket entry, in such case, should state the cause of making the ap- pointment; thus: ^ March 16, 18 — . The constables of the township not being able, from the pressure of ofBcial business, to perform the duties required by the office; [after stating the cause of appointment, then proceed thus .•] I appoint I. J. constable, to [serve process in civil and criminal cases, naming the special purpose for which the appointment is made ;] and I administered to said I. J. an official oath as constable. (2) The indorsement on the process may be thus (Eev. Stat., ? 603) : I hereby authorize and depute L. C. to serve the within writ [or order]. Given under my hand, this day of , 18 — . G. H., Jus. Feaee within named. *Xl there he no constable in a township, a constable of any adjoining township may serve the process. Bev. Stat., $ 6683. As to appointment of constables in a township consisting of islands, see Bev. Stat., $ 616. 32 498 CONSTABLES. [CHAP, General powers and duties. of a constable in relation to the service, execution, and return of such process, and is subject to the same obligations ; but there'can he no fee for his services taxed in the bill of costs." The process should, in such case, be directed to the deputed per- son, and the docket entry should show to whom the writ or order •was delivered, and that he was specially deputed to serve the pro- •cess, by indorsement thereon. A justice may appoint special constables to keep the peace AV agricultural fairs."" So any justice of the peace may, upon the written application of any three freeholders of his township, appoint one or more Bpecial constables within such township, to watch and guard the property of said freeholders, and to protect it from all unlawful acts ; and in the discharge of their duty, they may make arrests. "The freeholders pay such constables for their services. The justice will make a memorandum of such appointment upon bis docket, and the authority will continue in force for one year, -unless sooner revoked by the justice.' Sec. III. The general powers and duties op constables. Constables are ministerial oflScers in justices' courts, in their re- Bpective townships, in civil cases, and in their respective counties, in criminal cases; and civil process may be executed by them throughout the county, under the restrictions and provisions of the law.J It is the duty of every constable to serve and execute all war- rants, writs, precepts, executions, and other process to him directed and delivered, and in all respects whatever, to do and perform all things pertaining to the office of constable.^ In discharging their duties, constables may call to their aid the power of the county, or such assistance as may be necessary.' It is the duty of every constable to make due return of all pro- cess to him directed and delivered, at the proper office and on the proper return day thereof; or, if the judgment be docketed in the common pleas, appealed or stayed, upon which he has an execu- tion, on notice, to return the execution, stating thereon such fact? His duty to pay over money collected has already been stated." (h) Eev. Stat., ? 8710. ( 1) Eev. Stat., § 6690. ( i) Eev. Stat., ?g 608, 609. (m) See ante, p. 311. (j) Eev. Stat., ? 6688. (n) Eev. Stat., § 6691. (k; Kev. Stat., i 6689. (o) Eev. Stat., § 604. «LI.] CONSTABLES. 499 General powers and duties. A constable, on the receipt of any writ or other process (subpe- nas excepted), must note thereon the time of receiving the same : ;;and also state in his return on the same, the time and manner of executing it." Constables are by law forbid to make a return on any process of " Not found," as to any defendant, unless he shall have been once, .at least, to the usual place of residence of the defendant, if such -defendant have any in the county." It is their duty to apprehend, on view or warrant, and bring to 'justice, all felons, and disturbers, and violators of the criminal laws ■of this state, to suppress all riots, affrays, and unlawful assemblies, which may come to their knowledge, and generally to keep tbo peace in their proper county.? In serving all process, either civil or criminal, and in doing his 'duties generally, when not otherwise restricted by law, the au- thority of a constable extends throughout the whole county in -which he may be appointed ; and in executing and serving process issued by a justice of the peace, he has, and may exercise the same .authority and powers over goods and chattels, and the persons of ^parties, as is granted by law to a sheriff or coroner, under like process, issued from courts of record.i They are required by law to retake and return to the peniten- tiary all convicts escaping therefrom.'' When any person charged with the commission of a crime or of- vfense flees from justice, a constable having a warrant for his arrest, ds authorized and required to pursue after and arrest such fugitive in any county of the state, and convey him before any magistrate -or court having cognizance of the case." Constables are required to arrest and detain persons found vio- lating any law, or any legal ordinance of any city or incorporated •village, until a legal wai-rant can be obtained.' When a constable takes the body of any person to the jail of the -county, he must deliver to the sheriff or jailer a certified copy of ithe execution, commitment, or other process, whereby he holds (n) Rev. Stat., g 6692. (s) Eev. Stat., § 7139 (o) Eev. Stat., ? 6693. (t) Eev. Stat., ? 7129. As to the pow- (p) Eev. Stat., § 6694. ers of special constables at (q) Eev. Stat., g 6696. As to fees, see agricultural fairs, see Eev. ante, p. 226. Stat., § 3711 et seq. As to at- »(r) Eev". Stat., J 7239. tending courts, see Eev. Stat., 2 487, 507, 553, 540. BOO CONSTABLES. [OHAB!- Actions againet for misconduct. such person in custody, and return the original to the justice who issued the same. The copy is sufficient authority to the sheriff or jailer to keep the prisoner in jail, until discharged by due course of law " He must serve and ret.uni process of the probate court.*" It is their duty to notify township officers of their election.^ Constables, upon receiving a warrant from the trustees, or the- clerk of the township, must notify the electors of a township of the time and place appointed for the annual township meeting, by setting up copies of the warrant in three public places in the town- ship, at least ten days before the meeting of the electors." It is their duty to preserve the peace at the township elections and meetings, and if the trustees order it, they must remove ov confine, until the close of the election or meeting, disorderly per- sons, and otherwise obey the directions of the trustees in relation- to preserving order and regularity." The trustees allow the con- stable a reasonable compensation for advertising the time of hold- ing township elections, and for notifyitig township officers of their election." When the laws for the prevention of cruelty to animals have been violated, humane societies organized to prevent cruelty ta animals may require a constable to take possession of an animal or animals cruelly treated, and to deliver the same to the proper offi- cers of such corporation.^ For such services his fees are the same as allowed for like ser- vices in other cases, to be paid by such corporation. Sec. IV. Actions against constables for misconduct in of- Fiqji, etc. The jurisdiction of justices of the peace does not extend to ac- tions against constables, for misconduct in office,y except when they fail to make return, or make a false return to process, or refuse- to pay over money collected or received in their official capacity .»^ For other official misconduct, the remedy of the party injured is by suit in the court of common pleas. If an execution is issued to a constable, and he suffers thirty days to elapse without making a true return thereof to the justice, and paying over to him, or to the party entitled, the money collected* (u) Eev. Stat., ? 6696. (x) Kev. Stat., ^ 3719, 3722 (v) Rev. Stat., ? 1453. (y) Rev. Stat., ? 591. (w) Eev. Stat., 55 1444, 1446, 1534. (z) Eev. Stat., ? 6698. (a) Rev. Stat., ? 540. XLI.] CONSTABLES. 601 Actions against for misconduct. ♦thereon, he is liable to the party in whose favor the execution is- sued for the amount thereof* So if a constable willfully and carelessly omits to levy on prop- erty within thirty days, or if the defendant be liable to be impris- oned under an order of arrest issued after judgment, then to ar- rest and commit him to the jail of the county within thirty days, he is liable to the party in whose favor the execution or order of urrest issued for the amount thereof* It will be observed, that in the cases above named, a recovery sfflay, in general, be had of the amount of the judgment upon "Which the execution or order of arrest issued. A constable is also liable for the amount of damages sustained 'by a party, with ten per centum penalty thereon, and costs, for faU- ■ing to make return, making a false return, or failing to pay over money by him collected or received in his official capacity, and such judgment must include, in addition to the damages and costs, the said penalty .'' In an action for a false return, though the return be untrue on its face, yet the of&cer making it is not liable, except for nominal •damages and costs, if the facts of the case truly stated would havo j)roduced the same result to the party complaining as the return •made." It may not be necessary to say here that if a constable receives 'Or collects money merely as an agent, and not in his official ca- pacity, and fails to pay it over, he is not liable for the above men- "tioned penalty. The action against a constable, under the above provisions of the sstatute, is brought in the usual manner, before any justice of the ;peace of the county. As to the liability of an officer for executing irregular or illegal •process, a ministerial officer, such as a sheriff or constable, can not 1)6 made liable for executing process regular on its face, and issued ■t)y an officer or court having jurisdiction of the subject-matter.* "Thus, an attachment issued without affidavit justifies the officer.* (a) Eev. Stat., g 6668. Wright, 709, 714; 16 Wend, (by" Eev. Stat., ? 6608. 562 ; 5 Id. 170. (c) 1 Wend. 48. (e) 7 Ohio (pt, 2), 183; see ante, p. s) 34 (x) 81 Ohio St. 579. 530 coronee's inquest. [chap. Who may act as coroner — Duties of coroner. CHAPTER XLIV. COKOlifER'S- INQUEST. "Whenever the office of coroner becomes vacant, in any county, hy death, resignation, expiration of the term of office, or other- wise, or if the coroner is absent from the county, or unable from sickness or other cause to discharge the duties of his office, or re- side more than ten miles distant from the place where the dead body of any person supposed to have come to his or her death by violence or casualty, may be found, any justice of the peace of the county is by law vested with all the powers, and must perform all and singular the duties appertaining to the office of coroner, so far as it respects the power and duty of a coroner to hold inquisi- tion over any dead body found as aforesaid. And when acting in the capacity of a coroner, every such justice is entitled to the same fees as are or may be allowed by law to coroners in sucli cases.' It therefore becomes necessary to point out the duties of a cor- oner, when holding an inquest upon a dead body. Whenever information is given to a coroner, that the dead body of any person supposed to have come to his or her death by violen ce, has been found within his county, he shall appear forthwith where the body is, and issue subpenas for witnesses, administer oaths, and proceed to inquire how the deceased came to his death, by violence or otherwise, and all the circumstances, and who were the princi- pal and accessories before or after the fact. The testimony must be reduced to writing, and signed by the respective witnesses, and, with the finding of the coroner, returned to the clerk of the court of common pleas. If he deems it necessary, he will also take the recognizances of witnesses in such sum as he deems proper for their appearance at the next succeeding term of the court. He may re- quire the witnesses to give security for their appearance, and may commit them to the jail of the county, if they neglect to do so.*" (a) Bev. Stat., g 620. (b) Kev. Stat., g 1221. ». XLiv.] coroner's inquest. 531 Duties of coroner. The coroner must draw up his findings of the facts in writing, and subscribe the same. If he finds that the death was by force or violence of another who is present, the coroner must arrest and take the accused before a justice for examination ; or if the accused is not present, the coroner must give notice to a justice and the prosecuting attorney, so that a warrant may be issued. Of course a justice acting as coroner may issue as justice the proper warrants, and give the prosecuting attorney notice.'' The coroner may issue any writ required by the statute to any constable of the county, or if, in his opinion, the emergency re- quires it, to any discreet person of the county ; and if such person or a constable fail to serve the same, he will forfeit, and will be lia- ble to pay a fine of twenty-five dollai's, which may be recovered on complaint of the coroner, before any court having jurisdiction thereof The coroner is liable also to indictment and fine of not exceeding five hundred dollars for neglecting or refusing to per- form any of the duties required of him by law." The return should describe the body of the deceased, and name, age, sex, residence, place of nativity, color of the eyes, hair, marks, and all other particulars of identification. An inventory should also be made of all articles found on or about the person, describing the same as minutely as can conveniently be done ; also all mon- eys, specifying the amount, kind, and denomi nation. "* The in- ventory and property must be delivered to the probate judge.' Immediately after the inquest is closed, the coroner, if the -friends or relatives of the deceased ai-e known, must give them notice by letter or otherwise; or, if unknown, must advertise in one news- paper of the county, stating the death, the finding, and describe substantially the property mentioned in the inventory.' The inventory and the description of the body must be made out separately from the finding as to the death.s The fees of the coroner are : For view of dead body, three dollars; for traveling to the place of view, each mile, ten cents; (b) Rev. Stat., g 1222\ (g) Eev. Stat., § 1226. The meaning (c) Eev. Stat., g 1223. of the section is doubtful, but (d) Eev. Stat., g 1224. the old law indicates its con- (e) Eev. Stat., g 1226. struction. See S. & C. 1414, (f )' Eev. Stat., g 1225. see. (28) ; 1406, sec. 30. 532 coeonee's inquest. [chap. Forms of subpena and depositions taken at the inquest. for drawing and returning all necessary papers, each hundred • words, ten cents.'' FOEMS. \ Form of subpena. The State of Ohio, township, county, ss. To any constable of said township, greeting : Tou are hereby commanded to summon A. B. to appear before me, at [here describe the place where the inquisition is held], in said township, on the day of , in the year , at o'clock A. M. [or, forthwith], to give evidence before an inqui- sition, then and there tn be held, upon the dead body of a person there lately found. Hereof fail not under the penalty of the law ; and have you then and there this writ. Given under my band and seal, this day of , a. d. 18 — . i[SEAL.] G. H., J. p. of said township, and coroner of said county for the time being (A.) Form of depositions taken at the inquest. The State of Ohio, township, county, ss. An inquest by the undersigned, held on the day of , in the j'ear , at [here describe the place where the inquisition is held], in said township, over the dead body of S. T. [or, if the name be unknown, say, of a certain person], who was supposed to have come to his death by violence. The un- dersigned, G. H., a justice of the peace in and for said township, then and there acted as coroner, there being no coroner of said county. The following is the testimony of the witnesses then and there examined before me : A. B., being duly sworn, testified as follows : [Here set forth the testimony of the vbitness. Bead it to the witness, and then let him giqn it.'] [Signed,] A. B. (h) Rev. Stat., i 1239. XLiv.j cohonek's inquest. 533 Form of inquisitidn. C. D., being duly sworn, testified as follows : l_Add at the end ;] The above depositions of the said A. B. and C. D. were reduced to writing by me, each subscribing their respective depositions in my presence. [Signed,] G. H., J. p., and coroner for the time being of said county. (B.) Form of inquisition. The State of Ohio, township, county, ss. Be it remembered, that on the' day of , in the year ■ there then being no coroner of said county, information was given to me, G. H., a justice of the peace in and for said township and county, that the dead body of A. B. [or, a person supposed to have come to his death by violeuce,] had been there lately found at [here describe the place'], in said township and county. Thereupon I went to the place where said body was found, issued subpenas for the following named witnesses, to wit [name them], and delivered the writ to C. C, constable of said township, who made return as follows : [Here copy return.'] On the same day, I there examined said witnesses, and H. H. [naming all the witnesses], after being duly sworn, and reduced their testimony to writing, which is herewith returned, marked A. After hearing said testimony, and examining the body, I do find that [here state fully the facts and, circumstances relating to the death, which are proved to the satisfaction of the justice, and, if from vio- lence of any person, state by wjiom, whether as principals or accessaries before or after fact ; or, if unknown, so state, as thus:] The deceased came to his death by [drowning in, etc., stating the circumstances as far as known ; or say, by the visitation of God, in a natural way, and not by means of any violence ; or say, from being thrown from his wagon while his horses were running away, and receiving three mortal bruises and wounds on, etc., here state all the circumstances concerning his death.] I do further find that one L. S. was con- ccrr.ed in the perpetration of said violence and death, as an acces- sory before [or, after] the fact. [Dctte.] [Sign as above.] 534 coroner's inquest. [chap. Inventory — Return of description of deceased — Recognizance of witness. (0.) Inventory. To the Probate Judge of county, Ohio : The following is an inventory, as required by section 1224 of Eevised Statutes, of all articles of property and moneys found Dn the person [of A. X., or say, whose name is unknown], upon whose dead body I held an inquisition, on diiy of , filed in the court of common pleas of said county, to wit : \_Here describe all the articles of 'property found on or about the person, and describe as minutely as can conveniently be done; also all moneys, specifying amount, kind, and denomination.'] [iJate.] [Sign as above.'] (D.) Return of description of the deceased. Upon view by the undersigned, and testimony relating to the decease of a certain person, taken on the day of , 18 — , inquisition whereof and finding is herewith returned, marked (B), together with the depositions then taken, marked (A), I do find, as part of said inquisition, the following to be a description of the body over which said inquest was held, to wit : Name : [Fill the blanks.] Age: Sex: Hesidence : Place of nativity : Color of the eyes : Color of hair : Marks : [Add to this all other particulars which may assist in identifying the person.] [Date.] [Sign as above.] Form of the recognizance of a witness. The State of Ohio, township, county, ss. Be it remembered, that on the day of , A. D. , be- fore me, G. H., a justice of the peace in and for said township and XLIV.] COEONfiR'S INQUEST. . 535 Becognizance of witness. county, acting as coroner for the time being, personally appeared A. H. and J. S. [the surety^, who acknowledged themselves to owe the State of Ohio the sum of dollars, to be levied upon their goods and chattels, lands and tenements, upon this condition : that if the said A. H. shall appear, on the first day of the next term of the court of common pleas, to be holden in said county, to testifj- as to his knowledge of the circumstances relating to the decease of C. D. [or, if the name of the deceased is unknown, say, a person], who is supposed to have come to his death by violence, continue from day to day, and not depart the court without leave, then the above recognizance to be void ; otherwise to be and remain in full force in law. [Signed,] A. H. J. S. Attest : G. H., j. p., and coroner for the time being of said county. 636 ELECTIONS. [chap. Mode of 6CJiite^t!ifg, &iL& forms therefor. CHAPTER XLV. ELECTIONS. Sec. I. Op the mode of contesting elections, and forms theee- FOR. II. Of opening and certifying the returns of an election — TIE vote. III. Form of oath to be administered to the glere and judges of an election. Sec. I. The mode of contesting elections, and forms therefor. Two justices have power, and are authorized and required by law, to take testimony in relation to any contested election of a county officer, or member of the senate or house of representa- tives, for the county or district in which such justices reside." The coutestor must be an elector of the county or district from which the person whose election is contested is returned to serve." And he must give notice, in writing, to the latter, or leave a writ- ten notice at the house where he last resided, within thirty days after the day of the election, expressing the points upon which the election is contested, and the names of the two justices of the peace who will officiate at the taking the deposition, and when and where they will attend to taking the same. The notice must be served not less that) ten nor more than twenty days before the day pointed out therein for the taking of depositionB.''(l) The justices, or either of them, are authorized to issue subpenas (a) Kev. Stat., 2997, 3008, et seq. (1) Form of notice for taking d^osiiions, etc., to contest an election. To l?iete insert the name of the person whose election is contested.'] I shall contest the validity of your election to [Aere tiame the office to which the candi- date is elected,] upon the following grounds : 1. [Here state all the points upon XLV.] ELEOflONS. 537 1 ■■ :^ . Deposition^, etc., to' contest &tx elcbtion. for witnesses whose teStiWony may be requii-e'd by either of the parties,'' and enforce by imprisonment the production of papers. ''(2) A copy of the notice must be delivered to the justices. The tes- timony must be confined by them to the points of contest specified in the notice." It will be proper for the depositions Ui Coiitalin proof that the contestor is an elector of the county, and that he gave due notice of the contest. Form of depositions taken to contest an election. We, G. H. and L. S., two justices of the peace in and for the county of , in the State of Ohio, do hereby certify that, pur- suant to the notice hereunto annexed, and at the time and place, and before us, the said justices therein mentioned j the following named witnesses came j and being of lawful age, and first duly sworn to testify the truth, the whole truth, and nothing but the truth, in the premises, testified as follows: X. L., being first duly sworn, as aforesaid, deposeth and saith that, etc. Ihere set forth the evidence of the witness^ Questions by the contestor, J. C. Question. ? Answer. . Questions by 0. C. \the person whose election is contested^ Question. 1 Answer. . And further, the deponent saith not. [Signed,] X. L. (d) Kev. Stat., §§ 2998, 2909. (e) liov. Suit., ? OOOO. which the election is einteUed, and theii proceed with the notice, as follows ;] Tes- timony and depositions will be taken by me, relating to the above matters, be- fore G. H. and L. S., two justices of the peace of county, on the day of , in the year , between the hours of o'clock a. m. and' o'clock p. M., at [the ofBce of the said G. H.,] in the township of — — , in said county I and if nfeoessairy, I shall continue from day to day thereafter, between the hours aforesaid, to take testimony before said justices at said place, until the day of , a. d. 18 — , inclusive. Dated, , etc. [Signed,] J. C. (2) The subpena requires the witness " to give testimony, and the truth to speak, in relation to the validity of the election of, 0. C. to the oflSce of ," etc. See the form of a common subpena, page 92. See duces tecum, page 93, note 1. 538 ELECTIONS. [chap. Opening and certifying returns of an election. G. S., being also first duly sworn, as aforesaid, [etc., proceeding in like manner with all the witnesses, and then add the following :] We, the said justices, do further certify, that the above testimony was reduced to writing by us, [or say, by Gr. H., the justice above mentioned,] and that the said several witnesses, at the said time and place of taking said testimony, subscribed their names to their respective depositions. ^In testimony whereof, we have hereunto set our hands and seals, this day of — ' — . in the year . G-. H, [seal.] L. S. [seal.] The justices should seal up thejdcpcfiitiops, notice, and docu- ments, and address them to the speakeB oi the senate, if the con- test is in relation to a senator; or to- the speaker of the house of representatives, if the contest is in relation to that body ; or to the court of common pleas, on or before the second day of their then next term, if the contest is in relation to county offices, etc' On the envelope, write the following certificate : Sealed up, and addressed, and transmitted by us. Nov. — , 18 — [Signed,] G. H. L. S. Justices within named. The papers may be transmitted by the contestor. Sec. II. Op the opening and certieyinq the eeturns of an ELECTION — TIE VOTE. On the sixth day after a general election for members of the gen- eral assembly, etc., or sooner, if all the returns are made, the clerk of the court of common pleas of the county, taking to his assist- ance two justices of the peace of the same county, opens the sev- eral returns of the election, which have been made to his office, and makes abstracts thereof, which are certified and signed by the justices and clerk'.s In making the abstract of votes, the justices and clerk have no power to decide on the validity of the returns, but must be gov- erned by the number of votes stated in the poll-books. No paper, however, can bo received as a poll-book, unless delivered at the (f ) Eev. Stat., §§ 8000, 300.4. (g) Kev. Stat., ? 2980. XLV.] ELECTIONS. 539 Decision of tie vote by lot — Form of oath to judges and clerks. clerk's office by one of the judges of the election held in such pre- cinct.'' If any number of persons greater than the number of the county offices directed to be filled, are equal in votes, the clerk and justices, or judge and justices, as the case may be, must determine by lot which of the persons shall bo duly elected. At any election for senator, or representative to the general assembly, if there be no choice in any instance, on account of two or more perbons receiving an equal number of votes, the clerk of the court issuing the certifi- cate of election, and county auditor, with two justices of the peace of the county, must publicly determine by lot who of those having such equal number of votes shall be elected. This decision by lot, must bo made in the office of the clerk at 10 o'clock a. m. on the eighth day after such election.' Sec. III. Form: op oath to be administered to the judges and CLERKS OF ELECTIONS.J You do solemnly swear, in the presence of Almighty God, the searcher of all hearts, that you will faithfully perform the duties of a judge [or clerk, as the case may 6e,] of this election, according to law, and the best of your abilities ; and that you will studiously endeavor to prevent fraud, deceit, or abuse in conducting the same — as you shall answer to God. (h) Rev. Stat., § 2981. (j) Eev. Stat., § 2935. ( i) llev. Stat., \ 2993. 540 FORCIBLE ENTKY ANB DETENTION, [CHAP. In wUat cases the action may bo brought. CHAPTER XLVI. FORCIBLE ENTRY AND DETENTION". Sec. I. In what cases the action mat be BROuaHT. II. Within what time to be brought. iii. When to be brought. rr. The notice to leave the premises, and its form and SERVICE. V. The written 6omplaint of the plaintiff, with forms. VI. Issuing, service, and return of the summons. vii. Proceedings after process issued. 1. The return of the summons. 2. Adjournment of action, and undertaking. viii. Of the evidence, etc., when the suit is against a tenant foe holding over his term. IX. Evidence, etc., when the plaintiff claims as purchaser under an exhcution. ^. Evidence, etc., when the plaintiff claims as purchaser FROM an executor, ADMINISTRATOR, OR GUARDIAN, OR ON SALE IN PARTITION. XI. Evidence, etc., when the defendant is a settler or oc- cupier WITHOUT ANY COLOR OF TITLE. XII. The trial bt the justice. XIII. The trial by a jury, verdicts, exceptions, etc. XIV. The writ of restitution, its service, and return. XV. Docket entry. Sec. I. In what ca^es the action may be brought. This Is a summffry proceeding to obtain possession of lands or tenements. It is regulated by statute," and can be had in the fol- lowing cases, namely : 1. Against tenants holding over beyond their term. 2. By the purchaser of real estate, on executions, orders, or other (a) Bev. Stat., J 6599. et seq. As to action on forfeiture of lease under the liquor law, see ante, p. 19 ; 27 Ohio St. 669 j 26 Id. 375 ; 25 Id. 853. XILVI.] FOUeiBLE EJfTBX ANB DETENTION. 541 "Within .ipl»*t time to te feroiight. judicial process, when the judgment debtor was in possession at the time of the rendition of the judgment or decree, by virtue of which such sale was made, after such sale shall have been exam- ined by the proper court, and by such court adjudged lega,l. 3. By the purchaser at sales by executors, administrators, guard- ians, and on partition, where any of the parties to the partition were in ppgsesaion %t the commeDceroenti ©■f the suit, after such sales, so made, shall have been examined by the proper court, and the same by said court adjudged legal. 4. In cases where the defendant is a settler or occapier of lands or tenements, without color of title, and to whiph the complainant has the right of possession- 5. And, generally, as well against those who make unlawful and forcible entry into lands and tenements, and detain the same, as against those who, having a lawful and peaceable entry into lands or tenements, unlawfully, and by force, hold the same. Sec. II. Within what time to be brought. An action for the forcible entry ^and deteution, or forcible detc!)}- tion only, of real property, can only be brought within two years after the cause of such action shall have accrued.'' /" If two years ba in the co.unty of : The under^gned, A. B., a resident of the county of , Ohio, doth hereby make his complaint to you, against one C. D., for this : That the said C. D.* did, on or about the. day of , in the year , unlawfully and forcibly, and with a strong hand, enter, and hath ever since, and doth still, unlawfully and forcibly, and with a strong hand, detain from the possession of the undersigned, the following premises, situate in the. township of , in the county of , and described as follows : [S^re describe the premises with such certainty as will apprise the defendant of what is demanded, and will afford a guide to the sheriff', in executing the writ. of restitution. The following description would be sufficient : "About three acres of land, with a cabin thereon, bounded on the north by lands now or lately occupied by J. Gr. ; on the east, by the highway ; on the south, by land now or lately occupied by W. S. ; and on the west, by land now occupied by the undersigned."- So, a description of the following kind would be sufficient: "About - ten acres of land, now in the possession of the said 0. D., being the two fields, under fence, situate in the northeast corner, and part and parcel of the homestead farm of the undersigned ; and which homestead farm is situated in range twenty-two, township five, .section five, refugee lands, and bounded and described as fol- lows : \here copy the boundaries from the deed of the farm.'] [After giving a particular description of the premises, add the fol- lowing, if the complaint is for an entry or detention with force and strong hand .-^ The undersigned, at the time of said entry, and ever since, hath had the right to the possession of said premises. On the day of , a. d. 18 — , the undersigned served upon the (d) 2 Ohio, 256. A complaint alleg- dersigned possession," etc., of ing that A. " has ever since the the premises, is sufficient to first day of January, 1875, un- give the justice jurisdiction of lawfully and forcibly detained, the case. 25 Ohio St. 260. and still detains from the un^ (e) Eev. Stat., § 6603. 544 POROIBIiE ENTRT A»B DETENTION. [C^A.V. jPo^DDiS pf complaint. said C. D., as required Jjy laWi notice in writinig to l^a-ve eaid prem- ises.f The undersignad asks process and restitution, etc. Paled this day of , a. d. 18^r. [Signed,] A. B. Jf the complaint is against a settler without color of 4itle, malie out the complaint as in the preceding form, with this addition: at the f in the preceding, add the following: The said C. D. is a settler as afore- said, on said premises, without any color of title. 2. Form of complflint, by purchaser on execution, for a forcible de- tention. [Commence and proceed as in the preceding form. No. 1, to the*, and from that point proceed as follows:"] hath, ever since the day of , in the year , [fill up the blanks with a day and year subsequent to the execution of the deed by the sheriff,"] and still doth unlawfully and forcibly detain, from the possession of the undersigned, the following premises, situate in the township of , in the said county of , and described as follows: [here describe the premises by metes and bounds, f from the deed of the sheriff."] And which said premises were, by virtue of an execution issued upon a judgment rendered against the said C. D., in favor of , at the term of the court of common pleas, [or district court, as the case may be,] in and for said county of , [the deed of the sheriff will show the facts, by which the above blanks can be filled,] duly sold to the undersigned. Said sale has been examined by said court of common pleas, and adjudged legal; and a deed duly executed to the undersigned, by the sheriif of said county, ac- cordingly. At the time of the rendition of said judgment, the said C. D. was in possession of said premises. On the day of , in the year , the undersigned duly served on the said C. D., as required by law, notice in writing to leave said premises, The undersigned asks process and restitution, etc. Dated this day of , a. d. 18 — . ^ [Signed,] " A.B. XliVI.] POBCIBLI ENTET AND DETENTION. 545 forms of complaints. 3. Form of complaufit hy purc^ser at executor's, administrator's^ m guardian's sale. Follow the directions and the preceding form to iM f, and from that point proceed as follows: And which said premises were, on petition and by order of the court of probate of said county, duly sold by A. A., [administra- tor; or say, executor of the estate of D. D., deceased; or say, guard- ian of D. D., a minor, as the case may be,] to the undersigned. Said sale hap been examined by said probate court, and adjudged legal,, and a deed executed to the undersigned, by said A. A., accordingly. The said C. D. was one of the parties to said petition, and was m possession of said premises at the commencement of the said suit by petition, etc. On, [etc., here state the service of the notice to leave, etc., as in the preceding form.] 4t Form of complaint by purchaser on partition. Follow the directions and the preceding form, No. 2, to the f, and from that point proceed as follows : And which said premises were, by order of the court of common.' pleas of said county, 0*1 petition in partition, duly sold by the sher- iff of said county to the undersigned. Said sale has been exam- ined by said court, and adjudged legal, and a deed duly executed to the undersigned, by said sheriff, accordingly. The said C. D. was one of the parties to said petition, and was in possession of said premises at the commencement of said suit in partition. On, [etc., here state the service of the notice to leave, etc., as in the preced- ing form. Mo. 2.] 5. Form of complaint by a landlord against his tenant. Commence and proceed as in the f receding form. No. l,to the *,and from that point proceed as follows: Hath ever since the day of , in the year , [fill these blanks with some day after the lease expired^ and doth still, unlawfully and forcibly detain, from the undersigned, possession of the following premises, situate in Che townshipTif , in said county of , and described as fol- lows : [here describe the premises as particularly as is directed in the preceding form, No. 1, and then proceed as follows ;] The said C. D. entered upon said premises, as the tenant of the undersigned ; the 35 546 rORCIBLE ENTRY AND DETENTION. [CHAP IsBuing, service, and return of summons — Proceedings after process issued. lease therefor expired at the time herein first mentioned ; and from that time the said C. D. hath unlawfully and forcibly held over his said term. On the day of , in the year , the undersigned duly •served upon the said 0. D., as required by law, notice in writing, to leave said premises. The undersigned asks process and restitu- iion, etc. Dated this day of , a. d. 18 — . [Signed,] A. B. Sec. VI. Issuing, service, and retttrn op the summons. The complaint, as has already been stated, must be filed before the summons issues. It takes the place, and is in fact the b ill of p ar- ■-ticalars of the plaintiff. The summons is issued, directed, served, and returned as in other •actions.e The cause of action must be stated in the summons by stating the cause of complaint, and may be thus : " for the [forcible •entry upon and the detention, or say forcible detention, as the case may be,"] of certain premises from the said A. B." The summons can; be readily made out from the common form ■given in a preceding chapter."^ It must be served three days before the day set for trial.s Thus, •service on Monday for trial on Thursday is sufBcient.' Any constable of the county can serve the summons. Sec. VII. Proceedings after process issued. 1. The return of the summons. — Previous to the trial, and on or before the day appointed therefor, the summons should be returned. If the return to the summons shows that it was not served upon the defendant three days before the day of trial, and the defendant •fails to appear, or appearing, makes this objection before the jury are sworn ; in either event, the action must be dismissed without prejudice to a new action. But if, in such case, the defendant ap- pears, and the jury are sworn, he can not afterward take advantage ■of this error. By appearing, and permitting the trial to commence, without objection, he waives the objection. "When the writ is not «erved three days before the trial, owing to the negligence of tho (g) Kev. Stat., ? 6604. (i) 16 Ohio St. 408. (h) See ante, p. 48. / ■XLTI.] FORCIBLE ENTRY AND DETENTION. 547 Evidence on the trial. -ofiScer, he renders himself liable to the plaintiff, who can recover ffcy suit the damages he has sustained. 2. Adjournment of action and undertaking. — ^No continuance can be granted for a longer period than eight days, unless the defend- ,ant applying therefor shall give an undertaking to the ad\ferse party, with good and sufficient surety, to be approved by the jus- ■tice, conditioned for the payment of the rent that may accrue, if judgment be rendered against the defendant.' The undertaking may be in the form following : Form of undertaking of defendant, etc.', when action adjourned. A. B., plaintiff, ") Action for [forcible entry and detention, or say V. [■ forcible detention, as the case may be.'] Before 'C. D., defendant, j G. H., J. p. of ^township, county, Ohio. In consideration of the continuance of said action beyond the period of eight days, on the application of said 0. D., we bind our- -.selves to the plaintiff, A. B., that if judgment be rendered therein .against the defendant, we will pay the rent that may accrue upon ^the premises in controversy in said action. C. D. E. F. Taken by, and signed and acknowledged, and surety approved sby me, this day of , a. d. 18 — . G. H., J. p. Sec. Vin. Of the evidence, etc., when the suit is against a TENANT FOR HOLDING OVER HIS TERM. If the plaintiff produces the lease, and proves its execution,* and it appear therefrom that the lease expired before suit brought, the nlaintiff is entitled to a verdict ; unless it appear, from the proofs ■^ of the defendant or otherwise, that the term of the lease was ex- tended by agreement,- and had not expired at the time when the action was brought. If there was a written lease, neither party can be permitted, if the other object, to give evidence by witnesses, of its contents ;. unless a foundation is laid for such verbal evidence, in the manner Sieretofore stated.' If the plaintiff proves that the defendant went into possession of ( j) Eev. Stat., ? 6606. ( 1) See ante, p. 163 et seq. (k).See ante, p. 152 et seq. 648 FOECIBLE ENTET AND DETENTION. [CHAP: Evidence on the triaL the premiBes as his tenant, it will be no defense, nor ought the de- fendant to be permitted to prove that the plaintiff had no title. If the defendant has procured a good title from a stranger, he can not- eet it up against his landlord. A tenant is not permitted to dis- pute the title under which he himself is in possession. He may, however, show that he did not enter under, or that he is not in feet, the tenant of the plaintiff; or that his landlord's title expired, aftei the making of the lease,™ or had been transferred by sale on exe- cution or by operation of law. If the lease was not in writing, but a mere verbal contract, it is binding on both parties, provided the tenant took possession under it, precisely as if it was executed according to the prescribed rul»» of the statute." If, however, a verbal contract for a new or supplemental lease- between a landlord and a tenant, is made before the expiration of a written lease, under which the tenant is in possession, such verbal contract will be within the statute of frauds and void, because not in writing; for the continued possessioti of the tenant is as well referable to the first lease as to the second parol lease. But if any acts are done after the expiration of the first lease, showing clearly that the subsequent possession is not continued under the first lease^ l)ut under a new contract, the verbal lease will be binding.°t^ When the relation of the landlord and tenant is once established by express act of the parties, it attaches to all who may succeed'to the possession through or under the tenant, whether immediately ■andor the tenant or remotdy from him ; such succeeding tenant being as much affected by the acts and admissions of his predeces- sors, in regard to the title of the landlord, as if they were his own.r Sec. IX. Op the evidence, etc., when the plaintiff claims as. PtTRCHASEK UNDEB AN EXECUTION. The plaintiff must produce the deed of the sheriff to him, or a copy of it, duly certified from the recorder's oflSce of the county. If a certified copy is produced, the execution of the original need not be proved. The deed, or the copy, must appear to have (m) 3 Ohio, 59, 295; 2 Johns. Cas. Ub) 18 Ohio St. 202 ; 11 Ohio, 265. 223; 1 Bawae^ 408; 14 Johns. \p) 8 Taunt. 278; 5 Cow. 123; 7 Id. 224. 823; 3 Johns. 499; 4 S. & K (n) 1 Ohio, 262; 8 Id. 295; 7 Ohio 467; 4 T. E. 488. St. 157. -XLVI.] FOBCIBLE ENTBT AND DETENTION. 549 Evidenc&on the trial. '•been attested by two witnesses, and duly acknowledged like other deeds, or it will be void.' If an original deed is produced on the trial, its execution must 1)6 proved in the manner heretofore stated." The deed of the sheriff is prima facie evidence of the legality of the sale, and the proceedings therein.' If the sale was made withr out Igyy, or without an execution or a judgment, or if the execu- tion upon which the levy orThe sale was made was without a_BSal, .the deed of the sheriff is void."^ In general, the deed of the sheriff vests in the purchaser as good and perfect an estate as the defendant to the Judgment had, on the >fir8t day of the term at which the judgment was rendered.^ No deed, therefore, or other conveyance, made by the defendant after that time, can affect the. title of the plaintiff. Nor can the de- fendant set up, as a defense to the action of forcible detention, that he had no title to the premises at the time the judgment was ren- dered, nor bo permitted to show that some other person is the true owner.'" The purchaser under the execution has a right to hold the possessory title of the defendant, however defective or limited it may be.^ In ordinary sales of real estate upon execution under judgmenit or decree, the growing crops of grain do not pass to the purchaser .' The plaintiff, in order to recover, must show that the defendant -was in possession of the premises at the time the judgment was .rendered," «Sec. X. Op the evidence, etc., where the plaintief claims AS purchaser prom an fiXEOUTOR, ADMINISTRA*OB, GUARDIAN, OR ON SALE IN PARTITION. The proceeding in such case is generally against an heir. The deed of an executor, or administrator, made in pursuance of the order of the court, is prima facie evidence tbat the executor, or ad- ^ministrator, in all respects observed the directions, and complied ■'With the requisitions of the law, and vests title in the purchaser, (r) 1 Ohio, 279,, 315. (v) Eerr. Stat.„i 5402. See § 5875, 6378. (s) Ante, p. 152 et seq. (w) S Cainflr 188. (t) Eev. Stat., § 5402; see ante, p. (x) 2 Ohio, 224 j Wright, 117. 150^ (y) 12 Ohio, 88; 10 Ohio St. 124. e title MonTQAGE OJ Goods. (p) Story's Eq. 360,354; 11 Wheat. (n) 1 Ohio St. 1; Rev. Stat., §4195- 211; 5 Ohio, 121; 2 Ohio St. (o) 2 Obia St. 374 ; 1 Id. 1; 18 Ohio,, 374; 16 Ohio, 108; 10 Id. 162; 418; 15 Id. 108 18Id.423. As to wife, 30 Id. 11. (q) 23 Ohio St. 474. 36 562 FRAUDS. [chap Sales, etc., to defraud creditors. A voluntary conveyance, in consideration of love and affection by a parent to a child, is void, only, as to antecedent, and not sub- sequent creditors, unless made with a fraudulent intent, to protect the property from the payment of debts.' When a transfer of property, by sale or mortgage, has been jnade for the purpose of preventing the creditors of the seller from col- lecting their claims, the justice must declare it void, even though the buyer paid a full and valuable consideration for the property, and took and retained possession of it.° But cases of this sort are carefully to be distinguished from those where a sale, or assignment, or other conveyance, merely amount to giving a preference, in payment, to another creditor ; or -where the assignment and conveyance is made for the benefit of all cred- itors. Such preference, and such general assignment or convey- ance, is void ; but if made to trustees, in contemplation of insolvency, with the design to give such preference, the pourt of common pleas, on petition, will distribute the property equally among all the creditors.' For, although a creditor has a right to obtain in good faith from a debtor a lien or mortgage on the property or effects of his insolvent debtor, for the purpose of securing his debt, and thus in fact obtains a preference, yet if the debtor who is in failing or- insolvent circumstances, make an assignnient of his property to a trustee, so as to require certain favored creditors to be paid more than others, a court of record will so far interpose as to require the trustee to distribute the trust fund equally among all the cred- itors.' An insolvent debtor may, by mortgage, secure the debt of one of his creditors, although it may have practically the effect to pre- fer a creditor ; but where there is a transfer by way of mortgage in view of insolvency, vesting in the mortgagee^property to be held in trust for one or more other creditors besides the mortgagee, the security will inure to the benefit of all the creditors." If an assignment has been made to a trustee, for the- benefit of all the creditors, and the same is in course of adjustment under the (r) 8 Wheat. 242; 2 Ohio, 374; 1 Id. (t) Eev. Stat., g 634;5; I Ohio St. :iu7; 1 ; 6 Paige, 535. 4 Id. 45, 602 ; 12 Id. 591 ; c Id. (s) 3 Co. 81 ; Cowp. 434 ; Burr. 474, 218. 475; 14 Mass. 245 ; 12 Id. 456. (u) 4 Ohio St. 602 ; 1 Id. 45, 237 ; 20 Ohio, 540. XLVII.] FRAUDS. 563 Sales, etc., to defraud creditors. direction of the probate court, as provided by statute,' one of the creditors can not levy an execution on a part of the property so assigned, claiming that possession of the property levied upon had been retained by the assignor, with the consent of the assignee, and to defraud creditors. The remedy for such fraud is by action against the assignee, or by application to the probate court, who will enforce the bonosfide execution of the trust.™ It must be observed that, although conveyances and transfers of property, made to defeat or defraud creditors, are void, as to ex- isting creditors, they are perfect, effectual, and binding, as between the parties to the conveyance or transfer, and can not be set aside by the seller or mortgagor, or his heirs, if they should become dis- satisfied with the transaction.^ A conveyance of this sort is void only as against creditors, an.d then only to the extent in which it may be necessary to deal with the property for their sat- isfaction. To this extent, and to this only, it is treated as if it had not been made. For every other purpose it is good. Satisfy the creditors, and the conveyance stands.^' A court, however, will not aid either of the parties to such fraud to enforce the terms of the contract, or prevent one of the par- ties from cheating the other.y If the debtor has made a fraudulent sale of goods, and taken the notes of the purchaser for the purchase money, payable at a future day, the creditor of the fraudulent debtor may treat the sale as void, and subject the goods to payment of his claim, or he may compel the fraudulent vendee to account for the purchase price of the goods ; but the creditor can not have both of these rem- edies.'' If the person who fraudulently holds property, in the manner above mentioned, sell it to a third person, who buys it in good faith, without having notice of the fraudulent transfer, he will hold it free I'rom the claim of the creditors." (v) Eev. Stat., J 6335, 6343. The (w) 16 Ohio St. 483. statutes referred to make all (x) 2 Ohio St. 374; 18 Ohio, 418; 10 assignments in contemplation Ohio St. 118; 14 Id. 839; 9 of insolvency and for the Ohio, 430. benefit of creditors, whether (y) 17 Ohio St. 480; 16 Id. 118. fraudulent, or giving prefer- (z) 1 7 Ohio St. 388. ence or not, operate for the (a) 1 Ohio, 479 ; 18 Id. 418. benefit of all the creditors. 9 Ohio St. 546. 564 PEAUBS. [OHAP. Sales, etCL, la defraud creditocs. In a civil action, evidence to prove fraud, which even amounts to a crimioal offense, need not be such as. to exclude all reasonable doubt,, but there should be a preponderance of evidence to establish a fraudi*" (b) 17 Ohio St, 624 J 26 Id. 2j 84 Id. 151, 16T. XLVin.] GTTARANTOEB AND B'DBETIES. B65 DeflYiitioirs. CHAPTER XLYIII. GUARANTORS AND SURETIES. Sec. I. Definitions. II. Op the manner in which sureties and guaraniors mat CONTBA-OT. III. What promises come within the statute, and must be in WRITING, A.NB WHAT DO NOT. IV. Op the CONSIDERATION FOR THE EEOMISE OP THE SDEETT. V. What is a sufficient agreement in writing, under thb STATUTE. VI. Op the extent of the contract op surety. VII. How THE surety MAY BE niSCHAROED BY THE ACTS OP THB creditors. VIII. Of the rights and remedy of the surety against his principal. IK. Of contribution between co-sureties, and their reme- dies against each other. Seo. 1. Definitions. The contract of sureljy takes place when one person, to obtain some trust, confidence, or credit for another, engages to be answer- able for him. The person for whom the surety is answerable, is called the principal debtor. A surety is one, who, in order to ob- tain for another some trust, confidence, or credit, engages to be answerable for him. The princ^al is the person for whom the surety engages. The words "warranty" and "guaranty" are both derived from the French word, garantie which means making good, security, voucher ; or from the Treflch verb garantir, which means to un- dertake, to vouch for, to secure against, to indemnify. 566 GUARANTORS AND SURETIES. '[CHAP. Manner of contracting — In what cases to be in writing. Sec. II. Op the manner in which sureties and guarantors MAY CONTRACT. Tlie statute of this state" requires " that upon any special prom- ise to answer for the debt, default, or miscarriage of another, the agreement, or some memorandum or note thereof, shall be ia writing, and signed by the party to be charged therewitli, or by some other peraon, thereunto by him lawfully authorized." A verbal agreement, therefore, to answer for the debt, default, or mis- carriage of another, comes within the operation of the statute, and is void. Sec. III. "What promises come within the statute, and must be in writing, and what do not. First. If the principal debtor be not entirely discharged under the promise and undertaking of the surety, the agreement of the surety, if not reduced to writing, will, in general, be void.'' Thus, A. owes you, and B. agrees with you that if j'ou will forbear to sue A. ten days, he will pay the debt of A., and you wait accordingly; this promise is void, unless in writing. A. would still have re- mained liable for the debt, even if the agreement of B. had been in writing. So if B. should ask you to sell goods to A., and promise that A. would pay for them, or promise that he (B.) would pay for them if A. did not, and you should . sell the goods to A., this promise of B. would be void, for the reason that it is a promise to pay another's debt, and of course should bo in writing. Second. But when the contract of the surety extinguishes the first contract, so that the first debt no longer exists, the second contract is binding, although not reduced to writing." Thus, A. owes you, and B. agrees that if you will release the debt, or will let A. out of custody, on an execution issued upon the debt (the effect of which is to discharge the judgment), he will pay the debt, and you do it accordingly, B. will be bound by the promise, al- though there be no written agreement between you and him. The debt of A., by such an agreement, is extinguished, and the pi-e- existing remedy abandoned-* (a) Rev. Stat., ? 4199. (d) 4Taunt. 117; 3 Esp. 87; 1.3 Eng. • (b) 2 T. B. 80, 81; Ld. Eaym. 1085; C. L. 425; 8 Burr. 1886; 2 Eng. C. L. 386; 10 Johns. Wright, 660; 1 Wils. 305; 25 37. Eng. C. L. 632; 37 Id. 142; i (c) Com. on Con. 186, 187, ed. 1826. Barb. 131; 32 Ohio 8t. 41 5. XLVIII.] GTTARANTOES AND SURETIES. 567 In what cases to be in writing. Third. And so when a promise to pay the debt of a third person arises out of some new consideration of benefit to the surety, or harm to the promisee, moving to the surety, either from the prom- isee or the original debtor, so that as between the surety and the original debtor, the former is bound to pay the debt, such promise will be binding, though not in writing, and though the original debt still subsist. Thus, where A. owed S., and B., in considera- tion that A. delivered him hay to the value of the debt, verbally promised to pay S., it was held that B. was bound by his promise, the hay having been delivered.^" Fourth. With respect to the sale of goods, the rule is, that if the person for whose use the goods are furnished, is at all liable for the debt, any other promise by a third person to pay that debt, must be in writing, or it will be void. But if the credit is given, and the debt for the goods is contracted, by one person, and the goods are, at his request, delivered to another, to whom no credit is given, and who incurs no debt, the person to whom the credit is given being alone liable, his promise need not be in writing.' Thus, if A. should say to you, " Jiet B. have ten yards of cloth, and I will pay you for it," and you do it, this is the debt of A. alone. It is like a written order by A. for goods, in which B. is not liable, and consequently A.'s promise, being for his own debt, and not for that of another, is binding on him, though not in writing. . But if A. had said to. you, " Let B. have ten yards of cloth, and I will pay you if he does not," and you do it, A.'s prom- ise shows that it was not his intention to pay his own debt, but B.'s, provided B. did not pay it when due, and this being a prom- ise to answer for the debt of another, is void, if not in writing. So, when A. (whose nephew wished to carry newspapers), said to B., the publisher, " If my nephew should call for papers, I will be responsible for the papers he shall take ; " and the nephew ac- cordingly took papers, and told B. that his uncle would pay for them ; it was held that this was an original agreement between A. and B., and not the debt of the nephew, and therefore no writing was nec'essary .s . In cases of this kind, it will be perceived that the question is, (e) 4 Cowen, 432, where the English (f) 2 T. E. 80. and American cases are re- (g) 17 Johns. 114; 1 Bsp. 121. viewed ; 5 Wend. 277. See 13 Ohio St. 340; 29 Id. 625, 631. I 568 aTTASANTOBS ANB SDEETIES. [CHAP. ' In 'nhst cases to be in writing. Who contracted the debt, and tx) whom was the credit given ? If, solely, to the person who ordered the goods, his promise is bind- ing, though snot in wrdting; if to the person to whom the goods were furnished (the person at whose request the goods were fur- nished being raerely the surety), then the case is within the statute, and the promise of the latter mtist be in writing. It is necessary, sometimes, to take into consideration not only the expressions used by the parties, but the eittmtioo of the defendant at the time of his undertaking, in order to ascertain whether he is the sole debtor, or a mere surety for the debt of another.*" The rules last stated are applicable, as well to cases where work or labor is comtraicted for, as where goods are ordered to be deliv- ered to a third person. Thus, if A. should say to you, " Make a plow, and when B. calls, let him have it, and I will pay you,^' and you do it, this is a debt of A. alone, and he is liable on his verbal promise. Fifth. The fitabute was intended to apply to promises made to the person to whom a debt is due, and in order to secure its pay- pent to him. There is, thenefore, a class of cases that do not come within the operation of the statute, because the promise ifs, either to the person who owes the debt, or, though made to the person to whom the debt is due, is not made to secure its payment. Thus, if there is a sait by A., ag:ainst you, and B. promises to pay him fifty dollars if he will withdraw the suit, and he does it, B. is liable on his promise, though not m writing ;' for, the promise is not to p^y your debt, but -a sum of money distinct from, and independ- ent of it. A promise, however, to imdeBmify A, for assuming the debt of B., or a promise bj A. to JB,, to indemnify B. against loss in be- oonaing surety for C, is void, if not in writing; but a promise iby one co-surety, to indemnify the other need not be in writing; forit is a promise to secuiie one's own defiiult.J Sixth. If A. owes you, and deposits with B. momey to meet the debt, and B. makes a verbal promise to A. that he will pay you the money ; if, on demand, he shall refuse to pay it, you may recover it of him by suit'' So, if, instead of money, A. place property in the hands of B., with an agreement that he shall sell it, and pay you out of the proceeds, and he sells tbe property, you can not sue him for the (h) Com. on Con. 185; 82 Ohio St. 415. 5Hm,483; 120hioSt.219j 13 ( i) 1 Wil8. 305. Id. 340; 28 Id. 41, 383. (j) 4 Barb. 181, and cases there cited; (k) 1 Johns. Cases, 206. XLTni.J GTrARANTORS AND STJRtlTIiES. 569 Oomslderation of •g«arawties. money, unless he promised to pay it over; but his promise neeJ not be in writing.' If, however, A. 'has received the property for the above purpose, and has not sold it, his proTnise to yoa to pay the debt would be void, if not in writiflg.'" Where a verbal promise lo pay the debt of another is void, and that promise forms a part of a verbal agreement, and is so con- neeted with the other part as to make one entire contract, such contract is wholly void ; and that part of it which, standing by it- self, need not have been ifi writing, can not be enfoTced." But, if the part void by the statute is a separate and distinct part of the agreement, and the other part forms, of itself, an entire and dis- tinct agreement, tfeea tfa^e part only which is void by the statute, will be invalid." ' Sec. IV. Ov the cosbideeation for the promise of the sttrett. It has already been mentioned, that all contracts and promises, wbether written or verbal, must be founded upon some considera- tion, or they are not binding. What is a sufficient consideration, has also been stated. p What would be a sufficient consideration in any other species of contract, would also be sufficient where the promise is to answer for the debt, default, or miscarriage of another.' It may, perhaps, be proper here to state, that when a person signs a note or other contract witli another, as surety, no inquiry can, in general, arise, as to the consideration between the surety and the person in whose favor the note or contract is made. Every one knows that such contracts are of daily occurrence, and binding on the surety. Where, therefore, a guaranty, or promise in writing to pay the debt of another, is made at the same time with the contract to which it is collateral, it is incorporated with the original transac- tion, and becomes an essential branch of it; the whole is one single bargain; and the want of consideration, as between the plaintiff nnd the guarantying party, can not be alleged.'' The question in Tolation to the consiideration of the promise of the surety, arises, in general, where the surety enters into an agree- (1) 1 Johns. Cases, 205 ; 8 Har. & (o) Thoob. Pr. & Su. 278. McHon. 451. ' (p) See amtej p. 512. (m) 12 Johns. 291. (q) 11 Eng. 0. L. 56, per Best, C. J (n) 7 T. K. 201. (r) 8 Johns. 23, 32, note. 570 GUARANTORS AND SURETIES. [CHAP. Consideration of guaranties. ment, in writing, distinct and separate from, and subsequent to that of the principal with his creditor. If A. executes his note to B., and C, at the time the note is made, indorses his name on the back of it, he thereby becomes surety for A., the same as if he signed his name to the note with A., in the iibsence of an agreement in regard to the extent of the responsi- bility of C; and consequently there is a sufficient consideration for his promise.^ But if A. executes his note to B., and C, having no concern with the note at the time it is made, afterward indorses his name on the back of it, he is not liable unless there was a sufficient consideration therefor.' If the promise, in writing, of the surety is founded on something already done and passed, as on account of farther time, already given, to pay the debt of the principal, or the like, such by-gone consideration is not good, and a promise founded upon it alone is void ; unless, indeed, such consideration arose from the request of the surety, in which case it will be good. But, if the promise, in writing, of a surety, to answer for the debt of a third person, be made in consideration of something to be done (as, in considera- tion of goods to be supplied, -or legal proceedings on a judgment against a debtor to be stayed), the consideration i'^ good and valid." A past, or by-gone consideration, being insufficient of itself, it follows, that if a person promise to answer for the debt of another, when such debt existed prior to the promise, something new must take place to constitute a consideration for such promise of the surety ; and this may be either a harm or inconvenience to the creditor., or a benefit to the debtor, or to the surety.^ Thus, A. sues me, and B. promises A., in writing, to be responsible for the debt and costs, if he will direct the sheriff not to serve the sum- mons ; such direction will constitute a sufficient consideration for the promise of B.'" These rules will be further illustrated in the next section. The consideration of the promise of the surety or guarantor need not be in writing, or stated in the written agreement.^ (s) 8 Pick. 122; 3 Mass. 274; 11 Id. (v) 2 H. Bl. 312; 4 Taunt. Gil; 11 436 ; post, p. 576. Eng. C. L. 54.. (t) 8 Pick. 423; 6 Mass. 861; 7 Id. (w) 2 H. Bl. 312. 233. (x) 17 Ohio, 128. (uj Theobald Prin. and Su. 7; 29 Ohio St. 681. XLVIII.] GUAEANTORS AND SURETIES. 571 What is a sufficient agreement in writing — Extent, nature, and construction. Seo. V. What is a surnoiENT agreement in writing, under THE statute. The agreement, or some note or memorandum thereof, must be in writing. The instrument must, of itself, contain sufficient to show a promise to pay the debt of another. The following writiiig was held sufficient: " I guaranty the payment of any goods which J. S. delivers to J. IT. (Signed.) A. L." The consideration appears on the face of the instrument to be, that J. S. should give J. JS". credit for goods, which would, of course, be a benefit to the latter.'. So, the following was held to be a sufficient agreement; and that the apparent consideration was a further supply of articles on credit : " I hereby guaranty the present account of Miss M. Mosely, due to E. S. Shortridge & Co., of £112, and what she may contract from this date to the 30th of September next. (Signed,) J. "Wood."' But a letter, .amounting merely to an offer to guarantee, is not sufficient, unless it be accepted; simply, because it requires the assent of two minds to make a contract; and an offer to promise, unless accepted, amounts to a mere proposition. Thus, an action was broiight on the following letter, to the plaintiff, from, the de- fendant : " You will be perfectly safe in crediting Messrs. A. & Co. for £4,000 ; indeed, I have no objection to guarantee you against any loss from giving this credit." The plaintiff did not inform the defendant until long afterward, and subsequent to the failure of A. & Co., that he intended to accept the guaranty; and failing to prove the subsequent consent of the defendant to the guaranty, it was held not to be binding upon him. But if the plaintiff, within a reasonable time after he gave the credit to A. & Co., had notified the defendant that he accepted the guarantj-, it would have been binding.' For the. same reason, the following letter, written by the defendant, is not sufficient, unless the plaintiff show that he • accepted the offer: "7 have no objection to guarantee the payment of," etc." Sec. VI. Of the extent of the contract of surety, and its na- ture AND construction. "When a person is surety for the fidelity. of another, in an office of limited duration, or the appointment to which is only for a lim- (y) l.Campb. 242; 9 East, 348. , (a) 1 M. & S. 557; 1 Story C. C. 22. (z) 7 Eng. C. L. 415; 15 Ves. 287. See 3 "Watts, 2l3 ; 9 Barr, 220 (b) 3 Eng. C. L. 388. See 32 Ohio St. 177. 572 • GUARANTOES AND SURETIES. [OBAP. Itxtemt, nature, obA eoDStTomtioa. ited period, he is not obliged beyond that period, though the officer should be re-elected or again appointed, unless there be an express provision extending the obligation beyond the term of the origipal ap])ointment or election,^ In general, if the debt bears interest, the surety is liable for in- terest. When the surety has given bond, he is not liable beyond the penalty of the bond.* Oh a guaranty in these words, indorsed on a note, " I guarantee the collection of this note to Gr. H.," the guarantor is not liable until after the holder has endeavored to collect the "money from the maJiors ; iind either a return on execution, or other proof of entire insolvency tantamount thereto, must be shown to charge the guar- antori A stipulation that A. shall not be liable to pay a note until the property of B. is " exhausted," an execution against B. returned no property subject to execution, is a compliance Tvith the stipulation." So, where A. assigned to B. a judgment against C, rendered in £nox county, Ohio, and the assignment contained this condition, that " if B. shall fail in collecting said judgment after prosecut- ing said C. (who now resides in Iowa), to insolvency, then I agree to be responsible to B., and hereby guarantee the sum of four hundred dollars of said judgment and no more," it was held that there could be no breach of the condition until A. prosecuted C. to insolvency. If, however, the judgment had been actually paid and satisfied at the time, and ujion bringing suit upon it in Iowa that fact was established, the guarantor is liable ; for the condition shows that the understanding was that C. could bo prosecuted to insolvency, and B. has done all that could be required. The record of such suit in Iowa, ending in proof of payment, would lie prima facie evidence only, in a suit on the guaranty, that B. had used duo diligence, unless, when the defense of payment of the judgment was interposed, notice was given to A., the assignor, so that ha could have an opportunity to show that the judgment was not paid ; land in the absence of such notice, A. may, in a suit agaiust him on the guaranty, contradict the record and show that tho judgment had not in fact been paid.^ Where a bill of exchange, owned by a bank, was sold by it, but (c) 2 Saund. 403; 7 Wheat. 720; 2 (e) 24 Ohio St. 114.' Ohio, 884 ; 31 Ohio St. 878. (f ) 13 Ohio St. 136. (d) 8 Cowen, 151. "~"~" — (g) 29 Ohio St. 625. Xl-Vin.] GITARANTOES AND' StTEETIES, 6T3 Extent, Datare, aad construction. instead of forwarding the bill to the piiirchaser, disposed of it otherwise, and then sent the purchaser another bill owned by tho bank, with a written statement of the cashier in a letter to the purchaser, inolosinjf the last-mentioned bill, apologizing for the substitution, and saying, " the bill isi perfectly safe," and the pur- chaser replying that the stated inelosure was satisfactory, it was held that this was a representation of the bank, in the nature of a guiirawty that the bill was collectible.^ Where an indorsement was signed by a third person at the foot of a promissory note, in these words, " I hereby obligate myself that the above note shall be paid in three years from this 4th day of June, 1838,"'' the court say : " This is not an engagement that the maker should pay the note when due, and if not, that the gtiarantor would pay it ; but that, in consideration that the payee ■would delay the payment until two years after the maturity of the note, the guarantor would pay it." It is an original, and not a conditional undertaking, and therefore no demand on the maker of the note, or notice to the guarantor, was necessary to charge the latter. So, where the owner and holder of a negotiable promissory note, at the time of bis transfer of the note to A., indorsed and signed thereon the following, " I guarantee the payment of the within note to A.," it was held to be an unconditional guaranty, and no de- mand upon the maker of the note, or notice to the guarantor, was necessary ; but if the guarantor was injured by the omission of notice, be maysbow it, and reduce the recovery to the extent only of the damages he sustained thereby.' It will be found diffleult, in many cases, to determine from the terms of the guaranty indorsed on a note or claim, whether th* guarantor intends to become conditionally liable (that is, liable if the original debtor does not pay), or absolutely and unconditionally liable. But in the construction of guaranties, the courts have, in their recent decisions, and certainly in aeeordanee with the inten- tion of parties, been inclined to construe indorsements of this kind as conditional, and not original aJid absolute promises to^ pay the debt of another. When a claim is so assigned as to make the assignor conditionally liable, either for the original debt, for the payment of which tha (g) 11 Ohio SL 153. (i) 19 Ohio St. 549. (h) 17 Ohio, 128, 574 GUARANTORS AND SURETIES. [cIIAP. Extent, nature, and construction. claim was assigned, or conditionally liable upon the assignment itself, the assignor will, in general, be discharged, if the assignee neglect or delay, to the injury of the assignor and for an unreasonable time, to demand payment of the pei-son from whom the claim assigned is due, or neglect to give the assignor notice of the default of tho principal debtor. Bat the assignee is not, in general, bound in such case to observe the same promptness as is required upon a negoii- - able instrument (in regard to a demand and notice) in order to make the assignor liable; nor need the assignee sue such debtor before he proceeds against the assignor, unless that was the understanding or agreement upon which the assignment was made.J When the guaranty imports, by fair construction, that the orig- inal debt is good, or that the principal debtor will be able to jjay wheu the debt becomes due, or that the debt is collectible by action, there can be no breach of the guaranty until subsequent steps are taken in the manner implied by the guaranty to collect the debt from the principal. After such steps are taken, the guarantor should, in general, have notice thereof to charge him ; and tho plaintiff should show that when the debt fell due the debtor was insolvent, or upon suit being brought within a reasonable time afterward and properly prosecuted, the execution produced no fruits in consequence of his insolvency.* If a note or bill signed by a surety and payable to a bank is re- fused discount, and is afterward purchased by a third person with- out the consent of the surety, he will be discharged ; and that too, although the bank knowing the suretyship, afterward purchase the paper from such third person.' Letters of credit usually contain a request to some one to advance money or sell goods to a third person, and an undertaking on the part of the writer that the debt contracted by the third person, in pursuance of the request, shall be duly paid. It is always safest in such cases for the person to whom tho letter is addressed to give notice within a reasonable time of the credit, and amount of ad- vances made upon the faith of the letter of credit." "Where, how- ever, upon a fair construction of the written obligation, the party executing it binds himself to be responsible for goods to be sold to ( j) 7 Pet. U. S. 128 J 2 Ohio, 439 ; 12 Id. 629; 14 Id. 231 ; 13 Ohio Pet. 503 ; 11 Ohio, 108. St. 136. See ante, p. 572. (k) 3 Vt. 60; 18 Id. 32; 6 Barb. 547; (1) 16 Ohio, 282; 18 Ohio St. 353. 19 Johns. 69; 1 Wend. 457; 11 (m) 3 Pet. 113; 5 Id. 624; 12 Id, 482; 10 Ohio, 490. XLVIII.] GUARANTORS AND SURETIES. 575 Extent, nature, and construction. a third person, it is to be regarded as an absolute guaranty, and when acted upon according to its terms, the liability of the guar- antor attaches, and no notice to him of the acceptance of the guar- anty, or of its having been acted upon, is necessary." Where there is a mere offer or proposal to guaranty, notice to the guarantor of the acceptance of the guarantyis necessary, utilcss there is an acknowledgment of liability and a promise to pay. But if there is an absolute guaranty and not a mere offer, no notice of acceptance is necessary to bind the guarantor." In general, notice of the default of the principal debtor, who is bound to pay tlie debt, should be given to the guarantor, if from the nature of the guaranty, the creditor was bound to look first to the principal debtor for payment.? Notice of the default of the principal debtor should be given within a reasonable time. The promptness required to charge indorsers, etc., of negotiable paper, is.not applicable to guaranties. Notice of the default of the prin- cipal debtor should not be so long deferred as to injure the guar- antaf by the delay. The insolvency of the principal debtor at the maturity of the debt would, in most instances, altogether excuse the want of notice ; and, on the other hand, his becoming insolvent between the time when the notice might have been given, and the time when it was actually given, would bo evidence that the guar- antor was injured by the delay.i If, however, the principal debtor was insolvent when the debt became due, and the guarantor re- ceived no notice of the default of payment, and he can show that he sustained any damage from the want of notice, he will be dis- charged to the amount of that damage.' Where the guaranty was for payment, if the claim was not collectible by suit, it was held that the entire insolvency of the debtor would excuse delay in bringing the action." Where a letter of credit is addressed to a particular person or firm, no one else can rely on it as a guaranty.* And where a letter (n) 12 Ohio St. 273, where the cases (q) 4 Ohio St. 263; 5 Id. 304; 12 Pet. are reviewed; 32 Id. 177. 497; 9 S. & R. 202; 8 Pick. ' (o) 15 Conn. 457, 206 ; 1 Story 0. C. 423 ; 12 Id. 424 ; ] 5 Con n . 400 ; ) 22; 22 Maine, 175; 12 Otio St. but see 11 Vt. 444; 24 Woiid. 273. 35. (p) 2 How. 457; 7 Pet. 113; 5 Id. (r) Id. lb.; hut see 2 McLean, 21, 624; 2 Ohio, 439; 9 S. & E. 369. 195 ; 12 Pick. 424. (s) 4 Ohio St. 263. (t) 10 Ohio, 490. 576 CmARANTOBS AND SURETIES. [CHAP. Extent, nature, and constroetion. of credit was addressed, by mistake, to- Jobn and Joseph Naylor, and delivered to John and Jeremiah Naylor, who furnished goods, upon the faith of the letter, it was held that the latter could not bo permitted to show that the letter was intended for them, and the writer was held not to be responsible to them." j8ut a letter of eredit must be distinguished from one which au- Uiorizes the person to whom it is addressed to purchase property for him of B , or which contains an express promise to pay B. at a certain day named, if he will sell the person, to whom the letter is addressed certain property ; for, in either of the two last-named cases, if. the purchase be made accorfingly on the credit in whole or part of the letter (and notice thereof, in the latter ease, is given to the writer of the letter), he will be liable.^ / It is a general rule that a guarantor or surety can only be held Vby the strict terms of the obligation into which he has entered. /If mot within the letter, he can not, by implication or otherwise, bo l^ade liable.'' An agreement must be explicit to charge one with the debt of another by a continuing guaranty:^ Where a stranger or third person, who is not a party to or holder of a promissory note, indorses his name, in blank, upon the back of it, courts have had some diflSLculty in determining whether he should be deemed a guarantor, or an original promisor and surety of the maker, or an indorser. The following rules seem to be settled by our courts upon this sub- ject J 1. The construction of the contract will depend upon the rela- tion in which the parties stood to each other when the contract took effect. 2. Such a construction should be placed upon the contract as wili prevent its failure, and will give effect to the obligations of each of the parties appearing upon the instrument at the moment the con- tract itself took effect. 3. Whenever the obligation of the- party appearing upon the back of an instrument can, at the time the instrument takes effect, be deemed an accommodation indorsement^ it should be so held, as (u) i Oranch, 224. (x) 14 Barb. 232; 16 Oonn. 457; 16 (v) 10 Ohio St. 192. Serg. & Eawle, 213 ; 32 Ohio St. . (w) 1 Ohio St. 260; 20 Ohio, 98; 17 177. Id. 554 ; 5 Hill, 634 ; 4 Id. 200. (y) 8 Ohio St. 415. XlVin.] GUABANTORS AND SUEETIKS. 577 Extent, nature, and constinction. conforming more nearly to the general intention of parties assum- ing that position upon it. 4. Parol evidence will be received to show the agreement and in- tention of the third person, or stranger, in signing his name, in blank, on the back of the instrument. 5. Where the only parties to the instrument are the maker, payee, and such third person, the signature of the latter, in blank is entirely inconsistent with the idea that he is an indorser, in the mercantile sense of that term, as the instrument and indorsement show that such indorser never held the paper, or transferred it. In such case, he is deemed, prima facie, and in the absence of testi- mony, a guarantor or surety ; and the rule is the same whether the instrument is negotiable or not.^ 6. But if it appear from testimony, or from the instrument, that the indorsement was made at the time the instrument itself was ex- ecuted and took effect, such third person and stranger will be deemed an original promisor, and will be bound in like manner as if he had signed the note with, and as surety for, the maker. So, if such third person signed his name upon it, in blank, after the note was executed, and in pursuance of an agreement or intention that he should thereby become party to the note, as surety of the maker, he will, upon proof thereof, by parol or other evidence, be bound in like manner as if he had signed the note with, and as surety for, the maker ; and the rule is the same whether the instrument is negotiable or not.* But when the instrument indorsed by a stranger is not designed for the payee, and the arrangement contemplates the indorsenient of the payee also, as an accommodation indorser, before it is nego- tiated or used, then, when negotiated, it will be presumed that such stranger intended to become, and will therefore, in general, be held to be, an accommodation indorser, and entitled to the usual rights, and subject to the usual liabilities, of an accommodation indorser. The order of the indorsement, in such case, of accommodation in- dorsers, in point of time, or locality, is of no importance ; for the relative rights of the accommodation indorsers will be controlled bj (z) 15 Ohio St. 515. Oreerumgh et al. v. Smead et al^ (a) 15 Ohio, 228; 17 Id. 42; 12 Id. 3 Ohio St. 415. See 16 Id. 158; 11 Id. 102; 16 Id. 1; 18 515. Id. 336 Per Bannet, J., in 37 578 GUAHANTOES AND StTEETIES. [OHAl^. Extent, nature, and construction. the order contemplated by the contract of indorsement.* Thus, where A. gave his name in blanls to B., as an accommodation to •enable B. to raise money ; B. then wrote a promissory note on the •other side of the paper, payable to C, or order, signed it as maker, -and procured the indorsement of C. upon the back under that of A., and subsequently procured the indorsement of D., and in this oondition got it discounted ; it was held that the holder was au- thorized to treat A. as an indorser, and not an original promisor, upon whom demand was necessary, to charge the other indorsers.* So, too, in accordance with the above rules, where A. made his promissory note payable to B., or order, at a future day, and before its delivery to B. applied to 0. to sign it as surety and maker, and C. refused, but agreed to become an indorser only, and for that pur- pose signed his name on the back of it, of all of which the payee> B., had notice ; and B. afterward, and before the note was due, negotiated and transferred it by delive ry only, wiihcuit in- ■dor seme nt, to D., and D. negotiated and indorsed it to E., a bona fide holder, ignorant of the circumstances under which C. in- (dorsed the note ; it was held that, as the note was payable to B., •or order, and B. had not indorsed it, the note was still payable to the order of B., and that D. held only an equitable ownership in the note, and by his indorsement could assign his equitable inter- est only to B. ; that E., as a mere equitable holder, could claim no •exemption from equities existing between prior parties, and vfjis .affected by the notice which B. had of the actual contract between A. and C, as to C. being an indorser only. If B. had, when Le ■delivered the note to D., indorsed bis name on the note above the fiignature of C, then B. would have been liable as first indorser, and ■C. liable as second indorser, and this would have carried out the terms upon which C. became a party to the note ; but as no such -indorsement was made, the liability of C. had not accrued^ The above remarks, in regard to parol evidence to explain an indorsement upon a promissory note, relate only to blank indorse- ments, made by a stranger or third person ; for, a written promise, ifilled up at the time of the contract, or a common blank indorse- ment of a party to a negotiable note, can not be made out, its de- fects supplied, or its terms changed, by proof of any verbal under- etanding between the parties f and the above remarks are more particularly applicable to accommodation indorsers upon promis- (\i) 3 Ohio St. 416, per Kannbt, J. (d) 4 Dall. 840. See 21 OhioSt.155; 81 (c) 10OhioSt^83. Id. 15, 50. See post, pp. 583, 738, n. XLVIII.] GUARANTORS AND SURETIES. 579t Discharge of guarantor or surety by acts of creditor. «ory notes ; the rule being different, it seems, as to accommodation ■Indorsers of bills of exchange." /^ Where a third person, and a stranger to a note, at the time of its lexecution, wrote, on the back of the note and signed these words : T" I guarantee the fulfillment of the within contract;" it was held, Athat the instrument, with its indorsement, was a joint contract^ VSeO, VII. How THE SURETY OR GUARANTOR MAT BE DISCHARGED BT THE ACTS OF THE CREDITOR. If the person to whom the debt is due receive a part of the debt from the principal in discharge of the whole, or release the debt, this will discharge the surety.^ So, the surety is discharged if,, without his consent,^ a new bargain or agreement is made, chang- ing the contract, or its mode of performance,' or if the contract i» in writing, altering its terms. It is not sufficient that he may sus- tain no injury by a change in the contract ; or that it may even be for his benefit. He has a right to stand upon the very terms of ithe contract ; and if he does not assent to any variation of it, and a ■variation be made, it is fatal.J It is the duty of the party to whom the surety is bound, to put ihim in possession of all the facts likely to affect his liability. If he "does not, or if he conceals from the surety facts which increase his risk, it will amount to a fraud, and discharge the surety.'' If, with the knowledge or assent of the creditor, any material part of the transaction between the creditor and his debtor is misrepresented to the surety, (the misrepresentation being such, that, but for the same having taken place, either the suretyship would not have been entered into at all, or being entered into, the extent of the surety's liability might be thereby increased,) the security so given as voidable; unless, the fact being known, a new promise is mado by the surety on a sufficient consideration.' The knowledge or assent of the creditor to the misrepresentation •or unfairness is, in general, essential. Therefore, where a surety, "in signing his name to a promissory note below or after the namea iof other persons have been placed on the note as co-sureties, h» (e) See post, title Promissory Notes, 373, 343 ; 15 Id. 57, 295 ; 16 Id. BTC; 1 Ohio, 413; 11 Id. 62; 348; 13 Id. 364. 17 Ohio St. 215; 29 Id. 7. (j) 14 Ohio St. 372; 9 Id. 443; » (f) 18 Ohio, 336; 16 Id. 1; 12 Id. ^ "Wheat. 680; 8 Wash. O.C.70. 158; 31 Ohio St. 41. * See 31 Id. 476 ; 30 Id. 662. ,(g) 10 Eng.'S lTsS^; 2 Swanst. 539. (k) Cbitty's Con. 226 (3 ed.) ; Story's - erty to assignees, for the benefit of his creditors, and no Steps were taken by the holder of the note, nor by the surety thereon, toward presenting it to the assignees for allowance and payment, out of ithe assets in their hands, it was held that the mere omission of the holder of the note, "to present it to the assignees, did not exonerate the surety from liability thereon.'" Indeed, passiveness on the part of the creditor will not, in gen- eral, discharge the surety, unless the creditor omits to do, when re-^ quired by the surety, what the law or bis duty enjoins him to do, ■or unless he neglects, to the injury of the surety, to discharge hia 'duty in any matter in which he, in good faith, and as trustee tot ithe surety, should protect or enforce the rights of the surety.'^ The discharge of the surety by delay,, or giving time, will not> ih general, discharge the principal debtor. Where the creditor has obtained the obligation or signature of a (q) 14 Ohio St. 372. (u) 7 Ohio (pt. 2), 72. (r) 11 Beigh, 384; 81 Penn. St. 460. (v) 20 Ohio St. 337. (s) 14 Ohio, 575; 10 Id. 60, 64; 14 (w) 21 Ohio St. 86. Ohio St. 372. (z) 3 Lead. CitseB £4. 629; 13 Ohi3^ his co-surety. Before suing for contribution it is safest to make a demand, or at least notify the co-surety of the payment and proportional amount, due from him. Where there are two or more sureties, and the creditor, without giving time to the principal, or releasing-him, gives time to one of the sureties only, or releases him, the other sureties are not thereby wholly discharged ; but the creditor thereby releases them to the extent to which they might have enforced contribution from the surety to whom time has been given, or who has been released. Thus, if A. and B. are sureties of C. on a- note executed to Dj. and D. releases or gives time to A., then D. can recover from |t. only one-half the amount of the note, &r that is the extent to which the released surety was bound to :kPto contribute.p The certificate in the judgment, showing which is principal and- which are sureties, is prima facie, but not conclusive of the facts^ in' a suit for contribution.'' When any of the sureties are insolvent, the division is made* among those who are solvent. Thus, when one of the three sure- ties has paid the whole debt, he is allowed a half from his co-surety, if the third is insolvent.' Where, however, one has been induced to become surety, at the- instance of his co-surety, though he thereby renders himself liable- to the person to whom security is given, he is not, in general, liable- to contribution to the co-surety, at whose instance he became a surety,* if the circumstances imply such an understanding between- them. When a note or other instrument is made by principal and surety, and the principal being alone sued, his special bail(l), or bail for stay of execution, are compelled to pay the money, the surety are- not responsible to the special bail, or the stay bail, for any part or the money.' (p) 14 Ohio St. 372; 31 Penn St. 460. (s) 2 Esp. 478; 15 Eng. 0. L. 333; (q) 2.5 Ohio St. 89. Theo. Pr. & Su. 268. (r) 1- Vt. 456; 1 Oh. Cas. 84, 696. (t) See 3 Ohio, 33. (1) Special bail is the bail taken of the defendant when under an order ot an'est. Xr,IX.J GUARDIAN AND WARD. 58T Belation of — Choosing guardian — Marriage of guardian or ward — Powers, etc CHAPTER XLIX. GTJAKDIAN AND WARD. The relation of guardian and ward is nearly allied to that of jiarent and child. It applies to children during their minority, and may exist during the lives of the parents ; but usually takes- place on the death of the father, and the guardian is intended try take his place. If an infant have property and no guardian,, neither the parent nor any other person can act for him in relation to such prof)erty. A female ward has a right to choose a guardian when she arrives at twelve years of age ; and a male ward may choose a guardian' when he arrives to the age of fourteen ; but the guardian previ- ously appointed continues to be guardian until the ward arrives at majority, unless such guardian be removed for good cause, or such ward shall select a guardian approved by the court, and duly ap- pointed and qualified." The marriage of a ward, if a female, determines the guardian- ship as to the person, but not as to the estate of such ward.'' If the guardian be an unmarried,woman,her guardianship ceases upon her marriage." The guardian of the person has control over the ward, and a guardian of the estate controls the estate only. The power of guardians of the estate to lease their ward's land, is provided for by statute.'' As to the powers and duties of trustees of a minor, idiot, lunatic, or imbecile, residing out of this state, and having property, real or (a) Eev. Stat., ? 6257. As to guard- 885,. sec. 5; "Wright, 119; 11 ians appointed prior to July Ohio, 442 ; S. & C. 671, note. 1, 1858, whose wards were then (h) Kev. Stat., g 6265. )k under twelve and fourteen (c) Eev. Stat., g 6292. years of age, see Swan's Stat, (d)- Kev Stat., g 6295 et seq. ^88 GUARDIAN ANS WABD. [OHAPw FoweTB and liabilities of the guardian, etc personal, in this state, the reader is referred to the statute upon that subject.^ A guardian may bring an action in his own name, for injuriefr done to his ward's land.' If he execute a note or contract as guard ian, he must, in general, be sued in his own name, and not as guardian ; even thoagh he describe himself in the note or contract as guardian.s Judgment is, in general, rendered, and execution is issued against him, ill his individual capacity, and not as guardian. His own personal property will be liable to satisfy such execution. We shall have occasion hereafter to point out the mode in which jnfants sue and are sued, for injuries, and upon contracts entered into by them.(l) A guardian has no authority whatever to receive money for his ward, after his term of service has expir'ed ; nor have the executors •or administrators of the guardian, after his decea8e.''(2) Foreign guardians may sue here for their wards ; but security for costs must be given as is required of other non-residents.* (e) Eev. Stat., § 6302 et seq. (h) "Wright, 119; Bae. Ab., title (f ) Bac. Ab., title Gttardian (G) ; GxTARDXAir (E). 5 Johns. 66. . (i) Eev. Stat, § 6290. (g) 5 Mass. 299; 6 Id. 58; 17 Serg. ' &E. 174. (1) See poet, title Infants. As to apprenticing wards, see ante, p. 37fi. The negligence of a parent or custodian of a child can not be imputed to the child to bar its right of action against others for injuries resulting from their wrongful acts; for instance, permitting a child to go upon a railroad track; 18 Ohio St. 399 ; but it will bar the parents' action. 24 Ohio St. 670. (2) The guardian's duty is one of obligation, not of speculation and profit. He can not reap any benefit from the use of the ward's money. If he settles a debt upon beneficial terms, or purchases it at a discount, the advantage is to accrue entirely to the infant. If he neglect to put the ward's money at inter- est, and negligently and for an unreasonable time suffer it to be idle, or mingle it with his own, the court will charge him with simple interest, and in cases of gioss delinquency, with compound interest. See 32 Ohio St. 289. The guardian can not convert the personal property of the ward into real estate without the direction of the court. Where the statute requires a particular authority to be pursued in the trans- fer of an interest in the real estaiu of wards, the purchaser from guardians is presumed to know such authority necessary, and must, in general, at his peril see that it has been pursued^ 28 Ohio St. 609. Ik]i HU&BAND AND WIFI?. 589> BigM of the -wiiCe to hwt piopeii^. CHAPTER L. HUSBAND AND WIFE. Seo. I. Of the eight op the wipe to her peopertt. 1. As to the real estate of the wife. 2. As to leases and the like helonging to the wife. 3. As to personal property and debts due the wife. n. Liability op hee property and hee husband's to satispt HEP CONTEACTS, TOETS, ETC. 1. As to the contracts, etc., of the wife. III. When he is liable POR NEOESSAEIES PUENISHED to HERr AND WHEN NOT. 1. As to crimes and injuries committed by her. IV. Op THE POWEE OP THE WIFE TO ACT WITHOUT HER HUSBAND. "V. Incompetency op the husband and wipe as witnesses. VI. Op actions BEOUGHT by and against the husband AND' wipe ; AND herein — 1. "When the husband must sue alone. 2. When the husband must join, and when the wife may siir alone. Sec. I. Op the eight which the husband acquires in the'peop- EETY OP THE WIPE. 1. 4s to the real estate of the wife. — By statute," any estate or in- terest, legal or equitable, in real property belonging to a woman at her marriage, or which may come to her during marriage and cov- erture by conveyance, gift, devise, or inheritance, or by purchase with her separate money or means, together with all the rents or issues thereof, remain her separate property and under her sole control during the marriage. During the life of the wife or any heir of her body, such estate can not be taken by any process of law for the payment of the husband's debts, or be conveyed or in- cambered by him, anless. she- joins thereia witbhim in.' the manner presenibed by law in regard to her own estate.* She may, during: (a) Bev Stat., g 3108. (b) 5 Ohio St. 46. 590 HUSBAND AND WIFE. [CHAP, Bight of the wife to her property. -coverture and in her own name, make contracts for labor and ma- -terials for improving, repairing, and cultivating the same, and lease lier estate for any period not exceeding three years. If the hus- band survives the wife, he holds the real estate of the wife, and lakes the rents and profits during his own life. The estate after- ward goes to the heirs of the wife. If the husband survive the wife, the crops growing on the land after the termination of the husband's estate by his death, go to the representatives of the husband, in the same manner as if the land, bad descended to his heirs. If, however, the wife survive the hus- band, the crops growing on the land belong to and follow the estate .of the wife by force of the statute." If the husband and wife lease the land of the wife, and he dies before the expiration of the lease (the wife surviving him), the lease will not be operative against the wife after her husband's de- cease, unless she acknowledged the execution of the lease in the manner prescribed by the statute."* But if she make a lease for a period not exceeding three years, and die during the term of the lease, the Itusband will be bound by it by force of the statute, and ■will be entitled to the rent." Where the husband enters into a contract for the building of a 'bouse upon lands belonging to his wife, the credit being given to the liusband, a mechanic's lien upon such land of the wife is not thereby •created, for it is his debt.' If, however, the wife alone, or with her husband, makes a contract for such building on her'real estate, or for improvements, repairs, or cultivation, her real estate is liable' •therefor.' If, during the marriage, lands are conveyed to the husband and wife, the wife holds an undivided half, subject after her death to the 4ife estate of her husband.s Debts due a woman are extinguished 4)y her intermarrying with the debtor."" 2. As to leases and the like belonging to the wife. — These being an interest in real estate, remain, like real estate, the separate property (c) Rev. Stat., ? 8108. (f )■ 18 Ohio St. 181 (d) 2 Kent's Com. 138 ; 7 Johns. 81 ; (g) 2 Ohio, 306 ; Cond. 327. 6 Ohio, 318. ^h) 18 Ohio St. 548. (i) 21 Ohio St. 402. As to courts of chancery subjecting the separate prop- -erty of the wife to payments for improvements made by her on her property, see 20 Ohio St. 871. 1.] HUSBAND AND WIPE. 591 Eight of the -wife to her property. , of the wife, and under her sole control during the marriage, and can not be taken on process against the husband.' 3. As to personal property, and as to debts due to the wife (which are termed choses in action or rights in action), belonging to her at her marriage, or which may have come to her daring the covert- ure or marriage, by gift, bequest; or inheritance, or by purchase with her separate money or means, or be due as the wages of her fieparate labor, or have grown out of any violation of her personal rights, together with all income, increase or profits thereof: they re- main her separate property and under her sole control, and are not liable to be taken by any process of law for the debts of her husband. Any such personal property, however, of the wife, reduced to posses- sion by the husband during the marriage, with the express assent of the wife, will thereby become the separate property of the husband.'* The assent of the wife to the husband's' more possession, care, use, or protection of her personal property, will not vest the owher- ehip in him, nor affect her right of property. To become the property of the husband, the terms of her assent to the possession by the husband must be such as to inclade full authority to sell, incumber, or otherwise dispose of the j)roperty for his own use and benefit.^ It would seem, therefore, that if notes or other claims of the wife are in the possession of the husband, the wife may reduce them to possession ; and such possession of the husband would not be sufficient to authorize the husband to assign, release, or collect the note or claim, unless the wife indorsed or otherwise authorized the husband to do so. But in such case, very slight evidence of the authority of the hus- band to act as the agent of the wife and for her benefit,would be fiuflSeient. Of course, the wife may receive payment, or discharge, or otherwise dispose of lier notes, claims, and other personal prop- erty, although the husband object thereto. If the husband does not reduce the property to ownership during the marriage in the man- ner above stated, it goes to her heirs, subject to her debts. A married woman has not capacity to enter into a general mer- cantile partnership not connected with, or relating to her separata property ; but if she does so with the consent of her husband and (i) Kev. Stat., § 3108. 113 ; 14 Id. 100, 237 ; 18 Ohio <)ver his property, which must be possessed by some one, unless he has constituted some other person his agent for that purpose, T^he extent of this power to bind the husband as his agent, arising from the mere circumstance of his absence from home, must, in (g) 24 Eng. C. L. 419; 26 Ohio St. 9. (h) Rev. Stat., ? 3U1. See ante, p. 592. (i) 5 Ohio, 65. 596 HUSBAND AND WIFE. [CHAR. Incompetency of husband and wife as witnesses. general, be confined to such acts as are necessary to take care or the property. It is said that the wife, in the absence of her hus- band, may hire out the- horse or other property of the husband, even if th6 husband had before directed her not to do so.J If, how- ever, the hirer knew that the husband had forbidden the hire, it is' clear that the contract of hire would be void. "When the wife acts for the husband in any business or depart- ment, by his authority, and with his assent, he thereby adopts her acts, and is bound by such contracts as she may make within the- scope of the authority ."^ The rule in relation to her admissions, being evidence against her husband, has already been stated.' Sec. V. Incompetency op husband and wipe as witnesses. As already stated, husband and wife are incompetent to testify- concerning any communication made by one to the other during coverture or marriage, or concerning any act done by either in the presence of the other during marriage, unless such communication was made or such act was done within the known presence, hearing, or knowledge of a third person, competent to be a witness. And this rule is applicable, whether the husband or wife be called as a. witness while that relation subsists, or afterward.™ But this pro- vision of the code is applicable only in civil actions ; for, in crimi- nal cases, husband and wife are incompetent witneses for or against each other, whether others were present or not when an act was done or the communication made.^. Where the wife complains against the husband for assault and battery upon her person, or asks that he may enter into a recog- nizance to keep the peace, she can of course be a witness against him.P In a prosecution for marrying two wives, the second wife w a competent witness, provided there is proof of the legality of the- first marriage ; because the second marriage is totally void." (j) 10 Wend. 79. (n^ 20 Ohio St. 333; 32 Id. 276. (k) 1 Esp. 142 ; Wright, 595. (o) TrEaym. i. ( 1) See ante, p. 171. (p) 34 Ohio St. 87. (m) Eev. Stat., § 5241 ; ante, p. 126. !!,,] HtrSBAND AND -WIFE. 597 Actions by and against tnem. :Sec. VI. Of actions brought bt and against the husband and WIFE. In general, contracts made by the wife daring marriage are void .&t law. But her contracts for labor and materials for improving, repairing, and cultivating her separate real estate, and leasing the ;«ame for a period not exceeding three years, are valid at law, and they only, in general, can be enforced by an action against her and -by her before a justice," if he have jurisdiction. (See ante, pp. 17, 1?.) A wife, having the sole control and management of her separate real and personal property, must necessarily enter into various contracts other than those for work and materials, cultivation an'! leasing. These other contracts, as various as that of a man managing like interests, will generally be made with her on the faith and credit -of her separate property. If, however, she violates any of these ■contracts, she can not be sued by action or attachment before a justice of the peace, although the amount involved is less than one hundred dollars^ The remedy on such contracts, although void at >law, is by suit on the equity side of the court of common pleas. That court will charge her separate estate with the payment of just claims against her on such contracts, express or implied, if the persons with whom she dealt done so on the faith and credit of her separate estate, and the circumstances of the transaction were such, in the opinion of the court, as to render it just that the obligation incurred by her should be paid out of her separate estate. (1) When the husband must sue alone. — In general, the wife can' not join in any action upon a contract, unless she have a beneficial in- terest in the contract ; that is, unless the proceeds of the judgment, or some part of it, will belong to her. Where there is a debt due the wife, otherwise than by a sealed instrument, and the husband, by consent of the wife, procures the debto/s sealed instrument payable to himself, under circumstances showing that the wife thereby intended that the debt should belong t (o) Eev. Stat., gj 3108, 4996, 3110. Vp) 29 Ohio S t. 136; 34 Id. 589; 26 Id. 65V ; 30 Id. 147. (1) 30 Ohio St. 147. See cases, Eev. Stat., Vol. 1, note, p. 806 et seq.,.inus- -^rating the rule stated in the text. As to the mode a court of equity adopts to ^enforce payment by the wife, see 20 Ohio St. 371. ■^98 HUSBAND AND WIPE. [CHAP„ Actions by and against tbem. to him, the wife can not join in the action upon it ; because, hy 'taking the sealed instrument by her assent, the original debt is ex- tinguished, and the wife is not a party to that instrument.* When both must be parties to an action or she sue alone. — When a married woman sues, or is sued, her husband must be joined with her, unless the action concerns her separate property, is upon her- written obligation, concerns business in which she is a partner, is- brought to set aside a deed or will, or to collect a legacy, or is be- itween her and her husband.^ This provision of the code relates- . principally to suits in equity; and does not change or enlarge the liabilities of the wife, but the remedy only." The justice is only interested in the question whether, under his limited jurisdiction to- entertain an action at law by or against her alone — that is, on a Jease or contracts for materials, labor, or cultivation, above men- tioned — the husband and wife can, in such particular actions, be joined as plaintiffs or defendants, or whether she must sue or be sued alone. It may be that the supreme court will hold that the •husband may be joined in such actions at laWj^hut it is safest to sue the wife alone, for it would probably be error to render judgment in such case against both ; the action being on a contract which he did not make , had ogJatOTestjii, and could not prevent his wife- making ; and to render the judgment against both would, in effect, make him security for the solvency of his wife. Hence, it seems to me that if the husband is joined in such particular actions, it will be for mere conformity, and that the judgment must be for or against her alone. At the common law and under the statute, the wife is treated as an unmarried female, and can make contracts, and sue and be sued, alone, if her husband is a foreigner residing abroad," or has been abandoned by her husband in a foreign country, and comes to this- State to reside. As the law presumes the death of the husband when he has been- abroad, and not heard from for seven years, the wife, in such case,- (q) Eev. Stat., g 3109. But if such (r) Eev. Stat., § 4996. sealed instrument was taken by (s) 26 Ohio St. 527. the husband, -without the au- (t) .'^m ff] n^m .^t, -'^7P thority of the -wife, she may (u) 2 Esp. 554, 587 j 1 Bos. & PuU sue separately upon the orig- 367; 5 Ohio St. 580; Id. 403^ inal cause of action. X.] HUSBAND AND WIF]?. 599 Actions by and against them. ■will be deemed a widow^and her acts and contracts are, by way of equitable estoppel, binding on her, although the husband is not in fact dead." If the husband and wife live separate by agreement, and he far- nish hei with a separate maintenance, she is still subject to the- usual disabilities of a married woman.^ The wife sues or is sued by the name which she acquired by her marriage, or the name by which she is generally known. If the husband die while a suit is pending in the name of him- self and wife, for a cause of action which survives to the wife, hi» decease should be mentioned on the docket,(l) and the cause pro- ceed to trial and judgment in favor of the widow, aa in other cases. If a husband and wife be sued together, the wife may defend for her own right ; and if the husband neglect to defend, she may de- fend for his right also J When, however, the action involves no separate right of the wife, and no judgment can be rendered except a joint one, affecting both jointly, this rule is not applicable.^(2) (v) 6 Bast, 80, 85; 18 Johns. Ul; (x) 2 Wm. Black. 1195; 8T.E. 545? Hardin, 479; 27 Eng. C. L. 6 Id. 604; 2 Halst. 150; 1» 335; SighioStJ^ Eng. C. L. 84. (w) See 31 Ohio St. 546 ; 32 Id. 299 ; (y) Kev. Stat., § 4997. and ante, p. 595; z) 8 Ohio St. 494. (1) Thus: "June 5, 18 . The death of the plaintiff; A. B., suggested by C. B. (his widow.)" (2) A married woman, whose estate by marriage settlement is vested in. trustees, the rents and profits being payable to her, may, unless restrained by the terms of the instrument of marriage settlement, contract, without the con- sent of the trustees, for reasonable repairs and improvements for the benefit of the estate ; and a mechanic's lien may attach under the statute to the extent, at least, of the rents and profits payable to her. 14 Ohio St. 619. 600 INFANTS. [chap. "Who are infants — Of the liability for necessaries. CHAPTER LI. INPAIfTS. Sec. I. Who are infants. II. Op the liability of an infant for necessaries. in. As to other contracts by an infant. IV. Of the confirmation of a contract by an infant after HE ARRIVES AT FULL AGE. V. Of the LIABILITY OF A PERSON WHO CONTRACTS WITH AN IN- FANT. VI. How INFANTS SHOJJLD SUE AND BE SUED. Sec. I. Who are infants. The age of twenty-one years fcrr males, and eighteen for females, has been fixed by law as the period when an absolute and unlim- ited legal ability to contract and make deeds shall commence.' Sec. II. Of the liability of an infant for necessaries. The general principle of law is, that the contract of an infant, for the supply of necessaries to him, at a reasonable price, is as binding as if he were of full age. If the infant live with his father or guardian, and their care and protection are duly exercised, he can not bind himself for necessaries.* "The question, what are necessaries, depends upon the real cir- cumstances and wants of the infant, and not upon his apparent situation ; and therefore, in general, the tradesman who trusts him is bound to make due inquiry, and if the infant has, in fact, been properly supplied by his friends or others, the tradesman can not recover." (a) Eev. Stat., ? 3136. (o) 14 Eng. 0. L. 232 ; 1 Esp. 211 ; 25 (b) 2 H. Bla. 1326. Eng. C. L. 600. 11.] INFANTS. 601 Por what liaMe — Their contracts, etc. An infant is liable for food, lodgings, medicine, and education, at fair and reasonable prices, and for such quantities of apparel, and of such a quality, as may be conformable to his estate. The term " necessaries " is not, therefore, to bo strictly confined to such things as are absolutely necessary for mere support, education, and cloth- ing, but is a relative term, depending upon, and to be construed in reference to, the wealth and age of the infant.* Necessaries for the wife and children of an infant are deemed necessary for him.® The infant is not bound to pay for the articles furnished moro than they were reasonably worth ; nor can he be prevented by the form or terms of the contract from inquiring into their real value. Sec. 111. As to other contracts or an infant. All contracts of an infant, except for necessaries, are, in general, either void or voidable. A void contract is one which is not, and never can be binding. Such a contract can not, therefore, be confirmed or rendered valid at any other time. A voidable contract, so far as relates to an infant, is one that is binding on others, until it is disaffirmed or denied by the infant, who can avoid it by plea of infancy, or may, after he arrives at full age, confirm it, and thereby render it binding upon him.' It was said in the previous editions of this work, that no one knew ■what contracts of an infant are void, and what are voidable only. But now the supreme court have relieved this subject fi'om uncer- tainty by holding that, except for necessaries and the appointment -of an agent, the contracts of an infant are in general voidable only. Hence it is his privilege to plead his infancy, and thus avoid a con- tract, except for necessaries. He is bound for necessaries, and his uppointment of an agent is in general void. If after arriving at full age he ratifies a voidable contract, he will be bound by it ; and if with full knowledge of the facts he thus ratifies a voidable con- tract, which was even prejudic\^l to his interest, he should in morals, and is in law, bound to perform it, and may be sued thereonJ So an infant may be vested with power to do an act for (d) 1 Bsp. 211 ; 8 T. E. 588; 6 Bsp. (f) Bing. 9 ; 2 Esp. 430. 28, 152. (g) 31 Ohio St. 72. (e) 1 Stra. 168. ^ 602 INFANTS. [chap. Their contracts, etc. another, such as bidding off land, and conveying it for the benefit, of another, and the execution of such power is as irrevocable and effectual as if done by an adult,'' for he has in such cases no in- terest to protect, and can neither be benefited nor injured by the exercise of a mere power conferred on him by another. He may plead infancy to a marriage contract entered into before majority, and when over eighteen years of age^l^ If an infant obtain goods by fraudulently representing him- self to be of age, the seller may retake the goods, or bring an ac- tion to recover them by reason of the fraud.J And in general the- privilege of infancy can not be used as a sword, but only as a shield. If on sale of goods to him he execute a chattel mortgage thereon, he must tender back the goods to avoid the mortgage; and if he- sell the goods, the purchaser will take subject to" the mortgage.'' If hired to service by his parents by contract, void because not in writing,' or if he does work in part payment of his own contract, or pays money upon it, he can not, by avoiding or abandoning the- contract before full performance, on account of his infancy, get back the money, or recover compensation for his work ; for, in gen- eral, like an adult, he can not exact performance and at the same time refuse to perform an executory contracts^ The law does not consider an infant as having sufficient discre- tion to carry on a trade or business ; consequently, he is not liable- for goods sold to him, or work done for him, or on a contract en- tered into by him, in his trade or business." He is liable for an assault and battery, trespass to real or personal property, for embezzling money," for willfully and intentionally in- juring an animal hired to himP (but not for killing it by mere severe usage'), and for all wrongful acts of a like mature. In such, cases, his infancy is no protection if he has arrived to years of dis- cretion. (h) 3 Ohio St. 494. (n) Bing. on Inf. 9 ; 2 Kent's Com- (i) Sl Ohio St. 62 1. 238; 14 Eng. C. L. 307; 9 Id (j) 15 Mass. 350. See post, pp. 772, 256. 773. (o) 1 Esp. 172. (k) 26 Ohio St. 67 ; see ante, p. 529. (p) 2 Wend. 137, (1) 29 Ohio St. 59. (q) 3 Kawle, 351. Im) 29 Ohio St. 59; 8 Cow. 84; 8 'faunTWs. II.] INFANTS. 60a. Conflrmation of contracts — Liability of person contracting — How to sue, etc. Sec. it. Of the confirmation of a contract by an infant, after he arrives at full age. A Toid contract can only be revived by a new contract; but a voidable contract may become binding upon an infant, by his affirm- ing it or assenting to its validity, after he arrives at majority. As to what circumstance are sufficient to show that the infant, after arriving at full age, has dissented from, or assented to the contract, no definite rule is established. The situation of the in- fant when the contract was made, and his acts after his majority, may raise a sufficient presumption that he has assented to the con- tract, though he may have said nothing. As, where an infant was a partner, and continued to deal with a creditor of the firm, after full age, it was held to be a confirmation of the contract, to pay debts of the firmj^ contracted with such creditor during the infancy. The promise, or act, confirming the contract, o'r deed of convey- ance, must, in general, either be by express words, or positive ac- tions in favor of the contract or deed, or by such circumstances as clearly show an acquiescence.' Sec. v. Of the liability of a person who contracts with an INFANT. If a person enter into an agreement with an infant, he can not avoid the contract, unless indeed the infant himself hath disaffirmed ^/ it, or it be otherwise void. Hence, it is laid down as a general rule, that infancy is a personal privilege, of which no one can take; advantage but the infant himself, or his executors or adminis- trators.' ifCo,4. rojrT'M**^ C«L4,. Sec YI. How infants shoitld sue and be sued. An infant can not sue, except by his guardian or his next friend,, who inust be named in the process and on the docket. (1) The ap- pointment is made before the summons is issued, upon the ap- plication of the infant, if he be of the age of fourteen years, or (s) 5 Ohio, 251; 14 Id. 228; 15 Id. (t) 11 Mass. 147; 9 Id. 62, 100; 10 156. Id. 137. (1) Eev. Stat., \ 6474. The infant plaintiff may he named in the process,, and on the docket, thus : "A. B., an infant, who sues by his next friend, G-. G." €04 INFANTS. [ODAP. How to sue and be sued. npward ;(2) if under that age, upon the application of some friend. (3) The consent, in writing, of the guardian to be appointed, and to be responsible for the costs, if he fail in the action, must be filed ■with the justice. (4) If the infant be defendant, the guardian must be appointed be- fore trial. It is the right of the infant to nominate his own guardian, if the infatot be over fourteen years of age, and the pro- posed guardian be present, and consent, in writing, to be appointed. Otherwise, the justice may appoint a suitable person, who gives such consent. The guardian for the infant defendant need not consent to become responsible for costs.- The action can not pro- ceed to trial until a guardian to the suit is duly appointed for the defendant. The form of the docket entry, etc., can be readily made out from the preceding forms. The guardian to the suit of the infant defendant not being lia- ble for the judgment or costs, the judgment is rendered against the infant, and execution issues thereon, and for costs, as in other ■cases. (2) The docket entry may be thus ; " The said A. B. being an infant upward «f the age of fourteen, on his application, I appointed G. G. his guardian to this suit. The said G. G. appeared, and filed his consent thereto in writing and that he would be responsible for costs." (3) The docket entry may be thus : " The said A. B. being an infant under the age of fourteen, on application of. his friend, G. G., I appointed him guard- ian to this suit, who'flled his consent thereto in writing, and that he would ba responsible for costs." (4) Thus: A. B.| an infant, by G. G., "| his guardian to the suit, plaintiff. Before G. H., j. P., township, -^— V. county. C. D., defendant. J I consent to be appointed guardian in the above suit of A. B., and agree to Jbe responsible for costs if said A. B. fail in said action. April— — . G.G. ml] intbebst and usury. 60& Bate of^ and construction of the statute in relation thereto. CHAPTER LII. INTEREST AND USURY. Sec. I. Or the rate or interest, and the construction of the Statute in relation thereto. II. Of the mode of computing interest. 1. Where paymenf is made hefore the debt is due. 2. Where payments exceeding the interest are made after the debt is due. 3. Where the payment is less than the interest due. III. Where interest upon interest mat be allowed. Sec. I. Of the rate of interest, and the construction of the STATUTE IN RELATION THERETO. Contracts for interest at a rate not exceeding ten per cent, made between May 1, 1850, and April 1, 1859, are valid. Between April 1, 1859, and October 1, 1869, conti-acts for interest beyond six per cent, were not authorized by law." But since October 1, 1869, con- tracts in writing for the forbearance or payment of money at any future time may stipulate for interest at any rate not exceeding eight per cent, per annum payable annually, and interest at the same rate will be allowed on judgments taken on contracts for such rate. In the absence of such contract for a special rate, creditors are entitled to six per cent, per annum and no more, when money is due and payable upon any instrument of writing, book-account, settlement, verbal contract, or other transaction, judgment, decree, or order for the paymeet of money.* A contract for interest be- yond six per cent, made -between April 1 , 1859, and October 1, 1869, is illegal, and a contract for interest beyond eight per cent, made after October 1, 1869, is also illegal. A rate of interest beyond what the law allows parties to contract ibr, whether incorporated into the note, or into separate notes, or (a) S. & C. 744, sec. 3. (b) Eev. Stat., ? 3181. -*06 INTEREST AND USURY. [CHAP^ Bate of, and construction of the statute in relation thereto. covered up by other device, is usurious, and the excess will not be adjusted by a court to the rate above six per cent, which it was law- ful to contract for, but to six per cent, only; and all payments of •money or property made by way of .usurious interest, whether made in advance or not, if beyond the special rate which parties maj' lawfully agree to pay, will be deemed and taken, as to the excess of interest above six per cent., payments made of the principal, .and the debt will be adjusted accordingly .<= (1) Under the act of 1850, which allowed contracts for interest " at any rate not exceeding ten per cent, yearly" the interest at that rate could be made payable even quarterly." The present law now ■in force allows contracts for interest " at any rate not exceeding ^ight per cent, per annum, payable annually." The courts must set- tle the question whether interest at eight per cent, payable before the end of a year, is a greater rate than eight per cent, per an- num payable annually.'' The lawful rate stipulated can be charged after the principal is due and on the judgment ; but interest on the interest in default will be six per cent, yearly, unless otherwise ■ stipulated ; and, in either case, without any semi-annual or quarterly rests on such in- terest in default, or rests for interest on the judgment, although the interest is stipulated to be paid quarterly ; for there can be no compounding of interest on the interest in default.^ (c) Kev. Stat., g 3183; 16 Ohio St. 418; 16 Id. 40,219; 10 Id. 440; 34 Id. 442. (d) 25 Ohio St. 622. (e) 25 Ohio St. 384, 413, 622; 26 Id. 59. (1) Where separate notes are talcen, one for the sum loaned, and the other for the eight per cent, interest, or where a single note is taken for such loan and the interest, without any stipulation as to interest, only six per cent, inter- ,e6t can be recovered after default. 15 Ohio St. 219 ; 10 Id. 440 ; 33 Id. 410. A debtor of an estate, in settling with executors, allowed usurious interest on his indebtedness, and instead of paying the executor, gave his notes to a leg- .■atee in payment of the amount, who accepted them in part payment of a leg- i-acy, and thereby discharged the estate from liability to him. In an action on the notes, the debtor can not, by way of defense, set up the usurious interest, although the legatee was one of the executors: the notes being given to a new party, and for a new consideration. 24 Ohio St. 486. Building associations are not authorized to charge interest on premiums al- lowed for precedence in taking loans. The money actually advanced, is the basis for the computation of interest. 25 Ohio St. 186, 208; 28 Id. 92. Fines can not be imposed for default in the payment of interest on loans ; nor can more than one fine be assessed in respect to the same installment of stated dues. 25 Ohio St. 186. Such corporation, under the act of May 9, 1868 (S. & S. 194), may, by itsby- .laws, assess and collect a reasonable fine from a member of the association, for III.] INTEREST AND USURY. 607 Bate of, and oonatruotion of the statute in relation thereto. No bona fide indorsee of negotiable paper, purchased before due, .•will be affected by any usury exacted by any former holder of^such paper, unless he shall have had actual notice of such usury previous to his purchase ; the amount, however, of such excess incorporated into negotiable paper, may, after payment thereof, be recovered back by action against the party originally exacting the usury.'' A stipulation to pay five per cent, as a collection fee, in addition to the legal interest, is against public policy, and void.« The rate of interest will be atfected by the law of the state or ■country where the contract is made ; for the general rule is, that interest is to be paid according to the law of the place where the contract is made, and where it was presumptively to be enforced ; and if usurious and void there,'it is void here.' If a contract be •entered into in one state, to be performed in another, and the rate of interest differ in the two states, the parties may stipulate for the lawful rate of interest in either state or country ;S and if no rate is stipulated, then interest wiil, in general, be allowed at the rate prescribed by the law of the state or country where the money is made payable.*" Where, however, a note is made and dated in one state, and there renewed with like tenor, but sent to another state, merely for the signature of one of the makers of the first note, the new note is to be regarded as made in the first-mentioned state, and governed, in respect to the rate and contract for interest, by the laws thereof' (d) Eev. Stat:, ? 3183; 26 Ohio St. (f) 14 Ohio St. 396; 15 Id. 68; 12 Id. 641. As to interest taken by 610; 2 Kent, 560, n.; 4 Pet. 111. national banks, see ante, p. 488. (g) 25 Ohio St. 413. (e) 10 Ohio, 378; 15 Ohio St. 40; Id. (h) 20 Johns. 102; 2 Id. 235; Par. 418. N. B. .[CHAP. Mechanics, furnishers, and laborers' lien on structures, etc. So, when two married women employed the same mechanic to build a double house, the half on the respective lots of each, the lien was held to attach to each lot, and the value of the improve- ment apportioned to each.' The lien above mentioned commences, in general, from the date • of the first item of the labor performed, material or machinery furnished upon or toward the structure hereinbefore described as the subject of the lien.e When materials are furnished from time to time for a particular jpurpose, as, for instance, the building of a house, and the dates are 80 near each other as to constitute a running account, the lien dates from the time when the first article was supplied, although, strictly speaking, the articles were not supplied under one entire contract.'' But where they are furnished for different purposes — as, for in- stance, a part of them for constructing a house, and the residue, ao a subsequent time, for altering or repairing it — or where there are intervals of time in the account so long that it can not, with pro- priety, be called one account, there is not, in the absence of an entire contract, a lien for the whole from the date of the first article furnished. The items must be regarded as constituting two or more distinct accounts, as the case may be; as, for instance, the materials supplied for constructing the house as making one ac- count — those subsequently furnished for repairing it, as forming another ; or those supplied before the supposed interval of time, as constituting one account, and those sxibsequently furnished, as another. And to each of these accounts the rules heretofore stated will apply. But it does not follow that where alterations and re- pairs are going on, at, or about, the same time, the account must be divided ; nor that there must be a division where the alteration -or repairs are made immediately after the erection, so as to plainly constitute but one account.' The lien terminates in two years after the date of the filing of the affidavit for the assertion of the lien. If, however, an action is brought to enforce such lien within the two years, the lien will continue in force until the final adjudication thereof,J even as against & subsequent hona fide purchaser without notice.J No homestead or other exemption laws operate against mechan- (f ) 24 Ohio St. 402. (1) 2 Ohio St. 126 ; 11 Id. 58. (g) Bev. Stat., § 3185. (j) 27 Ohio St. 147. (h) 2 Ohio St. 128. illl.J IiIEN8. 621" Mechanics, furnishers, and laborers' lien on structures, etc. ics' liens described in this and in the subsequent sections of this chapter^. The lien of a primary structure creditor for labor or materials for- constructing, altering, or repairing a street, etc., hereinbefore men- tioned, by virtue of a private contract between him and the owner of lands abutting thereon, or his authorized agent, has a lien for the payment of the same, against the lands of such owner, like other structure creditors, and must, to create the lien, file his affi- davit with the recorder within the four months above mentioned, with a like itemized account of the amount and value thereof, an estimate of the amount chargeable to each foot front along the line of the improvement, and, if the contract was made with several owners, a description of the lands of each, with the number of feet belonging to each abutting on such line, a copy of the contract, if it is in writing, and if not in writing, a statement of the amounts and times of payments to be made thereunder. This will operate as a lien on the interest of such delinquent in the abutting lands, from the date of the first item of labor done or material furnished, for one year from and after the filing of such attested account, and if an action is brought to enforce the lien within that time, it will continue in force until finally adjudicated.^ As to interfering liens, and the rights generally of primary stmcture creditors. — The lien given by the law in question, does not override or interfere with prior bona fide liens. The builder, or material- man, can not have a lien upon the house to the exclusion of a mort- gage, judgment, or vendor, or the assignee of the notes given for the purchase-money of the lot, whose lien attached before the house was erected, altered, or repaired.™ If several liens be obtained by several persons on the same job, in the manner hereinbefore stated, they have no priority among themselves, but payment thereon will be made pro rata.^ The idea upon which the law proceeds, in respect to primary structure creditors, is, that the building is the result of the labor and materials of various persons ; the work of some of these must precede that of others, but each contributes his proper share to the value of the structure ; its value when finished. Is derived from these several contributions. The legislature intended the money, whether arising from the rents or the sale, to be distributed in pro- portion to their several demands.™ (k). Eev. Stat., g 3185, 5J§4. (m) 2 Ohio St. 126; 11 Id. 58. (1) Bev. Stat., g§ 3186, 3187. (n) Rev. Stat., § 3188. '622 • LIENS. [chap. Meobanics, furnishers, and laborers' lien on structures, etc. If A. and B. commence work, or the furnishing of materials, and. -afterward the owner mortgage the premises to C, and after this D. and E. begin to work, or to furnish materials, here A. and B. have priority over C, and C. has priority over D. and B. In such case, A. and B. must receive what they would be entitled to if C.'s mort- .gage had no existence ; the residue must be applied next to the satisfaction of the mortgage; and whatever may remain, after that, must be distributed to D. and E-. in proportion to their several de- mands." If in an action for the enforcement of such lien, the property sub- ject thereto will not sell on execution, by reason of a defective title, the court will order the oflScer returning the execution to rent or lease such property, but subject to all prior bona fide liens, until the rents and profits thereof pay such lien ; and the rents will be made payable to such oflScer, or his successor in oflSce, and when paid will be forthwith returned by him into court, for distribution to the party or parties' entitled thereto.? If any lienholder, after the amount of his lien or judgment -thereon, with legal costs, has been paid or tendered him, never- theless proceeds to sell, lease, or rent such property as above pro- vided, he will forfeit his lien, and must pay the owner all damages ^arising to him therefrom, not exceeding the amount of the lien and his costs; and if the lienholder, after the amount of his lien has been satisfied, or adjudged against him in an action thereon, neg- lect qr refuse, on the written request of the owner within ten days thereafter, to file a certificate of such satisfaction or adjudication, -with the county recorder, which must be entered by him on the margin of the record of the lien, such lienholder will be liable to the owner for all damages arising therefrom, not exceeding the iimount of the lien and costs.i If the holder of a mechanic's lien proceeds under the chapter of the revised laws relating to liens, against property whose owner re- ■fiides without the state, or is beyond the reach of process, he may proceed against such property in attachment, and have the same sold, rented, or leased, as above provided.'' Executors and administrators of deceased owners have the same rights and are subject to the same liabilities that such owners would -enjoy or be subject to if alive." (o) 2 Ohio St. 125 1 see 27 Id. 132. (r) Eev. Stat., i 8191. (p) Eev. Stat., pi89. (s) Kev. Stat, | 3192. (q) Rev. Stat., 2 8190. till.] LIENS. ■ 623. Mechanics, furnishers, and laborers' lien on structures, etc. 4. Bights and remedies of secondary or subordinate structure cred- itors. Who are secondary or subordinate structure creditors has been already stated ; and the kind of structures upon which they can obtain a mechanic's lien for labor and materials.' If their demands are not paid when due they may tile with the owner, or if the claim is for a public improvement hereinbefore described, then file with the owner, board, or oflScer, or the authorized clerk or agent thereof, -a sworn and itemized account of the amount and value of the la- bor or material under the contract, express or implied, under which the labor was performed or material furnished, with all credits and set-offs thereon." Upon receiving the notice, such owner, board, etc., so served, must detain all subsequent payments from the principal •or sub-contractor upon the contract to secure such account, and the account or estimates of other sub-contractors and secondary or sub- ordinate structure creditors who may intervenes) before the next subsequent payment under the contract, or within ten days there- after." Such secondary structure creditor so filing his account, must al'; the same time, and in order to notify his fellow secondary structure •creditors and sub contractors, also file a copy thereof with the re- corder of the county where such property is situate. If he fails to* do this, the filing of the notice with the owner, etc., before men- tioned, will give him no preference over other claimants.'' If a lien has been taken to secure a claim about which there is a dispute, the party taking such lien must, within thirty days there- after, notify the owner of the property, his agent or attorney, that fiuch a lien is in existence, and if he fails so to do, the lien so taken will be null and void.^ The owner of property upon which a lien has been taken to secure any mechanic, laborer, or material-man, may notify, in writing, the owner of the lien, or his agent or attorney, to com- mence suit thereon, and if he fails to commence the suit within sixty days after receiving such written notice, the lien will be null andvoid, but nothing herein will prevent the claim from be- ing collected as other claims are collected by law.y Sub-contractors and secondary structure creditors, who before the (t) See ante, p.617,Bev. Stat., § 3193. (w) Eev. Stat., g 3195. (u) Eev. Stat., g 3193. (x) Kev. Stat., g 3196. ^es referred to. In the affidavit of a subordinate structure cred- itor (ante, pp. 623, 628) it will be proper to state the relation of the affiant to the head contractor or sub'Contractor as the facts are, and that the items of affiant's account were applied and used on the contract between the head contractor and the owner of the sfilructure. (See Eev. Stat., § 3193.) (e) Kev. Stat., g 3211. fiSO, 631, 632 LIENS. [CHAP^ Affidavit to obtain a lien by a primary structure creditor. Form of affidavit to obtain a lien by a primary structure creditor. A. B. makes oath and says that the following is a correct account of the amount and value of the labor performed for, and the mate- rials and machinery furnished to [C. D., name the person or corpora- tion with whom A. B. deaW], and the dates and time when said [labor, materials, and machinery] were done and furnished [with all credits and offsets thereon ; or say, upon which there are no credits or offsets. Sere set forth the itemized account.'] The work and^roperty named in the above account were used and applied to the [construction, or say, repair, according to the facts (see ante, p. 617) ; and describe the lot upon which the structure stands, and then state who is owner.] The said items charged accrued and were- made [under a contract in writing, of which the following is a copy ; or say, under a contract not in writing, but in substance as follows : state it and times and amounts of payments.] This affiant <3laims the statutory mechanic's lien in the premises on said struc- ture, and the lot of land upon which it stands, from the date of th» first item of said account. A. B. Sworn to, etc. XIV.] LIMITATION OP ACTIONS. 633, Within what time actions to he commenced. CHAPTER LIV. LIMITATION OF ACTIONS. Sec. I. "Within what time actions must be commenced. II. At what period the statute begins to run. III. Of the exceptions in the statute, and what acts pre. VENT IT FROM OPERATING OR RUNNING. Sec. I. Within what time actions to be commenced. An actioD for the forcible entry and detention, or forcible deten- tion only, of real property, can only be brought within two years after the cause of such action shall have accrued." Civil actions other than for the recovery of real property, can' only be brought within the following periods, after the cause of action shall have accrued : Within fifteen years: An action upon a specialty, (1) or any agreement, contract, or promise in writing. Within six years: An action upon a contract not in writing, ex- press or implied ; or, an action upon a liability created by statute, other than a forfeiture or penalty. Within four years : An action for trespass upon real property : An action for taking, detaining, or injuring personal property, including actions for the specific recovery of personal property; (a) Rev. Stat., § 6599. (1) The judgment of a court or justice of the peace of a sister state and an undertaking for the stay of execution, are deemed specialties, hut a domestic judgment is not. 10 Ohio St. 33 ; 33 Id. 52; 15 Id. 364. No action can be hrought to revive a judgment after twenty-one years after it becomes dormant, unless the party entitled to bring such action was at the time the judgment became dormaijt within the age of twenty-one years, insane, or imprisoned, when the action may be brought within fifteen years after the disability ceased. Eev. Stat., § 5368. /^ Where a creditor takes from his debtor a note, and also a mortgage on real (estate, to secure the same, and the debtor afterward dies, and an action against I his administrator on the note becomes barred under the administration law, / the creditor may nevertheless have his remedy in equity on the mortgage. 11 VOhio St. 42. 634 LIMITATION OF ACTIONS. [CHAP. At what period the statute begins to run. but for wrongful taking of personal property, the cause of action does not accrue until the discovery of tiie wrong-doer. An action for an injury to the rights of the plaintiff, not arising on contract, and not hereinafter enumerated. An action for relief on the ground of fraud ; the cause of action !n such case shall not be deemed to have accrued-until the discovery of the fraud." But if the ground of the action is for other cause than fraud, it will be no answer to the plea of the statute of limitations, that the defendant did not di|iCOver, or that the defendant fraudulently con- coaled the cause of actio n.» Within one year : An action upon a statute for a penalty or for- feiture ; but where the statute giving such action, prescribes a dif- ferent limitation, the action may be brought within the period so limited. Actions for relief not above provided for, and actions upon the official bond or undertaking of an officer, assignee, trustee, execu- tor, administrator, or guardian, or upon a bond or undertaking given in pursuance of a statute, can only be brought within ten ^•ears after the cause of action accrues, unless otherwise limited by statute. If there he any civil action of which a justice has jurisdiction •other than those above named, and which by special statute is re- quired to be brought in a certain period, the action may be brought accordinglj'-.'' Sec. II. At what period the statute begins to run. It will be observed, from the provisions of the law stated in the preceding section, that the statute requires the action to be com- menced within a certain number of years after the cause of action accrued; or, in other words, within a certain number of yeai-s after the. plaintiff had a right to bring an action. The time men- tioned in the statute does not begin to run until there is a complete cause of action.* If I make to you my promissory note, payable in fifty years from date, you have no right to sue me, and no cause of action accrues to you, until the expiration of the fifty years; and iionsequently, the statute does not begin to run until the note is actually due. If no suit is commenced within fifteen years after the expiration of the fifty years, your action will be barred by the (a) 19 Ohio St. 466 ; 10 Ohio, 469. (c) Eev.-Stat., § 4982; 26 Ohio St. ih) Bev. Stat., 5 4976. 559 ; 32 Id. 228. (d) 34 Id. 305. JuIV,} LIMITATION OF ACTIONS. 635 At 'what period the statute begins to run. statute. If I make to you my promissory note, payable three days -after sight, no cause of action arises on it until the note is pre- sented to me for payment, for it is not due until then ; and there- fore, the statute does not begin to operate until three days have expired, after sight." A promissory note, payable on demand, is due immediately, and a suit may be brought upon it without demand, and the moment it is executed, the statute of limitations begins to run upon it from its date.* When the contract or promise is such that there is no breach of it until a request or demand is made, the action may be commenced within the period mentioned in the statute, after the request has been made.* If, however, no cause for delay to make the demand or request appears, it should be made witiiin the time limited by the statute for bringing the action ; and, in the absence of special circum- stances, if no demand be shown within the time limited by the statute, a demand will be presumed at the expiration of that pe- riod, from which time the statute will begin to run.' If you agree to pay me fifty dollars when S. marries, and forty years afterward S. marries-, the right of action accrues ir^me- diately after the marriage, and not at the time of the promises When the breach of a contract is attended with special damages, the statute runs from the time of the breach, and not from the time when it was discovered.'' Thus, when the defendant, a sur- veyor, was employed to survey lands, and did it iinskillfuUy, which the plaintiff did not discover until more than fifteen years :afterward, and then sued for a breach of the contract, the cause of action having accrued immediately after the survey, the plaintiff was held to be barred of his action.^ But we have already stated that an action for relief, on account of fraud, is not deemed to ac- crue until the discovery of the fraud. The cause of action for the wrong conversion of goods arises when the defendant converts the goods to his own use. A conver- fiiou takes place, either by a detention of goods and a refusal to de- liver them up to the owner, when the original possession was not (o) 2 Taunt 323 ; (g) H. Bl. 631. (d; 17 Ohio, 9; 9 Ohio St. 517. (h) 6 Eng. C. L. 25; 5 Id. 288, 408; (e) 1 Taunt. 572. contra, 8 Pick. 74. (f ) 22 Ohio St. 27; 40 Vt. 540; 10 (i) 20 Johns. 38; 4 Ohio, 382. Pick. 112. 636 LIMITATION OP ACTIONS. [OHAR. At what period the statute begins to run. ■wrongful, or when the goods were wrongfully taken and carried^ away. Thus, I leave goods with you, which you use ; and after four years I demand the goods, and you refuse to deliver them. I may sue you any time within four years after the demand; but if you had wrongfully taken and used the goods, I must have sued you within four years from the time you wrongfully took them, or within four years from the time that I knew you to have wrong- fully taken them.J "Where, from the commencement to the termination of an ac- count, charges have been made, each item is barred in six years after the right of action thereon accrued, as if each item were a separate contract, unless, as in other contracts, there has been part payment, or acknowledgement or promise in writing, signed by the party within six years, as stated in the next section.* If there are mutual accounts, or an account made with an understanding- that settlement and payment shall be made at a future time, no- action accrues, nor will the six years commence running until the expiration of the credit. The right of action for contribution between co-sureties accrues -when one has paid more than his proportion of their liability, and. not from the time the suretyship was entered intoi-' In all actions not founded upon a contract, but for a wrong, or- injury, the statute does not begin to run until the cause of action ia complete. (1) Besides a complete cause of action where there is a contract or wrong, it is also necessary, before the statute begins to run, that there should be some person existing who is legally entitled to, or capable of demanding and receiving the thing in question, and suing for it.™ But if a note becomes due, or a cause of action is complete, in the lifetime of the decedent, tho statute begins to run from the time there was a right to sue, and not from the time of granting administration, or letters testamentary." If, however the cause of action accrued after the death of the decedent, the execu- (j) 7 Mod. 98 J 26 Ohio St. 131. (m) 7 Eng. C. L. 65; 10 Ves. 93. (k) 19 Ohio St. 454. (n) 6 Ohio, 42; "Willes, 27. (l)_20J3hio St. 337. See ante, p. 585. (1) It will be perceived, from what is said in the text, that a party can not in general sue upon a contract until there has been a failure on the part of the- defeudant to perform it; nor for an injury, until the injury has been actually committed. IIT.} LIMITATION OF ACTIONS. G3T Szceptions in the statute, and what acts prevent it from operating or running. tor has the time mentioned in the statute after the cause of action" accrued ; and an administrator has the same tin:e after the cause of action accrued, or from the grant of adminiscraiion — whichever event be latest in time. Sec. III. Of the exceptions in the statute, and what acts PKEVENT IT FEOM OPERATING OR RUNNING. The statute provides, that if any person entitled to bring any of the actions above mentioned, except for a penalty or forfeiture,, shall, at the time such cause of action accrued, be within the age- of twenty-one years, a married woman, insane, or imprisoned; every such person shall be at liberty to bring such action, within the respective times limited by the act after such disability is re- inoved_j2 So, if, when a cause of action accrues against a person, he be out of the state, or have absconded, or concealed himself, the period limited for the commencement of the action will not begin to run until he comes into the state, or while he is so absconded or con- cealed; and if after the cause of action accrues, he depart from the- etate, or abscond or conceal himself, the time of his absence or con- cealment will not be computed as any part of the period within which the action must be brought." If bj' the laws of the state where the cause of action arose it was- barred, it is barred in Ohio.?^ But if the party left the state where the cause of action arose and came here before a right of action ac- crued, the action brought here will be governed by our statute of limitations.? If a citizen of Ohio makes a contract in a sister state, and while there, with a resident of such state, and to be performed there, the right of action will, when the contract is sued on here, be governed by the statute of limitations of the sister state.? If an action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such (o) Kev. Stat., §§ 4986, 4989 ; and see 17 the plaintiff has the year men- Ohio St. 229; 12 Id. 620; 11 tioned in the text to commence Id. 690; 16 Id. 566, 498. Under a new action. 17 Ohio St. 225. the code, the ap.rvina of a sum- (pj 14 Ohio St. 437 | 16 Id. 145 ; 11 mons is required to he made Id. 690; 7 Ohio (pt. 1), 246) before the return day. Where 229. s eryic e is made on the return (q) Kev. Stat., J 4990. See 26 Ohio, day, it is irregular, and may St. 46. — ' ' be set aside; and if set aside, 638 LIMITATION OF ACTIONS. [CHAP. Acknowledgment of delit. ■action, otherwise than upon its merits, and the time limited for the same shall have expired, the plaintiflF, or, if he die and the cause of action survive, his representatives, may commence a new action, within one year after such reversal or failure." A party can not avail himself of a succession of disabilities, but of only such as existed when the right of action first accrued." As to actions before justices of the peace, the action is deemed commenced upon the delivery of the summons to the constable to be served ; but if the suit is commenced by the appearance and agreement of the parties without summons, then the action is deemed commenced at the time of docketing the case.i The code pi-escribes what shall be deemed the commencement of . an action, as follows :° An action is deemed commenced within the meaning of the statute of limitations, as to each defendant, at the date of the sum- mons which is served on him, or on a co-defendant who is a joint contractor, or otherwise united in interest with him ; where service by publication is proper, the action is deemed commenced at the date of the first publication, which publication must be regularly made." An attempt to commence an action is also deemed equivalent to the commencement thereof, within the meaning of the statute of limitations, when the party faithfully, properly, and diligently en- deavors to procure a service ; but such attempt must be followed by service within sixty days." In any ease founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an ex- isting liability, debt, or claim, or any promise to pay the same, shall bave been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledg- ment, or promise ; but such acknowledgment or promise must be 'in writing, signed by the party to be charged thereby." The acknowledgment must be such as admits of an existing liability. If, therefore, there be anything in the letter or writing to repel or destroy the inference of an admission that the defend- ant is bound to pay the claim, such acknowledgment will not take the case out of the statute, but it will continue barred.^ The ac- knowledgment, promise, or payment, by one of the several makers of a joint promissory note, is binding on the others, and may il)e given in evidence in a suit against all or either of them.' (o) Bev. Stat., § 4987 et seq. (a) 11 Eng. C. L.127, per Bbst, C.J. (q) Rev. Stat., g 6473. (t) Doug. 652. (r) Eev. Stat., § 4992. (u) 30 Ohio St. 491. irV. LIMITATION OP ACTIONS. 639 Acknowledgment of cLebt. So, a letter from one of the makers of such note to another of the makers, desiring him to " settle the money," is a sufficient acknowledgment.™ An express and unequivocal acknowledgment by one partner, in writing, of an existing claim against the part- nership, will bind the firm.' But if a note be joint and several, an acknowledgement can operate only upon the one making the acknowledgment.^ If, however, a payment has been made on such joint and several note, but by whom does not appear, such payment will operate as an acknowledgment of all the makers of the note.y In a suit on an account a credit given as a part pay- ment made after the account was barred, will not be deemed a pay- ment under the statute, unless it further appear that such credit was intended by both parties as a payment on the account* As between the estate of a deceased debtor and his creditor,' the stat- ute does not run against the claim after it has been presented to and allowed by the administrator ; for in such case the creditor can not sue.* But this rule does not apply to proceedings to revive an action or judgment against the decedent.'' The payment of a dividend, bj' the assignee of an insolvent debtor is not such a part payment as will take the residue of the debt out of the statutory limitation.'' Causes of action subsisting when the code of civil procedure took effect, July 1, 1853, are not affected by the provisions of the code, which are set forth in this chapter ; and it will be observed that the old statutes of limitation allowing verbal promises to pay to re- vive a cause of action is only applicable when a cause of action ex- isted July 1, 1853, and the verbal acknowledgment was made before such cause of action was barred under the old law." (u) 3 Camp. 82. v((z) 29 Ohio St. 569. (v) 2 Eng. C. L. 480. ■'^(a) 31 Id. 424. (w) 16 Ohio St. 566. (b) 29 Id. 577. (x) 25 Ohio St. 349. (c) 19 Ohio St. 413 ; Eev. Stat, i 4974 . (y) 29 Ohio St. 245. •€40 MABEIAGES. [cHAP. Who may intermarry — ^License and certificate — "Who may solemnize. CHAPTEK LV. MAREIAGES. Males of the age of eighteen and upward, and females of the •age of sixteen and upward, not nearer of kin than second cousins^ and not having a husband or wife living, may be joined in mar- riage." But male persons under the age of twenty-one, and females under eighteen, must first obtain the consent of their fathers, or in case of the incapacity or death of their fathers, then of their moth- ers or guardians." Ten days previous to a marriage, and on two different days of public worship, notice must be given in the presence of the con- gregation, of the intended marriage; or a license must be obtained from the probate judge, in the county where the female resides." The certificate of the marriage must be made out, and signed by the justice or minister solemnizing the same, and transmitted to the probate judge of the county, within three months thereafter,(l) who must record the same.*" The justice or minister failing to -transmit the certificate within that time, subjects himself to a for- feiture of fifty dollars. In Cincinnati, all clergymen and other persons authorized to solemnize marriages, must keep a registry of all marriages solemn- ized by them, and report to the board of health, as often as it may require all such marriages so registered. Neglect or refusal to perform any of these duties will subject the clergyman or magis- trate to a fine of fifty dollars." If a person not legally authorized, attempts to solemnize mar- Tiages, he subjects himself to a forfeiture of five hundred dollars. .So, if a justice or minister solemnize the same, contrary to the true (a) Kev. Stat., g§ 6384-6389. (o) Rev. Stat., gg 2117, 2120. (b) Rev. Stat., | 6391. (1) Form of a certificate of a marriage. county, ss. On the day of , in the year , I solemnized the marriage of A. B ^ittCD. G.H.,j.p. Jl-V.] MARRIAGES. 641 Form. intent and meaning of the statute regulating marriages, upoa r^onviction, he forfeits not exceeding one thousand dollars.* These fines are recovered by a civil action, with costs of suit, in any court ■of record having cognizahce of the same.' Except in cases where a licence has been obtained from the pro- bate judge, the justice or minister, before he marries the parties, should be satisfied that publication of the bans has been duly made in church, and where the consent of the parent, guardian, -or mother is necessary, that it has been obtained. For this purpose, the justice or minister should have either their personal consent, or their written consent over their signature, attested by one or more credible persons, who must personally appear before the justice or minister, to testify that the written consent was actually signed by the parent or guardian.' No particular form of marriage ceremony is required by law. Its substance consists in each expressing their agreement to become 'husband and wife before the magistrate, and his receiving the decla- i-ation in his official capacity, as a consummation of the marriage. "The following may be adopted : If any one can show just cause why these two persons should not -be lawfully joined together in the holy bands of matrimony, let him now publicly declare it. [^Thepersons to be married joining hands — say to the man:'] Wilt thou have M. E. to be thy wedded wife ? Wilt thou love her. com- fort her, honor and keep her, in sickness and in health, and for- «aking all others, keep thee only to her, so long as ye both shall live? Dost thou promise this in the presence of Almighty God, the searcher of all hearts ? \_Tothe woman:'] Wilt thou have this man to be thy wedded tusband? Wilt thou obey him, love, honor, and keep him, in fliekness and in health, and forsaking all others, keep thee only unto him. so long as ye both shall live? Dost thou promise this in the presence of Almighty God, the searcher of all hearts ? Forasmuch as M. and N. have pledged their troth in holy wed- lock, I pronounce that they are man and wife. Those whom God faath joined together, let no man put asunder. (d) Eev. Stat., ? 6892. (f ) Kev. Stat., i 6893. (e) Rev. Stat., ? 6394. C12 MARKIAGES. LCHAP, Illegal solemnization. The probate judge who knowingly issues a license, and any per- son who knowingly solemnizes a marriage between a person of pure white blood and a person having a distinct and visible admix- ture of African blood, is liable to be fined one hundred dollars, oj imprisoned three months, or both, at the discretion of the court* (g) Rev. Stat., ? 6988. ./ IiVI.] MORTGAGE OF GOODS. 643 What are void as to third persons, and what are not. CHAPTER LVI. MORTGAGE OF GOODS.(l) SEti. I. What mortgages or goods are void as to third persons, AND WHAT ARE NOT. II. When and how mortgages mat be renewed. III. Fees for filing and for copies, etc. IV. Eights op parties — effect of default in patjUent. Sec. I. What mortgages of goods are void as to third per- sons, AND what are not. When possession of goods is not delivered to the mortgagee at the time a mortgage is made, or if such possession is not continued in the mortgagee, it is necessary, in order to make the mortgage effectual as against subsequent purchasers or mortgagees, that the mortgage, or a true copy, should forthwith, after its execution, be deposited with the clerk of the township where the mortgagor re- sides at the time of the execution thereof, if a resident of the state ; (1) For the form of a mortgage of goods, see post. Part IV. As to levy by eiecution upon mortgaged goods, see ante, Chap. 25. see. 6. As to attachment of mortgaged goods, see see. 4 of this chapter. As to replevin of mortgaged goods, see post. Chap. 62. Where the owner of real property perpetually leased the same, with certain machinery and utensils thereon, the entire machinery and utensils constituting and used as a factory, reserving a lien on the whole for the purchase money and rents, but with liberty to the lessee to renew, by removing at his pleasure any portion of the machinery, upon condition that he should, at the ti)ne of removal, substitute others equally as good, it was held that this reservation of lien was not, in legal effect, a chattel mortgage upon the movable parts of the machinery, and need not, in order to its validity, be verified and filed as a chattel mortgage for the machinery and utensils, as between lessor and lessee, but must be regarded as appurtenant to and forming a part of the real estate, and the whole a unit; and such lien is superior to that of creditors of the les- see levying upon the movable parts of the machinery by attachment. 23 Ohio St. 114, 120. 41 644 MORTGAGE OF GOODS. [OHAP Requisites, and when valid, etc. and if not such resident, then with the clerk of the township in which the property mortgaged is situated at the time of the exe- cution jf the instrument ; but when the mortgagor is a resident of. a township in which the office of county recorder is kept, or when he is a non-resident of the state, and the property is within such township, the mortgage must be filed with the county recorder.* The officer indorses on the instrument the time of his receiving it, and makes an index of persons, dates, etc.'' It is not necessary to record the mortgage, but the officer, if requested, will do it. A certified copy of such record will be admitted in evidence, but the record itself will have no other or further ope;ration or effect;" and a certified copy of such original instrument, or of a copy thereof, filed as aforesaid with renewals and indorsed statements, will be received in evidence, but only of the fact that such instrument and statement was received and filed according to the indorsement of the officer thereon, and of no other fact; and in all cases the original indorsement by the officer upon such in- strument or copy will be received in evidence only of the facts stated in such instrument." If other mortgagees have been misled, to their injury, by the neglect of the officer to file, indorse, or in- dex, etc., their remedy is against the officer.* Before filing, the mortgagee, his agent or attorney, must enter on the mortgage, if given for the payment of a sum of money only, a true statement in dollars and cents of the amount of his claim, and that it is just and unpaid. If the mortgage is given to indemnify the mortgagee against a liability as surety for the mortgagor, the entry thereon must be a true statement of such liability, and that the instrument was taken in good faith to indemnify against any loss that may result therefrom. The statement must, in either case, be verified before the clerk of the township,* or other officer authorized to administer oafbs.' The verification may be certified by a notary without his seal.* If the statement contains the requisite facts its form is immaterial,'" but without a statement, the filing, etc., will be invalid, even as against an assignee for the benefit of creditors.' (a) Eev. Stat., § 4151 ; 26 Ohio St. 06. (b) Eev. Stat., ? 4152, (c) Eev. Stat, 5? 4150, 4142. (d) 16 Ohio St. 548 1 13 Id. 532 ; 20 Ohio, 206. (e) Eev. Stat., ? 1505. {f ) Rev. Stat., ? 4154. See 11 Ohio St. 232 ; 12 Id. 38 ; 5 Id. 78, as to description of the debt under the old law. (g) 19 Ohio St. 291. (h) 31 Ohio St. 551. ,(i) 26 Ohio St. 549. LVl.] MORTGAGE OP GOODS. 645 Form of indorsement, etc. — Of statement, etc. Form of indorsement when the mortgage is given for the payment of money only. The State of Ohio, county, ss. The undersigned makes oath and says, that he is the [agent or say, attorney, of the within-named C. D., the] mortgagee wilhiu named. That he, the said C. D., has a valid an^ subsisting debt and claim against the said A. B. within named, amounting to the sum of dollars cents, and the same is just, bona fide, and unpaid; and said mortgage is given to secure the same. [Signed,] Sworn to and subscribed before me, this day of , A. D. 18—. - " G. H., Justice of the peace in and for county. Form of statement tOhen the mortgage is given to indemnify the mort- gagee. The State of Ohio, county, ss. The undersigned, C. D., niakes oath and says, that he is the mort- gagee within named ; that on the day of , 18 — , he be- came surety for the within-named A. B. on a certain [here describe the instrument as thus : note executed by the said A. B. as principal, and the undersigned as security, for the sum of dollars, dated day of , 18 — , payable on the day of , 18 — ,] and he verily believes said claim is just and unpaid. And the undersigned further makes oath and says, that this mortgage is taken in good faith to indemnify him against any loss that may result from his said suretyship. [Signed,] C. D. Sworn to and subscribed before me this day of , a. d. 18—. G. H., Justice of the peace in and for county. If the mortgagee takes possession of the goods mortgaged when the mortgage is executed, and continues to hold possession, it is not necessary to deposit the mortgage, or a copy, with the recorder or township clerk, to' render the mortgage effectual and valid. If, however, possession does not accompany the mortgage, and after- ward continue in the mortgagee, and neither the mortgage nor 646 MORTGAGE OF GOODS. [CHAP, When and how renewed — Proof of filing, etc. a copy is filed with the recorder or clerk, as required by law, a suh- equent purchaser, or mortgagee, in good faith — that is, having no notice of the mortgage — will not be affected in any way by the existence of the mortgage ; for, as to such purchaser or mortgagee, the mortgage will be absolutely void." A mortgage of goods not accompanied and followed by posses- sion in the mortgagee, will be valid and effectual as between the mortgagor and mortgagee, although neither the orignal nor a copy is filed with the recorder or clerk ; for it is only subsequent pur- chasers, lienholders, mortgagees, and third persons, that the statute is intended to protect.' But the administrator of the mortgagor will hold the goods as assets.* Although the statute requires the mortgage, or a copy of it, to be forthwith filed, yet the consequence of a delay of several days, or even several weeks, will not, if afterward filed, affect its validity as against subsequent purchasers, mortgagees, or other creditors, etc., whose rights attach after it is filed. Until placed in the proper office, however, it will have no effect whatever as against pur- chasers, mortgagees, or judgment creditors,' who cause a levy to be made on the goods, or whose rights attach before it is actually filed. A temporary withdrawal of the mortgage from the office of the township clerk or recorder will not affect the rights of the mort- gagee.' A mortgage by one to another, to indemnify him for becoming surety for him, or for making future advancements, is valid, and covers all liabilities incurred and advances made, prior to the attachment of, or the creation of any other lien to the same prop- erty .s But the future responsibilities or amount should be defi- nitely expressed in the mortgage.'' A resei-vation that the mortgagor may sell the goods as his own, renders the mortgage void ; but if he is to account for such sales, the I'eservation, it bona fide, is valid.' A chattel mortgage of certain property, and also such property as should be acquired afterward, creates no lien on the subsequently acquired property. "When Such mortgage authorizes the mortgagee to take possession of the property secured, and attempted to be secured, it is a continuing, unexecuted contract, and when the (e) Eev. Stat., ? 4150; 7 Ohio St. 190. (h) 2 "Wend. 596. (f ) 20 Ohio, 166. (i) 20 Ohio St. 110; 16 Ohio, 547 ; 7 (g) 16 Ohio, 253; 17 Id. 371; 7 Id. Ohio St. 218; 5 Id. 1. (pt. 1), 225. As to mortgages (k) 29 Ohio St. 264. See 26 Id. 659 in another state, see 7 Ohio St. 134, and post, p. 649. LVI.] MORTGAGE OF GOODS. 647 Bequisites, and when valid, etc. mortgagor acquires such property, after the execution of the mort- gage, and actually delivers the same to the mortgagee, the latter thereby acquires a valid lien on such subsequently acquired property.^ WiiCn a debtor has made a f raudulent sale of his goods to cheat creditors, any creditor of such debtor may, it seems, take an effect- ual mortgage from him of the same goods, to secure a debt; and such mortgage is not invalid as against other creditors of such debtor^ Under a statute similar to the one under consideration, in Massa- chusetts, it has been held that a mortgage duly filed was valid against a creditor of a mortgagor, although there was no actual or constructive delivery of the property, it being so described as to be identified,' as thus: "all the tools in my shop." The description of a machine in a chattel mortgage by the name by which it is usually known, and as being in a certain place, is sufficient, although the machine is in an unfinished state. If the article named is in such a state of completion at the time the mort- gage is made, that from its appearance persons acquainted with such article or machine would know it by the designation given to it in the mortgage, the description is sufficient, although other and material parts were necessary to be added to make it complete."" It will be observed from what is hereafter said that chattel mort- gages can be kept in force as against creditors only by successive filings in the proper office from year to year. The lapse of a full year, without a renewal of the filing, will at any time render the instrument invalid as against creditors. Each filing places it, for the purposes of notice, on the footing of a new mortgage." Hence a mortgage not refiled within a year from the time of its first filing will lose its priority. over a subsequent mortgage taken without actual notice and filed within the year.? But a person taking a mortgage with actual notice of an unsatisfied prior mortgage upon the same property, is not a mortgagee in good faith, and can not set up his mortgage as prior in lien.i There were three mortgages upon the same chattels, executed ( j) 4 Ohio St. 481. As to mortgages (m) 7 Ohio St. 194. hy railroads, see ante, p. 283. (o) 16 Ohio St. 209. ' K(k) 20 Ohio St. 389. (p) 14 Ohio St. 488. See post, p. 64& (1) 16 Pick. 83 ; 16 Ohio, 516, 120. (q) 14 Ohio St. 488 ; 7 Id. 198. 648 MOETGAGE OF GOODS. [OHAP. Kequisites, and when valid, etc. and filed under the following circumBtanceff^ The first mortgage ■was filed, but lost its priority of lien by not being refiled at the end of the year ; the second mortgage Avas filed with actual notice of the prior first mortgage; the third mortgage was afterward duly filed without notice of the first mortgage. y^ The several liens will stand thus : The third mortgage is subject to the priority of the second; the second mortgage, though it has a prior lien over the third, is subject to the prior- lien of the first having actual notice; the first mortgage, although it has a prioi lien by notice over the second mortgage, is subject to the prior lien of the third, as the third was duly filed without notice of the first, which lost its lien by omission to reflle. The fund not being suffi cient to satisfy all the mortgages, will be distributed in the mannei and order following : First, to the third mortgage, so much of the fund as would be applicable to its debt, if the second mortgage were first satisfied out of the fund. Second, to the second mort- gage, so much of the whole fund as would be applicable to its debt, if the j^rsi mortgage were first satisfied, and this without reference to the third mortgage. Third, to the first mortgage, the residue,!— The priority of lien of a chattel mortgage upon a frame building not a part of the freehold, subsequently removed by the mortgagor to and upon other lands, is not defeated or afi'ected by a subsequent real estate mortgage upon such other lands, given by the same mortgagor to a mortgagee having full knowledge of the prior chat- tel mortgage.^ An equitable lien on personal property must yield to a mortgage duly filed. Thus, a stipulation in an unrecorded lease, that the les- see will not remove his furniture from the premises while any of the rent remains unpaid, can not be set up as a superior lien to a mortgage of the furniture made by the lessee, while the rent was due, to a bona fide creditor having no notice of such equitable lion.' It seems that if A., to defraud his creditors, colludes with and conveys his goods to B.; and a creditor of A., who has knowledge of the fraud, obtains from B. a mortgage of the goods to secure his debt due from A., and without the knowledge of the latter, such mortgage obtains a preference over other creditors of A., and the mortgage lien will be enforced against them.'' - J^r) 14 Ohio St. 488. (t) 19 Ohio St. 145. ^8) 16 Ohio St. 815. f^u) 8 Ohio St. 246. See ante, p, 647 LVI.] MORTGAGE OF GOODS. 649 Eequisites, and when valid, etc. Where p^agxial property has been mortgaged in another state, and the mortgage there duly recorded under a statute similar to that of Ohio, and the property is afterward removed to Ohio and there sold to a bona fide purchaser without notice, the mortgagee may, notwithstanding, enforce his mortgage against the prop- erty. (1) y A mortgagee of goods who purchases a claim secured by a prioi attachment lien on the property, acquires an equitable lien foi the money thus expended as against attachments subsequently levied.'' Thus, where one takes a mortgage upon personal property to secure a debt, and the property is at the time held by an ofBcer under an attachment issued against the mortgagor by another cred- itor, if the mortgagee obtains an assignment of the claim of the attaching creditor, he is entitled to possession from the oflBcer ; and if afterward other creditors of the mortgagor attach the property, the equitable lien of the mortgagee, for the money expended by him in obtaining the assignment of the claim of the first attaching creditor, is prior in right to the creditors who aUached after the execution of the mortgage.^^ After the condition of the mortgage is broken, creditors of the mortgagor may attach the interest of the mortgagor in the prop- erty; and if, in such case, the mortgagee replevies the property from the oflScer, the attaching creditor will retain in equity a lien for the surplus of the pi>oceeds of the sale of the property under the mortgage, after satisfying the mortgage.'" Where a mortgagee rightfully recovered, by replevin, possession of the goods, and fairly sold them at less than their replevied value, it was held, in a proceeding against him to account for their value, that he was chargeable only for the proceeds of the Bale.' The statute provides^ that any mortgagor of jjersonal property in possession of the same, who, without the consent of the owner ^^(v) .18 Ohio St. 184. (x) Eev. Stat., § 6849. (w) 14 Ohio St. 457. V" (1) 7 Ohio St. 134. In a suit on the chancery side of the court to foreclose a chattel mortgage, where the court has jurisdiction of tno parties in interest, it is not necessary to a decree of foreclosure of the mortgage, and the sale of the property, that the property should be within the territorial jurisdiction of tho court, or within the state. ^2 Ohio St. 622. 650 MORTGAGE OF GOODS. [CHAP. "When and how renewed. of the claim, removes any of the property out of the county where it was situated when it was mortgaged, or secretes or sells the same, or converts the same within said county or elsewhere, or sells or converts the same, or any part, to his own use, with intent to de- fraud, shall be fined not exceeding five hundred dollars, or impris- oned not exceeding three months, or both. Sec. II. "When and how a mortgage mat be renewed. The statute provides that " every mortgage, so filed, shall be void as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith, after the expira- tion of one year from the filing thereof, unless within thirty days next preceding the expiration of the said terra of one year, a true copy of such mortgage, together with a statement exhibiting the interest of the mortgagee in the property at the time last aforesaid claimed by virtue of such mortgage, shall be again filed in the office where the original was filed.^ The new statement must be verified, as hereinbefore mentioned, by the oath of the mortgagee. The effect of this section is to render the mortgage valid for the term of one year only, under the orignal filing, as against the classes of persons specified in the section, and to make another filing, with a statement of the mortgagee's interest then subsisting in the property, necessary to its continued validity ; and successive refilings, at intervals not exceeding one year, are necessary to the continuance of the efficacy of the mortgage, as against creditors and subsequent bona fide purchasers or mortgagees. If, however, at or before the expiration of any filed year, the mortgagee takes and retains possession of the goods under the mortgage, a refiling of the mortgage is unnecessary to the continuance of its efficacy.' The year within which any filing must be made begins to run from the exact time of the preceding filing, and is completed at the exact corresponding day and hour of the following year.^ The statement of the interest of the mortgagee, abovp required (x)- Eev. Stat., ? 4155. (z) 7 Ohio St, 198. (y) 16 Ohio St. 209; 2 Sand. S. 0. (N. T.) 299. See ante, p. 647. LVI.] MOETGAGE OP GOODS. 651 How time of filing proved — Foes for filing and for copies. may be indorBd on the copy of the mortgage, (or on the orignal, and refiled,) and in the form following:^ Form of indorsement on refiling the mortgage, being for a debt. The State of Ohio, county, ss. The undersigned, M.. M., makes solemn oath, and says, that the interest of the undersigned, mortgagee, in a certain mort- gage, of which the within is a copy, is at the date hereof as fol- lows : The amount at this date, principal and interest, of the debt secured hy, and mentioned in said mortgage, is dollars cents, and which is just and unpaid, and my estate and property in all the goods and chattels in said mortgage described, remains perfect and unimpaired to secure, etc., said sum, with interest, according to the terms mentioned in said mortgage.- [Date.] M. M. Sworn to and subscribed before me, this day of , A. D. 18—. G. H., Justice of the peace in and for county. Form of indorsement to accompany a refiling of mortgage, taken by surety. The State of Ohio, county, ss. The undersigned, M. M., makes solemn oath and says, that he is the mortgagee mentioned in a certain mortgage, of which the within is a copy. That his interest in the said mortgage is, at the date hereof, as follows : His liability as surety for the debt and as stated in said mortgage and indorsement thereon still exists, [to the amount of, etc., according to the facts,] and which said sum re- mains due, is just, and unpaid, as he verily believes; and that his interest and estate in the property mortgaged, and his liability as surety, remains perfect and unimpaired for the purposes above mentioned. M. M. [Date.] 5 Sworn to and subscribed before me, this day, etc. G-. H., Justice of the peace in and for, etc. Sec. III. Fees for filing and for copies, etc. For filing instrument or copy, six cents; for searching each paper, six cents ; for making the entries upon the filing of an in- strument, six cents for each party thereto ; for recording the in- (a) 16 Ohio St. 209. 652 MORTGAGE OF GOODS. [CHAP. Eights of parties — Effect of default. strument (to be paid by the party requesting it), ten cents for each hundred words ; for recording any iifRdavit, credit, or statement added to an instrument between the time of its record and refiling, twenty-five cents ; and for certified copies, the usual fees of. county recorders." Sec. IV. Eights op parties — effect of default in payment. The property mortgaged, after default in payment, vests in the mortgagee, and he-may bring an action to recover the possession, from the mortgagor and from any one claiming under the m.ort- gagor,* unless the terms of the mortgage be otherwise. Where, by the terms of the mortgage, the mortgagee was author- ized to take immediate possession of the proj)erty mortgaged, and before default, another creditor of the mortgagor levied upon and removed the property out of the township, it was held that the mortgagee might maintain replevin for its recovery.^ If the mortgagee received payment before or after default, the property thereby reinvests in the mortgagor.^ But tender after forfeiture does not reinvest the mortgagor with the title to tlio goods.s Where the property is attached by creditors of the n.t 291. tion upon mortgaged goods, see (e) 19 Ohio St. 291. ante, p. 282. (f) 2 Pick. 206; 1 Port. 423. (i) Eev. Stat., §§ 4157, 415.3. (g) 12 Wend. 61. (j) 82 Ohio St. 29. LVII.] NEGLIGENCE. 653 General principle — Omission of duty, etc. CHAPTER LVII. NEGLIGENCE. Sec. I. General principle. II. Omission op duty — implied duties op the owner op peop- ertt, III. Inevitable and other accidents. IV. Contributory negligence, and injuries at railroad CROSSINGS. V. Fires — proximate and remote results op negligence generally. Sec. I, General principle. Under various other titles the liability of persons for negligence is discussed under their appropriate heads. The reader must there- fore be referred to the Index, on most subjects of negligence. In genera], a person performing a lawful act is not responsible for an injury arising therefrom, unless it be occasioned by his own negligence or wantonness ; and the burden of proof of negligence is also in general on the plaintiff. °, The general principle is, that negligence, to make it a cause in a legal sense, must be such that by the usual course of events it would result (unless independent disturbing moral agents intervene) in the particular injury.' Sec II. Omission op duty — implied duties of the owner op property. Mere omission, unless involving non-performance of a legal duty, is not actionable ; but when the omission is a defect in the discharge of a legal duty, it is actionable, and the party injured may recovei (a) Per Whitk, J., 24 Oliio St. 667. ^ (b) 33 Ohio St. 804. 654 NEGLIGENCE. [CHAP. Omission of duty — Implied duties of owner of property. damages for tho direct consequences, unless the latter also con- tributed to the direct consequences. Thus, an attorney at law, surgeon, or other professional man, is bound to exercise the ordinary care and skill of his profession ; and when employed for fees to do a professional act, his liability ox- tends no further than the implied duty, in tho absence of an express special agreement, to indemnify the client or patient from tho inju- rious consequences resulting from his want of the proper degree of professional skill, care, or diligence, in the execution of his em- ployment. It is not enough for the plaintiff to show that there was malpractice, but it must further appear that some injury re- sulted from the malpractice to entitle the plaintiff to recover.'' If a j)atient neglects to obey the reasonable instructions of the Burgeon, and thereby contributes to the injury complained of, he can not recover for such injury. In such case, the information given by the surgeon to his patient, as to the nature of his malady, is a circumstance that should be considered in determining whether the patient, in disobeying the instructions of the surgeon, w.as guilty of contributory negligence." One is responsible to strangers and third persons for injuries by negligence in the use of his own property, or in pursuing his own private advantage or pleasure. Therefore, one in the possession or occupation of lands, buildings, or other erections, is bound to keep them in such condition, and to conduct operations thereon in such manner as is consistent with the safety of persons, exercising rea- sonable care, and being where they have a right to be. In such cases of injury there is prima facie negligence. This principle has governed, and is illustrated by, hundreds of reported cases. Thus, if a railroad company's bridge over a highway is so out of repair that a brick is loose and falls upon a person passing along the highway, the company is liable; and the falling of the brick is prima facie evidence of negligence, to be rebutted by showing that the bridge had been examined by proper persons from time to time.* So, a person or corporation privileged to make and maintain public works, and to charge or take tolls for them (such as a. toll- bridgfe, turnpike, dock, etc.), and who has omitted the performance (b) 17 Ohio St. 253 j 18 Id. 492. volving upon public ofScers, (c) 25 Ohio St. 86. As to duties de- see ante, p. 855. (d) L. B., 5 Q. B. 411. LVII.] NEGLIGENCE. 655 Omission of duty — Implied duties of owner of property. of duty to make or maintain the works so as to be in a reasonable state of efficiency, is liable, for any damage thereby accruing to an individual while using the same;« but a mere idler or spectator, having- no business there with the company, or any business con- nected with the operations of the company, must take the risks of the inefficiency of the company's works and buildings.' And this rule applies to common carriers by steamboat or rail- road, in maintaining in repair a gangway or platform and the like, used by them; such conveniences being within the undertaking of common carriers, for which they receive fares from passengers. So, where a railroad company is authorized by its charter to divert the location of a highway, the right must be exercised with due care ; and the company will be liable for injuries sustained by travelers on the highway, who are not in fault, if by reason of the negligence of the company in not erecting proper barriers to guard travelers from driving into cuts or excavations made in the high- way by the company.' And where a person or corporation, under a statutory enactment, is empowered to break up a highway or street for a temporary purpose, it is the duty of the person or cor- poration to reinstate it ; but not, it seems, to answer for the conse- quences of the subsequent natural subsidence of the soil, unless the statutory enactment expressly or constructively requires the sub- sidence to be repaired by such person or corporation.e Eeasonable care must be exercised in excavations and building, so as not to injure the foundations and walls of an adjacent build- ing. The owner or possessor of a city or village lot, is by the munici- pal code,"" made liable for damage, occasioned to buildings on any adjoining lots, by excavation which he may make on his own lot, to the depth of more than nine feet below the cui'b of the street, or if there be no curb, below the surface of the adjoining lots. The word " surface '* here, is to be understood as designating the actual existing surface, whether natural or the result of filling or grading the lots. An owner, however, may excavate to the full depth of the foundation walls on the adjoining lots; and, if there be nu established grade of the street, then to the depth of nine feet below (e) 1 H. L. 93; 29 Ohio St. 374; L. (f) 20 Oliio St. 150; 49 Maine, 119. E., 1 Q. B. 711. As to who are (g) 21 Ohio St. 421 ; 31 Id. 338. principals, and may be sued in (h) Eev. Stat., §J 2676, 2677. such cases, see ante, p. 349. (i) 29 Ohio St. 364. 656 NEGLIGENCE. [t!HAP. Inevitable and other accidents. the grade: so that a party is Bubject to the liability mentioned, ■where he makes an excavation on his lot deeper than the foundation walls on the adjoining lots, and more than nine feet below the actual surface ; and, if the street is either curbed or gi'aded, he is liable if he makes his excavation deeper than the foundation walls on the adjoining lot and more than nine feet below the curb or grade. But if he goes down the nine feet, he is not bound to sup- port an adjoining wall of less depth.^ Sec. III. Inevitable and other accidents. A person is not responsible for an accident consisting of an ex- traordinary interruption of natural laws, producing an event which ordinary prudence could not foresee or avoid. This is sometimes called the act of God. It is an injury arising from fortuitous oc- currences beyond the control of man.J This principle has been applied to an accident arising from foggy weather ; where a rat made a hole in a box where water was col- lected in an upper room, so that the water trickled out and flowed upon the plaintiff's goods in a lower room;* where horses take fright without any default in the driver or any defect in the har- ness, or known propensity in the animals, and injure the plaintiff.^ So, an unusual water flood, of a character not to be foreseen, breaking down a well-constructed dam and injuring property be- low ;™ or delaying or preventing safe transportation by a common carrier;" or saturating a heap of earth piled up against an adjoin- ing wall so that the latter fell" — ^these were deemed inevitable accidents, and no one responsible for them. So, where one driving in the highway, with all due care, runs over a child whom he could not reasonably be expected to see, is not liable.^ But the defendant must be free from fault. -Thus, one who drives a carriage against a person, although he exercise the utmost care to avoid the injury, yet, if the defective condition of his reins prevented him from avoiding the collision, he is liable. The negli- gence consists in his using defective reins.i X (i) 23 Ohio St. 560 ; 27 Id. 306. (m) 8 Cowen, 175. { 1) 42 N. T. 484. (n) Angell on Con. 153. (k) 6 Exch. 217. (o) Whar. on Neg., sec. 114. (1) 30 Wise. 257; 1 Bing. 213. (p) 21 "Wend. 615. V/(g) 29 N. Y. 115 ; 8 C. & P. 691. As to leaving a horse unhitched in the street, see ante, p. 370. If one take the left, instead of the right, side Of a highway, he must use more care to avoid collision, 82 Ohio St. 142. I,VII.] NEGLIGENCE. 657 Contributory negligence, and injuries at railroad crossings. An idle act, whereby another is injured, if done at a place and under circumstances which a prudent and careful person might do without apprehending an accident therefrom, will not render a per- son liable to an action. Thus, where a stone was thrown at a bird in a garden, which hit the plaintiff's eye, the defendant having no reason to expect any such casualty. So, one hunting in a wilder- ness and hitting another when shooting at game.' But such things, if done in a town, or under circumstances de- manding the slightest care, would be actionable. Injuries from the careless use of fire-arms are actionable.^ One who indulges himself, even on the fourth of July, in the dis- charge of fire-works or fire-crackers in the street or highway, or in any place to which he has not a private right, is liable for anj' injury thereby caused to another.* No one is liable for an injury pi'oduced entirely by want of dis- cretion on the part of a child who suffers from it, as for example where a child suddenly throws itself in the way of a horse and is run over before the driver can prevent it." The negligence of the parent or guardian is not to be imputed to a child too young to exercise care, when the action is brought by the child ;^ but such contributory negligence will have its full weight if the suit is brought by the parent or master, for the loss of service caused to him by an injury to the child.'" And if the infant is intrusted to the care and custody of another by the father, and is injured through the negligence of a railroad company, the custodian of the child also being guilty of negligence contributing to the result, although the infant may maintain an action for such injury, the father can not; the negligence of his agent, the custo- dian of the child, being in law the negligence of the father,^,^ Sec. IV. Contributory negligence, and injuries at railroad CROSSINGS. These two subjects are treated together, because the rules of law relating to contributory negligence at railroad crossings is equally (r) 16 Ark. 308; Hill & D. Supp. 193; (u) 21 Wend. 615; 49 Barb. 529; 2 11 Exch. 781. Hurlst. & Coltm. 744. (s) 11 Mass. 137; 42 Barb. 480; 2 ,(v) 18 Ohio St. 399 ; 30 Id. 451. ^'t^v, Keyea, 169 ; 1 Stew. (Ala.) 145. (w) 57 Penn. St. 172. - See 72 v. Laws, 44. )^x) 24 Ohio St. 670. - - ■ i , (t) 29 Barb. 218. ^ 658 NEGLIGENCE. [CHAP. Contributory negligence, and injuries at railroad crossings. applicable to all cases in which the plaintiff brings his action to recover damages for an injury resulting from the negligence of the defendant ; and the rules relating to contributory negligence have been more fully discussed and settled in cases of aceidents at rail- road crossings than in any otheri These rules of contributory negligence, in their application to negligence generally, are in no way affected by the peril involved in crossing a railroad, inasmuch as both parties must in such, and in all other cases, exercise ordinary care, according to the peril or circumstances. The general principles of law relating t0 injuries to persons at railroad crossings are these : 1. The right of a railroad company to enjoy the use of its railroad crossing at a public highway, and the right of the public to use the highway, are co-ordinate and equal.y Hence the company are not liable for an injury to a person by a collision at a crossing, unless it was caused by negligence or a want of ordinary care.' 2. Ordinary care must be exercised by each in the use of the crossing. 3. Ordinary care, in view of the peril to passengers of an ap- proaching train, and to a person on a crossing, demands from the engineer and trainmen of the approaching train, by sight and sig- nals, and other reasonable efforts, and from the person on the cross- ing by sight and hearing, and other reasonable efforts, the highest degree of care ;° and this care, exacted from a person approaching or standing on the railroad crossing ortrack, and exacted from the trainmen of an approaching train, is the sanje ; for both are doing an act which may endanger the lives of passengers, and the life of the person crossing or standing upon the track.*" 4. It is the duty of a person approaching a crossing, or standing upon a railroad track where cars are being run, to use his eyes and ears, and to look out for approaching cars ; and if he fails to do so, he is, prima facie, guilty of such negligence as will prevent his recovery for injuries occasioned to him by the mere careless- ness, negligence, or unskillfulness of the employes of the company not amounting to willfulness on' their part." To excuse himself (y) 21 Ohio St. 421 ; 24 Id. 638. (b) 8 Ohio St. 570 ; 24 Id. H9. 681 1 (z) 8 Ohio St. 570 ; 28 Id. 341. 22 Id. 19. (a) 24 Ohio St. 631, 670. (o) 24 Ohio"St. 670; 32 Id 66. LTII.] N£OLIO£NCE. 659 Contributory negligence, and injuries at railroad crossingi. from the use of either eyes or ears, the circumstances must be such as would be calculated to induce a person, in the exercise of th» ordinary care demanded by the peril, to omit the precaution, or to show that it was not reasonably practicable to make or keep such lookout,''(l) on account of intervening obstructions or other rea- sonable cause.' (d) 24 Ohio St. 654, 668, 670; 28 Id. (e) 24 Ohio St. 670, 631; 8 Ohio 341. St. 19. (1) In the case of Bellefontaine E. E. v. Snyder, 24 Ohio St. 670, in which it appeared that immediately iefore the injury the attention of the plaintiff was diverted by the passing express train, and, in the meantime, a gravel train backed down upon the defendant, in consequence of the attention of its brake- man being also diverted to the passing express train, "Welch, J., says : "The degree of care and caution required by the law to be exercised by either party is the same — namely, ' ordinary ' care and caution. " It is denominated ' ordinary ' in the sense that it is such as persons of ordi- nary care and caution usually observe under like circumstances ; and it is some- times denominated the ' highest ' degree of care and caution, in the sense that persons of ordinary care and caution usually observe their highest degree of care and caution under impending danger to life and limb. " It is ordinary care and caution with reference to the class of persons who esercise it, but it is the 'highest' degree of care and caution with reference to the circumstances under which it is to be exercised. " If this be the law of the case, we fail to see on what ground the finding of the jury can be sustained. Both parties were at fault, and the fault of each di- rectly contributed to the accident. " Had either party exhibited that care and caution which the exigencies and perils of the situation demanded, and which persons of ordinary prudence msm- (dly exhibit under such circumstances, the calamity would evidently have been averted. Had the brakeman kept his eyes upon the track, and refused to be diverted for the moment by the passing express train, the accident would have been avoided, notwithstanding the carelessness of the plaintiff; and had he ob- served a similar precaution, the carelessness of the brakeman would have been harmless. It required the carelessness of both to produce the unfortunate re- sult. " The situation of both called for the highest degree of caution and care, for the reason that human life might be imperiled by the slightest relaxation or for- getfulness; and such is the degree of circumspection and caution which persons of ordinary prudence usually exercise imder like circumstances. " I think it can not be too strongly impressed upon the public mind that in eases of the kind in question, involving imminent danger to life, a very high • degree of caution and. care should be exercised by both parties. ' " The care and caution of those in charge of the train should be such as to anticipate and provide against the possible carelessness of persons upoc the 42 €60 NEGLIGENCE. [CHAP. Contributory negligence, and injuries at railroad crossuigs. In general, thei'efore, a person knowingly about to cross a rail- Toad track, who may have an nnobstruoted view of the railroad so ^8 to know of the approach of a train a sufficient time to clearly ravoid any injury from it, can not, as matter of law, recover, although 'the company may have been also negligent) or have neglected to 3)erform a statutory or ordinance requirement, such as failure to leignal by bell or whistle, or the like, for both are in fault.' 5. A person who is partially deaf or blind, while crossing a track, as required to exercise that ordinary care above mentioned, which prudent persons partially deaf or blind, but conscious of their in- firmity, would ordinarily use under like circumstances ; and if such person's vision was also obscured by a veil, such ordinary care, would demand of her the more cautious exercise of her remaining faculties ; and in such case, if her infirmities were unknown to the employes of the company, her deafness, or other infirmity, would not require from them increased care.e 6. Where the parties are mutually in fault, or, in other words, where negligence of the same nature in each party has co-operated to pro- ■duce the injury, the party sustaining the injury or loss is without remedy.'' 7. "Where the defendant has been guilty of negligence in a par- ticular which the plaintifi', by ordinary care, might, but did not ravoid, then the plaintiff is the author of his own injury, and can not recover ;' for in such case, the plaintiff, by the omission of ordi- nary care, contributed to the accident by which he was injured. 8. If the defendant was guilty of negligence, but due care on hia part would not have prevented the injury complained of, the plaintiff can not recover, for then the negligence of the defendant ■did not, in fact, cause the injury; and whether it was the result of (f) 'Whar.onlireg.,sec. 384; 28 0hio 20; 24 Id. 119, 642, 654; 83 St. 341 ; 32 Id. 66, 494. Id. 246. (g) 8 Ohio St. 570 ; 22 Id. 1, 19. (i) 6 Ohio St. 105, and cases there (h) 3 Ohio St. 172 ; 6 Id. 105 ; 22 Id. cited ; Whar. on Neg., sec. 326. track ; and the care and caution of the latter should be such as to anticipate and provide against the possible carelessness of the employes of the company. " The care required of each should thus, as it were, be made to overlap each other. This should be required, because human life is at stake, and the degree «f care should be in proportion to the value of human life," aVII.J NEGLIGENCE. 661 Contributory negligence, and injuries at railroad crosaingg. *he plaintiff's own negligence, the fault of a third party, or the re- iBult of sheer accident, the defendant is not responsible.J 9. On the other hand, if the plaintiff was negligent in a particu- lar which did not contribute to the accident, and due care on his -part, in respect to such particular, would not have prevented the Injury complained of, then the defendant is liable -for his negli- ,gence.(l) In such case the plaintiff did not contribute by his ■negligence to the cause of the accident. 10. Of course, a negligent act or omission of the plaintiff, remote from the cause of the injury, and not occurring at the time of the laccident, or, in other words, having no causal connection with the negligent act or omission of the defendant, would not be contribu- tory ; and in such case the defendant would be chargeable with his own negligence.'^ 11. If the plaintiff was on the track, and where he ought not to Slave been, the defendant is liable for injuring him, if the collision tcould have been avoided by the use of the ordinary care herein- i)efore mentioned.' 12. If, by reason of obstructions placed by the company on the crossing, a person using reasonable care is injured thereby, the company is liable. (2) ( j) 11 Ohio St. 333. (1) 22 Ohio St. 227. (k) 8 Ohio St. 195. (1) The rule stated in the text is the same stated in 3 Ohio St. 195, in these •words: "The injured party, although in fault to some extent, at the same time, may, notwithstanding this, he entitled to reparation in damages for an injury mhich could not have been avoided by ordinary care on his part" This is stated oy the judge who delivered the opinion as a qualification of the general Tule, in regard to mutual fault; but Mcllvaine, J., in 22 Ohio St. 21, justly re- marks that it is a mere illustration of the general rule ; for, if the defendant ■was negligent, and by reason thereofl.the accident and injury would have hap- pened at any rate, and notwithstanding some negligent act of the plaintifij then )such negligent act of the plaintiff did npt, in any respect, cause the injury or .contribute to the accident. 6 Ohio St. 105 ; 24 Id. 631. In the federal courts, and in the courts of all other states except Georgia and Illinois, the questipn of contributory negligence is not one of degree, nor does it depend upon wiiich was most to blame; but, of fact, whether the negligent .acts or omissions of both parties contributed to the injury. If this were not £0, the word " contributory " would not belong to the subject — it would be coinpar' ative negligence. 52 111. 830 ; 32 Iowa, 467. (2) The company is, under no obligation, to remove from the highway ob- etructions placed on the crossing by a stranger, if the material obstructing the NEOLIGBNOB, [OHAP^ Firefl, and proximate and remote results of negligence generally. Sec. V. FiKES, and peoximatb and remote results of negli- gence GENERALLY. A farmer has a lawful right to burn the stubble, stumps, and rubbish on his land; and a manufacturer has a right to use fire for his manufactory, and a railroad company has a right to use fir* upon its locomotives. If such lawful fire is accidentally communi- cated to the adjoining premises of others, and their property burnt,. the mere fact of such accident so happening, is not •prima facie evi- dence of negligence. In such cases the plaintiff must prove, or the facts and circumstances proved must show, negligence on the part of the defendant, otherwise the plaintiff can not recover. The mere happening of the accident is not suflScient evidence to be left to a jury.™ The foundation of the action being negligence, it fol- lows that if A. sets fire to his own fallow-ground, as he may law- fully do, which communicates to and fires the woodland of B., his- neighbor, no action lies against A. unless there was some negligence or misconduct in him or his servant," and this is the rule through- out this country, except where it has been modified by statute." When the owner of cord-wood deposits it near a railroad track at a place directed by the agent of the company, and under agree- ment with such agent, by which it is to become the property of the railroad company when measured, or when measured and paid for by the company, if fire is communicated to the wood from an engine, by reason of the failure of the company to use proper and (m) 34 Ohio St. 96 ; 22 Barb. 619; 11 out proof of negligence, to an Met. 460; 18 Maine, 32; 44 adjoining owner for damage* Barb. 424 ; 21 Pick. 378 ; 8 done to his property by reason Johns. 422 ; 37 Barb. 15 ; 54 of an accidental explosion of Maine, 256 ; 3 Iowa, 81. It is such boiler. 51 N". Y. 476. held in New York, that the (n) 8 Johns. 422. owner of a steam-boiler oper- (o) Whart. on Neg., sec. 867, and ated on his premises, in a law- cases there cited, ful manner, is not liable, with- crossing is neither the property, nor under the care and control of the com- pany, although the existence of the obstruction is known to its agents. Nor does such obligation exist, although the person so placing the obstruction be se brakeman Of the company, and the material be waste manure from the stock- cars, if the brakesman placed the manure there for his own use without the- authority of the company, and, at the time, was not acting within the scope o6' his employment and duty as brakeman or servant. 21 Ohio St. 421. XVII.] TfBGLIQENCE. 6^ Pires, and proximate and remote results of negligence generally. %nown machinery to prevent fire from escaping, or by the care- lessness of employes, the company is liable; but negligence, in •either respect, can not be inferred, and the burden rests on the ,party alleging it.p It is a mistake, however, to suppose that negligence can be proved only by positive or direct affirmatory evidence. There may be no direct proof of negligence ; yet, the way in which the injury was ■done, or other circumstances, may be such, that, from these, negli- ^gence is the most probable explanation. In such case, the burden -of proof is changed to the defendant, who must then disprove negligence by showing that he exercised due care. Thus, a rail- road company is bound to use such apparatus to prevent the escape of sparks from their locomotives, as is generally used, approved, and adopted for that purpose. If a spark-catcher could be invented which would prevent all «park8 from escaping, no fire could be communicated from an engine. But no such contrivance has been or can probably be made. The spark -catchers, however, in use do prevent coal, and, in some degree, large sparks from escaping ; and the escape of an unusual quantity of sparks or coal from an engine, would be evir ■dance of negligence, either in not providing such apparatus, or that it was out of order.5 So, if a railroad company collect dry trimmings or rubbish on the side of their track, of a combustible nature, and leave them there in dry weather, and in such a situation as readily to ignite from sparks, it is such negligence as makes it responsible for damage sustained by a fire communicated from such material to a neigh- Ijoring field or building.' Of course, this does not render them liable for the general effects of a drouth, which changes vegeta- tion generally into combustible material. (1) (p) 31 Ind.143. (r) 6 C. P. 14; 11 Q. B. 347; 107 ■ (q) 20 Mich. 244; 30 Wis. 110; 41 Mass. 494; 98 Id. 414. Ind. 228. (1) It is held in Illinois, that Itod-owners contigious to railroads are as much lound in law ta keep their lands free from dry grass and weeds as the railroad is on its right of way ; and that, unless it appears that the negligence of the Company is greater than that of the land-owner, the latter can not recover for injuries hy fire thus occurring. 47 111. 497, 505 ; and see 37 Mo. 288 ; 54 lU. i04; 30 Wis. 110. These questions have not as yet been brought before th» ifiupreme Court of Ohio for its consideration. In 20 Mich. 244, the court say : " Xhe care which railroads must exercise in 664 NEGLIGBNCB. [CHAPU. Fires, and proximate and remote resultB of negligence generally. Kindling a fire on one's premises in the open air in such a way^ . that, under ordinary circumstances, the fire will naturally spread' to another's property, and which a person of ordinary prudence- would have foreseen as the consequences, is negligence ; and the per- son kindling such fire is, ■prima fade, liable for the consequences.* And negligently leaving a fire lawfully made, when danger of its. spreading might be reasonably foreseen, makes the person so neg- ligent liable to damages incurred by others on account of such' negligence.* One is liable for the natural and direct result of the act of neg- ligence, in communicating a fire to the property of another, but is' not liable for remote results. What are proximate, natural, and direct results, and what are remote, is frequently a very diflicult question, and has not been brought under definite rules. For instance, where A. sets fire, by his negligence, to his wood- shed, and the fire from this communicates, through an interven- ing vacant space of forty, eighty, and one hundred and thirty feet,- to the buildings of B., standing on his premises, and which were in no way connected with the wood-shed until destroyed, it was held that this was a result not to be anticipated or foreseen from the firing of the wood-shed, and the act of negligence of A. was not the proximate, but the remote cause of the destruction of the- buildings of JB., and therefore A. is not liable." But if A. negli- (s) 98 Mass. 414 ; 11 Q. B. 347 ; 107 (t) 3 Bing. N. C. 468 ; 54 Maine, 2-56 p Mass. 494; 1 Salk. 13; 44 21 Pick. 378. Barb. 424; 3 Iowa, 81; and (u) 62 Penn St. 353. See 35 N. T.. see Key. Stat., § 6834. 210. the running of trains, so as not to injure property situate near their track, is' not contingent of such conditions as the force of the wind, the dryness of the- weather, or the combustiWe character of property liable to be aflFected. Vehi- cles that can choose their track, may be used differently. But the necessity of Tanning railroad cars with regularity and uniformity, is not a matter of con- venience merely. The business can not be done at all, unless calculations are- made upon the movements of their trains ; and the risks attendant upon a dis- turbance of that regularity are risks to human life, and not mere business de- lays. It would not only be vexatious, but in the highest degree dangerous, to< make the movements of trains vary with winds or drouths. Hence, dangerous- aa it may be to combustible property adjacent to railroads, to run trains when- there are high winds and a drouth, if the company are not in fault in the qual- ity, or character, or use of their equipment, the special risks incident to prox- imity to railroad trains must be borne by those who establish themselves in- such localities." 20 Mich. 244. IVn-J NEGLIQENOE. 665 Proximate and remote results of negligence generally. gently and unnecessarily kindles a fire on his own premises, which, from dry weeds and grass, spread to B.'s land, burning the trees- and soil, it was held that these consequences were the natural and direct result of the negligent act of A., and that he was liable- therefor/ And in regard to responsibility for the natural sequence and' proximate results of a negligent act, the following may afford some- illustration of the rule : If you are guilty of a negligent act, and before the act results in any injury to B., another person. A., negligently or maliciously sa acts as to make your negligence injurious to B., then you can not be sued for the mischief which A., so intervening, directly produced, and he is liable. It will be observed that in such case, the connec- tion between your negligence and the injury to B. is broken by the act and intervention of A., and were you liable in such case, yoa would be made answerable in damages for the negligent or ma- licious act of A. Thus, B. places a log on the sidewalk, which A> throws into the street, and C.'s carriage passing in the night is up- set by the log, and he is injured. In such case, A. and not B. is liable to C. So, you make a fire negligently in your field, but nO' mischief would result were it not for the negligence of A., who, by tampering with it, causes it to spread to B.'s field. Here, B. has no claim on yoii, if A. was a free and rational agent, but A. is liable toB. These cases illustrate a general principle, that to make any neg- ligence a cause of action, there must not intervene an independent disturbing moral agent, who intercepts the usual course of events which would have resulted in the particular injury. But one is liable for all the natural and regular consequences of an act of negligence. Thus, A. negligently caused a leak in a gas-pipe in the cellar of an occupied house, and B., ignorant of the gas being in the cellar, on lighting a match the gas exploded and injured the building. In such ease, A. is liable for the injury ; but if B. had notice or was bound to take notice of the leakage, then B., in light- ing the match in the cellar, was guilty of negligence, and the con- nection between A.'s act of negligence and the resulting injury was broken and disconnected by the intervening negligent- act of B., who, alone, would be liable for the injury. The application of this principle, or any other, to intermediate (v) 11 Q. B. 347 ; 107 Mass. 494; 35 N. Y. 210j 32 Id. 389. 666 NEGLIGENCE. [CHAf. Frozimate and remote results of negligence generally. and extended conflagrations originating from negligence, is ex* tremely diflScult. For instance, the owner of a house, by the care- less use of a match, sets it on fire ; the one adjoining is fired by the first ; a third by the second, and so on, until half a city is con- sumed. It is not to be supposed that the first owner is liable for all these consequences, and no court has so held. The second and third houses were not burned by the direct action of the match, and the variolis agencies which contributed to the general result can not be ascertained. In such case, the match must be deemed the remote, and the various agencies extending the fire, the proxi- mate cause." Besides, the various agencies which intervene between the first negligent act and the final conflagration, such as the combustible nature or exposed sites of the adjacent buildings, the negligence of the occupants or of the fire department in providing against the ca.sualty, or in arresting its progress, would presumptively, no doubt, superadd new, distinct, and proximate causes for the progress of the fire, and thus, as in the illustrations heretofore given, relieve the hand that negligently originated the fire from any responsibility, by reason of these intervening presumptive causes, for the spread of the fire. (w) See 49 N. Y. 421 ; S. C, 3 Lans. 210 ; Whart. on Neg., sec. 149, 453 ; 62 Fenn St. 353 ; 86 N. Y. et seq., and cases there cited. XVIII.] PARENT AND CHILD. 66T Belation of parent and child. CHAPTER LVIII. PAEENT AND CHILD. The father is bound to support his minor children (males until they arrive at twenty-one, and females until they arrive at eighteea years of age,') even though. they have property of their own. When the father has little or no property of his own, and takes the guardianship of his children so situated, he will be allowed by the court a reasonable charge out of their estate for maintaining them.* A widow, however, is not bound to support her childrea if they have property. In either case, the obligation ceases the moment the child arrives to maturity, however wealthy the pai'ent may be. The father, unless appointed guardian by the court, has no au- thority to lease or receive the rents and profits of his child's land;« nor has he any control over the personal property of the child. The father is not^bound by the contract of his child, even for .articles suitable and necessary, unless an actual authority to make the purchase be proved, or the circumstances be suiHcieut to imply an authority. What is necessary for the child is left to the discre- tion of the parent ; and if a child lives with the parent, or is under his control, there must be clear proof of an omission of duty on bis part, to supply necessaries, before a third person can interfere to furnish them and charge the father. It is therefore Incumbent on a tradesman, before he intrusts an infant with what may appear necessaries, to inquire whether he is provided by his friends. For if proper clothes are supplied to an infant by his father, others fur- nished in addition can not be considered necessaries. The educa- tion of an infant, when placed at a school by his parents, is not (a) Key. Stat,, ? 3136. (o) 7 Cow. 36 ; 2 Wend. 153 ; Co. ., [christian and surname,] late partners, under the name and firm of A. B. & Co., and E. X., [administrator or executor,] of the estate of said 0. D., deceased." Any company formed to carry on any trade or business, or for the purpose hIK.] PAETNERSHIP. 681 Execution against partners. mistake in making too many or too few parties plaintiffs or defend- ants, has alre£(,dy been stated." , The partnership may be proved by the verbal testimony of clerks or other persons, who know that the partners have carried on.busi- ness together. It is unnecessary to produce the articles of copart- nership. Evidence of the common report of a neighborhood, in t he absence of proof of the acts or admissions of 4;he parties sought to be charged as partners, is not admissible to prove the partner- ship.d^ It is a well-settled rule that partners can not sue each other at law, for any cause of action or debt growing out of or relating to the partnership. But where there has been a settlement of the partnership accounts, and a balance struck, and account thereof rendered,'^ whereby it S,ppears that a certain sum is due to one of the partners, or there has been a direct and express promise to pay such balance, a suit may be instituted, and a recovery had upon the promise. Sec. VI. Execution against paetnees. We have already seen, in the note (1) below, how the execution is levied when the action is against the firm in its firm name only; and have already pointed out the mode of proceeding when the action is against all the partners, and some of them are not served with process.' In general, upon execution against the members of a firm as such, (c) Ante, pp. 40, 41 ; and see post, (e) 2 T. E. 479, 483, note a ; 19 Ohio, 688. 44; 25 Ohio St. 567. ^d) 19 Ohio, 343 ; see ante, p. 169. (f ) Ante, p. 269. of holding any species of property in this state, and not incorporated as such, may sue or be sued in any of the courts of this state, by their company name which they have assumed, or are known by ; and the names of the persons com- posing the company need not be stated in the process or proceedings, or proved at the trial. The summons, in such case, must be served by copy left at their usual place of doing business; and the execution can only operate on partner- ship property ; but other remedies may be had on the judgment, by petition and decree in the common pleas, against the individual partners. When a company thus sue in their firm name only, they must give security ibr ccsts. This statute is applicable only to a firm formed for and doing business or holtt- ing property in this state. 13 Ohio St. 210. Partnership liabilities may be sued under it, or the suit may be against individual partners as such. 18 Ohio St. 138; Eev. Stat., ?§ 5011, 5042, 5370, 5340,, \/ 682 PARTNERSHIP. [OHAP. Execution against partners. the. goods and chattels of a partnership maybe seized and sold; aijd the separate personal property of any or either of the indi- vidual partners may also be levied upon and sold.s The mode of proceeding to subject the property of a partnership to levy and sale, etc., on a judgment against a separate partner for his private debt, has been a subject of embarrassment in courts of law. Joint property owned by partners, will, on the application of a partner for that purpose, to a court, be subjected to the pay ment of partnership debts, in preference to the private debts of the partners.(l) A partner's interest in partnership goods is his share of the surplus, after all demands against the firm, including those of the partners individually, due from the firm, are paid. An ex- ecution in the hands of a constable against one of two partners, for his individual debt, may be levied uport partnership goods. Upon such levy being made, it is the right of the creditor and of the other copartners, should either desire it, to comjjel by suit in equity in the court of common pleas, an adjustment of the part- nership business and a stay of proceedings under the execution till the beneficial interest of the debtor partner in the goods seized has been ascertained. But if the creditor does not so elect to sue in equity, and.no such steps are taken by the other partners, the officer executing the writ must sell the apparent interest of the debtor in the chattels levied on, and upon such sale redeliver the same to the other partners, and such other partners and the pur- chaser will then be'owners in common, subject to the lien in favor of the other partners and the joint creditors, upon the intei-est of the debtor partner in the hands of the purchaser, for any balance due upon final adjustment of the partnership account.''^'-' As the purchaser on such execution obtains a very uncertain in- (g) 1 Bos. & Pul. 547. As to attach, (h) 12 Ohio St. 647; I'S Ohio, 181 ; 16 ment, see p. 425, n. Y Id. 144. (1) 11 Ohio, 413. Although partners have a lien on the joint property to liquidate the joint dehts, a creditor of the firm has no such lien on its effects, and can assert a lien in equity through the partners only. A creditor, there- 'bro, of a partner, individually, will be postponed to a creditor of the firm. Story on Part., see. 358, and passim ; 10 Ohio, 398. Tlie preference of partner- ship creditors over individual creditors of a partner, can not be defeated by a mere executory agreement between the partners for the sale or transfer of the firm assets to one of them, unaccompanied by any actual delivery or transfer. 23 Ohio St. 468. When there are no firm assets, individual and firm creditors share in the individual assets of the partners. 25 Id. 609 ; 7 Id. 179. LIX,] PAETNEESHIP. 6S3 For ■what purposes limited partnerships formed, etp. — How formed, etc. terest depending on the final adjustment of the partDcrship, it is best for all parties that after levy a suit in equity should be brought as above mentioned. Sec. VII. For what purposes limited paetnekships formed, AND EXTENT OP LIABILITY OP SPECIAL PARTNER. Limited partnerships, for the transaction of mercantile, mechan- ical, manufacturing, or mining business, may be formed by two or more persons, upon the terms, and subject to the conditions and liabilities hereinafter mentioned, except for the purpose of banking or insurance." Such partnerships may consist of one or more general partners and one or more special partners. The general partners are those who, as such, are jointly and severally re spon sible for the partner- ship debts, as g enera l partners are in ordinary partnerships. Special partners are those who contribute, in actual cash payments, a specific sum as capital to the common stock, and who will not be liable for the partnership debts except in the' particular cases here- inafter mentioned. The capital, however, invested byspecial part- ners, will be liable for all the debts of the firm.'' , Sec. VIII. How limited partnership formed — the certificate, AND ITS RECORD AND PUBLICATION. The persons forming such copartnership must make and severally sign a certificate, which must contain, first, the name or firm under which such partnership is to be conducted ; second, the names and respective places of residence of all the general and special part- ners, distinguishing who are general, and who are special partners; third, the amount of capital which each special partner has con- tributed to the common stock; fourth, the general nature of the business to be transacted ; fifth, the time when the partnership is to commence, and when it is to terminate." The certificate must be acknowledged before an officer author- ized to take the acknowledgment of deeds ; and in case either of said partners reside out of this state, such certificate may be ac- knowledged by such partner before a justice of the peace or judge of any of the courts of the state or territory where such partner (a) Eev. Stat., ? 3141. (c) Kev. Stat., § 3143. (b) Kev. Stat., § 3142. 684 PARTNERSHIP. [CHAP. The certificate, etc. may reside, and such acknowledgment mast be certified by the of- ficer taking the same." The form of the certificate may be as follows : Limited 'partnership. This is to certify, that the midei'signed have agreed to enter into a limited partnership. The name and firm under which said part- nership is to be conducted is " Walter Smith." The names and places of residence of the general and special partners of said firm are as follows, to wit : Walter Smith, who is general partner, re- sides in the city of Cincinnati, Ohio; John Ellavi, who is a special partner, resides in the city of Dayton, Ohio, and Isaac Watters. also a special partner, resides in the city of Hew York, in the State of Mew York. The amount of capital stock which said special partners have respectively contributed to the common stock, is aa follows : John Ellam, five thousand dollars, and Isaac Watters, ten thousand dollars. The general nature of tlbe business to be trans- acted by said firm is that of wholesale merchants in the dry -goods busi- ness. The said partnership is to commence on the first day of May, A. D. 1875, and to terminate on the first day of May, 18, The principal place of business of said partnership will be at said city of Cincinnati. Walter Smith, John Ellam, Cincinnati, April 25, 18 . Isaac Watters. Q.'he State of Ohio, Mamilton County, ss. Be it remembered, that on the day of , a. d. 18 — , be- fore me, the undersigned, a justice of the peace in and for said county, personally appeared the above-named [name the parties,^ and severally acknowledged the above certificate of special part- nership to be their voluntary act. In witness whereof, I have hereunto set my official hand, the day and year above mentioned. G-. H., j. p. The certificate so acknowledged must be recorded by the recorder of deeds in the county in which the principal place of business of (he partnership is situated, in a book to be kept for that pui-poso, open to public inspection ; and if the partnership have places ot business situated in different counties, the certificate and the ao- (o) Eev. Stat., § 8144. LTX.] PARTNERSHIP. 685 Name of firm, and general powers, duties, and liabilities of the partr. ers. knowledgment thereof must be recorded in like manner in the . oflBce of recorder of deeds in every such county; and if any false statement is made in any such certificate, all the persons interested in such partnership will be liable, as general partners, for all the engagements thereof'' The partners must, for six successive weeks immediately after such certificate is recorded, publish a copy thereof in a newspaper printed in the county where their principal place of business is situated ; and if no paper be there printed, then in a newspaper printed in an adjoining county, and of general circulation in said county ; and a like publication must be made in every county where the partnership may have a place of business ; and in case such publication be not so made, the partnership will be deemed general.'^ Such partnership can not be deemed to have been formed, until such certificate shall have been made, acknowledged, and recorded.^ Seo. IX. The name op the pirm, and general powers, duties, AND LIABILITIES OP GENERAL AND SPECIAL PARTNERS OP A LIMITED PARTNERSHIP. The business of a limited partnership must be conducted under a firm name, in which the names of all general p artne rs must be ingerted ; except, where there are more than two general partners, the name may consist of the name of either one or more of them, with the addition of the words " & Co. ; " and if any special part- ner permits his name to be used, he will be deemed a general part- ner. The partnership must also put up, upon some conspicuous place on the outside and in front of the building in which it has its chief place of business, some sign, on which must be placed, in legible English characters, all the names, in full, of all the general partners, in default of which no action against the partnership will abate or be dismissed, by reason of the plaintiff in such action failing to prove the allegations in his pleadings as to the names and number of the members of the firm.' No part of the sum which any special partner contributed to the capital stock can be withdrawn by him, or paid, or transferred to him, in the shape of dividends, profits, or otherwise, at any time during the continuance of the partnership ; but such partner may (d) Eev. Stat., ?? 3145, SliP, 3147. (e) Bev. Stat., g 3150. 686 PARTNERSHIP. [OHAP. Name of firm, and general powers, duties, and liabilities of the partners. annually receive lawful interest on the sum so contributed by him, if the payment of feiich interest will not reduce the original amount of Bueh capital ; and if, after the payment of such interest, any further profits remain to be divided, he may also receive his por- tion of such profits.' If it shall appear that, by the payment of interest and j)rofiis to any special partner, the original capital has been reduced, the partner receiving the same will be bound to restore the amount necessary to make good his share of capital, with interest.' A special partner may, from time to time, examine into the con- dition and progress of the partnership affairs and business, and m.ay advise as to their management; he maybe constituted and appointed by the general partners the agent of the partnership film, for the purpose of negotiating sales, making purchases, and tf.ansacting other business within the scope of partnership business, upon disclosing his agency to the person with whom he is doing business ; but, except he is authorized as above mentioned, he must not transact the partnership business, nor act as agent, attorney, or otherwise for the firm ; and if he interfere, except as agent duly authorized, and in the manner above mentioned, he will be deemed a general partner, and will be chargeable as such.s The general partners are liable to account to each other, and to the special partners, for their management of the concern, as other partners are required to do in law or equity.'' Every partner guilty of fraud in the affairs of the partnership will be liable civilly to the party injured, to the extent of his dam- age, and also punishable criminally by fine not exceeding five hundred dollars, or imprisonment in the county jail not exceeding six months, or both, at the discretion of the court." Every sale, assignment, or transfer of any of the property or effects of such partnership, made by such partnership when insolv- ent, or in contemplation of insolvency, or after or in contemplation of the insolvency of any partner, with the intent of giving a pref- eronoo to any creditor of such .partnership, or insolvent partner, over other creditors of such partnership ; and every judgment confessed, lien created, or security given by such partnership, under the like circumstances, and with the like intent, will be void, as against the creditors of such partnership ; and such acts, done (f ) Eev. Stat., §? S151, 3152. (h) Eev. Stat., ? 3164. (g) Eev. Stat., g 3153. (i) Eev. Stat., § 7077. LIX.] PARTNERSHIP. 687 Renewal and dissolution. by a special partner, or concurred in, or assented to by him, will make him liable as a general partner .Jj_/ ' In case of the insolvency of the partnership, no special partner can, under any circumstances, be allowed to claim as a creditor until the claims of all the other creditors of the partnership are satisfied.'' When such partnership is formed for manufacturing or mining purposes, and the firm purchase or possess lands necessary or con- venient for carrying on their business, such partnership may rent, cultivate, or improve such lands, and the same will not be deemed a departure from the regular business of such partnership.' X. EeNEWAL OB. CONTINUATION OF LIMITED PARTNERSHIP. TJpon every renewal or continuation of a limited partnership beyond the time originally agreed upon for its duration, a certifi- cate thereof must be made, acknowledged, recorded, and published, in like manner as is above provided for the original formation of limited partnerships ; and every such partnership which' shall not be so renewed will be deemed a general partnership.™ If, therefore, the partners desire to turn the limited partnership into a general one, on the expiration of the limited partnership, they will eifect that object as to creditors and third persons, by omitting to make out, acknowledge, and have recorded and pub- lished, a certificate of such renewal ; but unless this was the design, and object of such omission, they will continue as between them- selves only limited partners. Sec. XI. Dissolution op a limited partnership before the TIME SPECIFIED IN THE CERTIFICATE. The partnership, as between the members of the firm, is liable to dissolution in the same manner, and for such frauds and mis- management as furnish sufficient grounds for the dissolution of other partnerships formed for a certain and definite period.™ If dissolved before the time specified in the recorded certificate, or previous to the time specified in the certificate of the renewal of the partnership, notice of such dissolution should be recorded iu the ofiice in which the original certificate was recorded, and pub- lished once in each week for four weeks, in a newspaper printed in t^j) Kev. Stat., ?? 3166, 3157. (1) Eev. Stat., ? .3160. (k) Kev. Stat., § 3158. (m) Kev. Stat., ? 3148. 688 PARTNERSHIP. [CHAP. Actions by and against a limited partnership. each of the counties whore the partnership may have places of busi- ness ; and if a newspaper is not published in any one of the coun- ties, then the notice should be published in a newspaper in any adjoining county, and of general circulation in the county where such partnership business may be situated." Every alteration which is made in the names of the partners, in the nature of the business, or in any other matter specified in the original certificate, will be deemed a dissolution of the partnership ; and every such partnership which shall be in any manner carried on after such alteration, will be deemed a general partnership, un- less renewed as a special partnership by certificate duly acknowl- edged and recorded as hereinbefore stated." A firm, however, of general partners, that have transacted busi- ness under one firm name for more than five years, may organize a special partnership to continue the same business, containing any of the same or additional partner or partners, and adopt the firm name before used by such general partnership ; but they must put up a sign, etc., as hereinbefore stated, containing the names in full of all the general partners.' Sec. XII. Actions by and against a limited partnership. All suits respecting the business of such partnership must be prosecuted by and against the general partners, except in those cases in which, by the provisions of the law above stated, special partners shall be deemed general partners, and special partnerships deemed general partnerships; in which cases, all the partners deemed general partners may join, or be joinedin such suits.? Where the name of one partner and the words "& Co.," are adopted as the name of a firm of limited partnership, suits against them will be in the name of those who are designated as general partners by a sign in front of their building; and the persons whose names are thus designated will be concluded and chargeable as general partners, if these names have been so used with their kuowlodge, although not in fact partners.^ (n) Rev. Stat., g 3159. (p) Eev. Stat., ? 3161. (o) Kev. Stat., § 3149. (q) Eev. Stat., § 3150. LX.] PAYMENT. 689 Difference between a payment and a set-off— Application of payments, etc. CHAPTER LX. PAYMENT. Sec. I. The diffeeence between a payment and a set-off. II. Application of payments, and to whom to be made. III. In what cases money, etc., paid by mistake or compul- sion MAY BE RECOVERED BACK. IV. Payment by promissory note or bill of exchange. Sec. I. The difference between a payment and a set-off. If A. owes you a debt, and you receive money or property upon it, in discharge of a part, or the whole of the debt, such acceptance of money or property is called a payment. But if A. owes you a debt, and you contract a debt with him for money or property, there are then mutual debts existing between you ; and if one party sues the other, the defendant may set off the debt due him against the debt sued upon. A set-off, then, exists where there are cross- demands, or distinct debts, on both sides ; a payment, where money or property is delivered for the purpose of being directly applied to the liquidation of the debt or claim which it was intended to cancel, in whole or in part. Where the nature of the dealings between parties necessarily constitutes an account, consisting of charges and payments, or con- nected charges and credits, the balance only is the debt,* aijd the credits are deemed payments. Sec II. Application of payments, and to whom to be made. \Yhera a creditor has two or more demands against his debtor, Uu) debtor may, in general, at the time he makes a payment, direct the application of the money to the discharge of whichsoever debt 1)0 pleases, and the money must be appropriated accordingly."' £> But where money is paid to a creditor, generally, without any (a) 4 Burr. 2221. See post, title SET-opr. f(h) 30 Ohio St. 502. 690 PAYMENT. [chap. Application of payments, and to whom to be made. specific appropriation by the party paying, and the creditor hao several demands against the party paying, he may apply the money paid to which of these demands he pleases.^ And, in such ease, tho creditor need not apply it to any particular demand at the moment of payment, but has a right to make the application at a subse- quent period; but if, at the time he receives it, he credits it to a pai-ticular claim, he can not, in general, afterward change its appli- cation." It seems the creditor may apply a payment to the dis- charge of a purely equitable demand, and sue his debtor for the prior legal debt.'* But where a creditor has two demands against his debtoi, and the debtor pays a sum of money without directing to which it shall be applied, if the amount paid exceeds one of the demands, and is exactly equal to what remains due on the other, it will be consid- ered as having been paid in discharge of that other.^ So, a posi- tive refusal to pay one debt, and an acknowledgment of another, with the delivery of the sum due upon it, must be considered as payment of the last-mentioned debt.' Where payments are made upon one entire account, they are to be considered as payments in discharge of the earlier items.s(l) Where there are two demands, one legal and the other illegal, the law will apply a payment to the discharge of the legal demand."" In no case can a creditor, who receives payment generally, retain (b) 4 Cranch, 317 ; 14 East, 243, note 1 Merv. 572 ; 2 Johns. Ch. 99 9 Wheat. 720 ; 9 Cow. 420, 409 (d) 1 Eng. O. L. 495 1 but see 8 Id. 252. (e) 3 Caine, 14. 10 Pick. 129; 3 Ohio, 275; 8 (f) 7 Wheat. 13. Id. 533 j^lljiiiaSt. 511. (g) 2 Barn. & Aid. 46 ; 11 Eng. C. L. (o) 3 Ohio, 275 ; see 9 Eng. 0. L. 25. 36 ; 2 Barn. & Aid. 39. (h) 10 Eng. C. L. 44. y/(l) If a party receive in payment counterfeit bank-bills, it is not a payment, and he may resort to his original contract, in like manner, as if no payment had been made. 2 Johns. 455. It is necessary, in such case, for the plaintiff to satisfy the justice that the identical bill was received from the defendant and that it is counterfeit. Where genuine bank-bills are received in •payment, and at the time of such payment the bank which issued the bills has, in fact, stopped payment, although the failure i^ not known at the time and place of payment by either party, the loss falls upon the party paying, and not upon the party receiving the bills, if there be no unreasonable delay in returning the bills. .^O£hio St. 188; 11 Wend. 1 ; 13 Id. 107; 9 N". Hamp. 107; 22 Maine, 68. Of course, the risk of the failure of a bank, after thef bill is passed, must fall on the party receiving it. LX.] PAYMENT. 691 When money, etc., paid ty Inistake oi- compulsion may be recovered back. and appropriate it, without the consent of the debtor, to the extin' guishment of a demand created after the payment, leaving a prioi' demand unpaid.^ Payment to an agent employed by the plaintiff to obtain the debt, is as effectual as payment to the plaintiff himself, or to the attorney on the record. But payment to the attorney's clerk, or to the at- torney's agent, is not binding on the principal.J Payment by a debtor to a third person, in pursuance of an order given by the creditor, is equivalent to payment to the creditor him- self. Payment to an executor who has obtained a probate of a forged will, is an answer to an action brought against the debtor by the rightful administrator, on revocation of the probate."^ An authority given to an agent to receive money, does not allow the debtor to set off a debt which the agent owes him ; for if that were permitted, it would enable the agent to collude with the debtor to defraud the principal. An authority given to a commercial traveler, to receive payment, in money, for goods sold in the coun- try for his employers, does not empower him to receive payment in other goods.' If money be sent in a letter bj post, and be lost, the debtor is discharged, if the creditor directed it to be so transmitted, or if it was the usual course of business between the parties."" 0. III. In what oases money, etc., paid by mistake or com- pulsion, MAY BE RECOVERED BACK. The rights of parties when money is paid upon a forged iiote, bill, or check, will be considered in the next chapter. Where money or property is paid, under a mistake as to facts, there being no negligence on the part of the person who pays, (in not availing himself of the means within his power, of knowing those facts,) it may be recovered back.",^ The law raises an implied promise to refund the money, or the value of the property. But this implied promise will only arise when the money or property ought, in equity and good conscience, to be returned, and when the contract and payment is founded on the belief that a fact did not then exist, which really did exist ; or when the contract is founded (1) 9 Cowen, 420. (1) 21 Bng. C. L. 163 j 19 Id. 499. (j) 1 Esp. 115; Doug. 623; 22 Bng. (m) 21 Eng. C. L. 402. C. L. 291. (n) 9 Eng. C. L. 294; 3 "Wend. 412; (t) 7 Eng. C. L. 249; 10 Id. 247. 14 Ohio, 568 ; 28 Ohio St. 300. - 44 ' " 692 PAYMENT. [CHAP "When money, etc., paid by mistake or compulsion may be recovered back. upon the belief that a fact then existed, which really did not exist. If, therefore, a party pay money which the law would not have compelled him to pay, but which in justice he ought to pay, he has no remedy for the recovery thereof" So, where parties are uncer- tain about a fact, and make the contract, or pay money, with a view to that uncertainty, (as where parties have a final settlement by making a definite but rough estimate of the balance between them,) the contract is binding, and a payment under it can not be recovered back, even though it be shown that there was no uncer- tainty in the fact which was supposed to be uncertain.? In such case there is no unfairness ; both parties acting under the belief that it is better so to contract, than to ascertain with certainty, by time or otherwise, whether the fact certainly existed, or not. So, if a party, with full knowledge of the facts, voluntarily pays a de- mand unjustly made on him, and attempted or threatened to be enforced by a suit, he can not consider the money as paid by com- pulsion, and recover the same back again, although he protested at the time against his responsibility."! But if the payment is made to procure the release of the person or property of the party from detention, or when the person de- manding the money, is apparently authorized to seize upon either, and the payment is made to prevent it, in such case the payment is deemed involuntary, and if the demand was illegal, the money paid may be recovered back.i So, also, money will be deemed to be paid involuntarily, and may be recovered back, where the position or interests of the party paying it were such as to require from another the performance of a duty enjoined by law, and the party paying it was illegally eom- j)elled to pay the money to induce the other to perform such duty for him. Thus, if A. is engaged in a business requiring a license, and the officer authorized to grant such license will not do so with- out the payment of an illegal amount, A. may recover back the illegal exaction.' y So, it being the duty of a railroad company to carry goods and passengers at certain rates limited by its charter, if the company (o) 1 T. K. 286. (7^11 Ohio St. 534 ; 2 Barn. & Cress, (p) 1 Wend. 355; 18 Ohio St. 536. 729, 734, 737; 1 Id. 274 ; 18 (q) 1 Chitty's Con. 100 (3 Am. ed.) ; Eng. 0. L. 87; 4 Met. 181. 1 Ohio St. 278; 11 Id. 534; 6 Id. 471. £ (e) 2 Bos. «fc Pul. 173. 591. (f ) 19 Ohio St. 586. (i) 4 Petersd. Ab. 590. (g) 3 M. & S. 851 ; 11 Eng, 0. L, 286. LXl] PROMISSORY NOTES — BILLS — BONDS. 705 General requisites of commercial paper. cure the signature of other persons to a blank piece of paper, which is afterward filled up with a note or bill. The note or bill, so filled up, is good and binding on the parties who have signed the blank.J The authority conferred by such blank signatures is said to bo that of a general letter of credit. It is no defense against it to prove that the person to whom the paper was intrusted was only authorized to use it for a particular purpose, and had fraudulently converted it to a different purpose ; or that he was only authorized to fill the blank upon a certain condition, which had not happened, provided the paper is taken in good faith for value by the holder, without notice, actual or constructive, that the authority given has been exceeded.* l--- And where A. asked B. to sign and' seal a blank, who did so with an understanding that it should only be filled up with a note or bond for two hundred dollars, and A. afterward filled it up with a bond for seven hundred dollars, and then negotiated it to C, who knew nothing of this fraud by A., it was held that B. was liable to C. for the whole amount of seven hundred dollars.' ^-^But if C, when he received the instrument, had known of the understanding between A. and B., the latter would not have been liable on the bond.°'(l) (^ So, where a note is signed in blank, with marginal figures, indi- cating the amount for which it is to be filled up, and the party to whom it is intrusted for filling up and negotiation alters the fig- ( j) 5 Cranch, 142 ; 4 Mass. 45. u(l) 5 Ohio, 222. f^c) 16 Ohio St. 296; 4 Id. 529; 3 Id.i,(m) 6 Ohio, 246. 307 ; 4 Mass. 45. j-,(l) It has been decided in New York, that if a blank note, signed or indorsed for the purpose of being discounted at bank, is filled up according to the agree- ment of the parties, and, after the bank has refused to discount it, the person for whose accommodation the note is signed negotiates it to another person who knows all these circumstances, this does not amount to a fraud, and such person can recover against the parties to the note. 9 "Wend. 172; 5 Id. 66; 17 Johns. 176; 4 Cowen, 567; but see 5 "Wend. 666. But if tl»e note was to be returned to the parties who signed or indorsed it, in case the bank refused to discount it, or there was any other want of gopd faith, and such third person knew this when he received the note, then he could not recover, except against the per- son to whom he actually advanced the money. 10 Johns. 198; 6 Ohio, 249. See also ante, p. 574. ^06 PROMISSORY NOTES — BILLS — BONDS. [CHAP. How commercial paper transferred. ures, and fills up and negotiates the note for a larger amount, this is no forgery of the note, and the simple fact of alteration does not of itself and necessarily vitiate the note, although the party So signing in blank was surety, and known to the payee to have signed it as such. But if the plaintiff received the note with knowledge, or bad reason to suspect the alteration, or under cir- cumstances which should have put him on inquiry, he can not recover.'' g*» Where A., as the security for the maker of a note, wrote his name on the back of the note, it was held that this authorized the maker to fill up the indorsement according to the understanding of the parties — that is, as surety for the maker; and if the holder of the note afterward, by honest mistake, fill up the indorsement with stipulations different fVom those intended by the blank in- dorsement, A. will not be thereby discharged, but the unauthorized portion of the writing may at any time be canceled, or it will be disregarded, and the actual contract enforced." Sec. IV. How these instruments are transferred. This is by delivery and indorsement,? if payable to order or assigns ; and either by delivery merely ,« or by delivery and indorse- ment, if payable to bearer. A promissory note, however, if undfer seal, and a bond, although payable to bearer, must be transferred by indorsement in order to render them available as commercial paper.' If the instrument is payable to A. or order, or to A. or his as- signs, or to the order of A., and A. indorses it in blank, it is after- ward transferable by mere delivery. When so payable, in order to be transferable by delivery merely, it must, in the first instance, be transferred by the indorsement of A., unless A. is a fictitious person, in which case no indorsement is necessary for its transfer; and the instrument is inoperative for, but valid against, all ac- quainted with the fact that A. is a fictitious person ; and an inno- cent holder may treat it as payable to the bearer.' As a note or bill payable to A. or order, or A. or assigns, neces- sarily requires an indorsement of the order of A. to make it pay- able to a third person, it follows that if a note or bill so payable to u(n) 22 Ohio St. 308. (q) 2 Ohio, 228. (o) 15 Ohio St. 515 ; 9 Cush. 106 ; 20 (r) 14 Ohio, 542 ; 19 Ohio St. 536. Vt. 355 ; see post, p. 741. (s) Chitty, Jr. B. 7. (p) 2 Ohio, 60. JiXlJ PKOMISSORT NOTES — BILLS — BONDS. 707 "Who may transfer these instruhients. ' A. gets into circulation, without A.'s indorsement, the holder has no proper commercial evidence that he is the owner. The holder in such case may h,ave bought the note or bill of A., and if so, owns it, but for the want of the indorsement of A., the holder, and anj"- person to whom he indorses it, even before due, for value, takes it subject to all the defenses which the original parties had against A., and as to such defenses they stand in A.'s shoes.' /^ A note in this form, "Due the bearer fifty dollars, which I promise to pay A. or order," is a note payable to A. or order, and must be transferred, in the first instance, by his indorsement." A note or bond, after it is given, and a bill of exchange, after it is accepted, can not be transferred in any way for only a part of the sum due, for a personal contract can not be thus apportioned or divided ; and such a transfer would pass no interest to the holder claiming under it, as against the acceptor or maker.'' Where a part of a note has been paid, it may be indorsed over for the residue ; and if a bill of exchange be indorsed, before acceptance, for part of the money then due on it, the drawee may, by accepting, render himself liable to separate actions for the two parts.' A bill may be negotiated before, as well as after it is accepted. A note, bill, or bond may be transferred after it is due ; but the rights of the holder, as will be seen hereafter, are quite different from those of a holder to whom the instrument is indorsed before it is due. Sec. V. Who mat transfer these instruments. (1) The payee, or his agent authorized sO to do, must make the first indorsement, br other transfer.'' Where an indorsement is necessary to make a transfer of a bill (»r note, as in the case of a full or special indorsement, or the in- strument is under seal, no indorsement will convey a legal right to ihe instrufcent, (except as against the person making it,=') unless it be made by a person authorized to transfer it. As where a bill payable to Senry Davis or order, was sent by post, and got into the hands of a wrong jHenr!/ Davis, -who indorsed it to the plaintiff; held, that the holder could not recover the amount from the ac- t-(t) 10 Ohio St. 283. (w) 3 Kent's Com. 88. (u) 1 Johns. 143, (x) 1 B. & 4. 218; Stra. 516. (v) Chitty on Bills, 139." (y) See post,'p. 710. (1) As to a transfer by a thief, and the effect thereof, see sec. 18. 45 708 PROMISSORY NOTES — BILLS— BONDS. [CHAP. Of the indorsement. ceptor, though there was no particular description on the bill of the person entitled to transfer it ; for, as the indorsement was not made by the person to whom the bill was really payable, it was a forgery, iind could confer no title.'' Where a bill is indorsed to one man, and deposited with him aa trustee, for the use of another, the right of transfer is in the former .only. It is established by a variety of cases, that if a bill, note, or bond ■be deposited with or indorsed to a party for a particular or special purpose, a person taking the bill with a knowledge of the circum- stances, can not acquire a right therein which would contravene ;the purpose for which it was so deposited or indorsed. If the payee be dead, the right to indorse belongs to his executor or administrator ;'■ but if they indorse these instruments, they will become liable personally; and the words "as executors," or "as ..administrators," annexed to their names, which are necessary to show their connection with the instrument, will not prevent their liability to pay out of their own property, if they ha\re not sufla- 'Cient for that purpose belonging to the estate. If the payee has taken the benefit of the insolvent law, then the commissioner of insolvents, to whom he has assigned his property, may transfer the instrument; and he also will be personally liable. If several persons are holders of the instrument, and they are partners, either of them may indorse in the name of the partner- -ship ; but if they are not partners, or the partnership has been dis- solved, then they must all join in the transfer or indorsement. If the instrument is payable to A. for the use of B., A. is the .proper indorser, and not B. If the instrument is payable to a single woman, who afterward marries, an indorsement afterward made by her will be sufficient under the statute.' / It is proper here to add, that an indorsement may always be so made as to limit the liability of the indorser. Sec. VI. Op the indorsement. 1. Its form. — No particular form of words is necessary in an in- dorsement, either to pass a property in the bond, bill, or note, or to •enable the holder to collect it as the agent of the indorser. (y) 4 T. E. 28. .(a) Eev. Stat., § 3109. (z) 3 Wil. 1, 5. ^ «,XI.] FEOMISSORT NOTES — BILLS — BONDS. 709 Indorsement in blank. If an agent indorse, without authority, a bill payable to order, ifcueh indorsement conveys no right of action, except against the fiarty indorsing ; but the unauthorized delivery of a bill or note, payable to bearer, gives a bona fide holder a claim on the other parties.'' In general, a man who puts his name to a bill of exchange, ■thereby makes himself personally liable, unless it appears upon the •lace of the bill that he subscribes it for another, or by procuration of lanother, which are words of exclusion. The plaintiff employed the defendant to procure him bills on Portugal ; the defendant did so, and indorsed the bills without any ►qualification to the plaintiff at Paris : held, that he was liable to ■the plaintiff on the indorsement, and that he could not give any ■evidence to show that he acted as agent to the plaintiff in so doing." But if a man employed to get a bill discounted, be unable to effect it without indorsing it, though he bind himself to the indorsee, he will be entitled to be indemnified by his employer, though his em- iployer's name be not on the bill.'' In the commercial world, it is usual for the agent to indorse for /his principal in the form following :° "A. B., [the principal,'] " per procuration of J. A." [the agent] Or thus : " A. B., [the principal,] " By J. A.," [the agent] 2. Of an indorsement in blank, and its legal effect. — An indorsement in blank is made by the party merely writing his name on the back or face of the instrument, which the indorsee or holder may at any liime, even on the trial, fill up by writing over it, "Pay the con- 'tents;" or, "Pay the contents to" [naming the indorsee,] " or order," " bearer," or " assigns," or other w6rds of like import. A blank indorsement makes the bill, bond, or note transferable ^y mere delivery, whether it was made payable to bearer, order, or assigns;" and where a bill was indorsed in blank, and two (b) Bayley, 129, 130; Burr. 452, (d) 2 Bayley, 72. 1516. (e) 2 Dall. 896. Xc) 2 Eng. 0. L. 58; 19 Id. 802; gee ante, pp. 848-845. 710 PROMISSOET NOTES — BILLS — BONDS. [OHAP- Indorsement in full, and its effect. plaintiffs SBed upon it as indorsees jointly, it was held that they were not obliged to prove either that they received the hills so in- dorsed as partners, or that it was indorsed to them jointly.' The holder of a bond, bill, or note, indorsed in blank, may fiir up the indorsement with any name he pleases; and the person. whose name is inserted, will be deemed rightfully entitled to sue as an indorsee.^ But if it appear from proof, that the plaintiff procured the note by fraud, and had no property or right to collect it, he can not maintain a suit upon it. The cancellation of an indorsement by mistake, will not dis- charge the indorser ; nor the striking out of the acceptance by mistake. No Other use can, in general, be made of a blank indorsement^ than simply pointing out the person to whom the note, bond, or bill is to be paid.'' Where a negotiable note is indorsed in blank, for the accomnio- dation of the maker, the holder can not fill up the indorsement so as to make the amount of the note payable in part to one persoi* and in part to another, without the consent of the parties to the note J for the blank indorsement does not imply an. authority to» split up the note.^Y 3. Of an indorsement in full, and its effect. — ^An indorsement in- full, is where the indorser fills up his indorsement ; thus — " Pay the contents to G. H., or order ;" or to that effect. A negotiable instrument indorsed with directions to pay the con- tents to A., omitting the words " or order," " bearer," or "assigns,"" is further negotiable by the holder ; for a bond, bill, or note, nego- tiable jn its Qrigio, can be restrained only by words of express restriction by the payee. Such indorsement in full, transfers the- interest of the payee to the person named in the indorsement ; and nothing but canceling the indorsement, or the. indorsee's transfer- ing and indorsing it again, will divest him of the legal titlej The- holder, however, may cancel or strike out the indorsement to him,, though a full indorsement ; and may also strike out all prior in- dorsements in blank, except the first.'' A bill, bond, or note, in- (f) 2Bng. C. L. 468. (h) 3 Kent's Com. 89. (g) 8 Wieat. 173, 183; 6 Co-w. 455; V(i) 16 Ohio St. 539. 7 Id. 174; 9 Mass. 423; 25 (j) 15 Johns. 249, per Spbitckk, J. Eng. C. L. 286 ; • (k) Peake's N. P. 225 ; 1 Paine, 156 ; t Dall. 193. SLXI.] PBOMISSOET NOTES — BILLS — BONDS. 711 Bestrictive indoTsement. •dorsed after it is due, is equivalent t© drawing a new bill by the andorser, on the maker or drawee of the instrument, in favor of the indorsee, payable at sight ;' and the indorsee takes the instrument 'Itself, subject to every defense that existed in favor of the previous parties before it was indorsed. (1) The effect of a full indorsement is to restrain the negotiability of the bill or note ; as, if A. indorse a bill thus : "Pay B. or order," and sign his name, the instrument thereby is payable to B. only, or his order, and can not be transferred without the indorsement of B: But B. may afterward indorse it in blank, or to some speci- fied person, without adding " or order ;" and if such person indorse it, any subsequent indorsee may sue any of the antecedent parties to the bill. As where the defendant drew a bill made payable to (y) 8 Wheat. 172 ; 6 Cow. 449. (1) For the exception to this rule in relation to accommodation indorsers of notes, see ante, pp. 576, 577. It seems the same rule is not applicable to accom- modation indorsers of bills of exchange. 11 Ohio, 62. (2) See Chitty, Jr., on Bills, 42, a, and the authorities there cited. The rules laid down on page 895, in relation to the liability of the transferrer of choses in action, are also applicable to cases where a note, bond, or bill of a third person is delivered without iadorsemeut. IXI.] PBOMISSOKT NOTES— BILLS — BONDS. 71 9> Wlien demand to be made. money, the transferrer, if he acted in good faith and without, knowledge that the instrument was worthless, will not be liable,, unless he agreed to be so.' We have already seen, that the holder of a negotiable instru- ment may, by his indorsement, transfer his interest in such a man- ner ae to exclude all claims upon himself, individually, in case the instrument is not paid." Sec XII. At what time demand of payment must be made from THE DRAWEE OR ACCEPTOR OF A BILL, OR THE MAKER' OF A NOTE OR BOND, SO AS TO MAKE THE INDORSBRS,. ETC., LIABLE. When a bill, bond, or note is payable on demand; or is negoti- ated after it is duo ; or the time of payment is not mentioned in it ;. or it is payable on sight, or a certain number of days after sight ; payment should be demanded of the drawee or maker, by the holder, within a reasonable time after' he received the instru- ment.'' This reasonable time must depend on the distance the par- ,ties live from each other, the course of the mail, etc. It should, if the parties reside in the same place, be presented for payment the- next day after it is received, at furthest. It is always safest to pre- sent it the day of receiving it. In general, if it is not presented on. the day it was received, nor on the next day, where the parties* reside in the same place, a subsequent demand would be deemed too late; and the drawer and indorsers would be discharged. So, where the maker of a note or bond, or the drawee or acceptor of a bill, resides in a different place from, the holder, and the holder- neglects to forward the bill for demand the day he receives it, and a^o the next day, this would be deemed an unreasonable delay." If the instrument is continually kept in circulation by transfers, this would excuse an immediate presentment of an instrument payable at sight, or at & certain time after sight.^ And it seems that circumstances, transpiring at the time of making the bill or the indorsement of the note or bond, which show that the parties^ did not contemplate an immediate demand, may be given in evi- dence, and will excuse an immediate demand and notice of noa- (z) Ohitty, Jr., on Bills, 42, a, 68; see (o) Chitty on Bills (N. Y. ed. 1830), p, 395. 271. (a) See p. 712. (d) 7 Taunt. 159; 3 Kent's Com. 92j„ (b) 6 Cow. 484; 20 Johns. 146; 13 20 Johns. 146. ■•■ Mass. 131. 720 PROMISSORY NOTES — BILLS — BONDS. [CHAP. When demand to he made. payment. Thus, where the indorRer of a note, payable on demand. «tated to the indorsee at the time of the indorsement, that the maker of the note would get into business again and pay, this was holden sufficient to show that an immediate demand was not con- templated; and that a demand within a few weeks, and notice given within two or three months, were sufficient to render the indorser liable." It will be observed that the above rules relate to notes, bonds, and bills, payable on demand, or negotiated after due, or when the time of payment is not mentioned in the instruments, or are pay- able on sight, or a certain number of days after sight. According to the law merchant, and by statute,' where an instru- ment is payable at a day certain, or so long after date, or after rsight, or any other particular day mentioned in it, it is not payable ^t the time the words naturally import ; but the acceptor or maker has until the third day and the whole of the third day, after and ■exclusive of the day of payment named in the instrument, to make the payment. Thus, when a note is payable on the first day of ^September, it is not due until the fourth, and on the fourth a de- mand shouJd be made. These three days are called days of grace. The rule '\b, that in order to charge the parties collaterally liable on the bill, bond, or note, (as the drawer or indorsers of a bill, and the indors'.'.rs of a note or bond,) presentment for payment must be made on the exact day the instrument, according to its tenor, becomes payable, after allowing the days of grace, if payable at a fixed tiroe, (a day before or a day after will not suffice,) and within a reasonable time, in case the instrument is payable upon demand. If the instrument be dated the 27th of August, payable two months .after date, it will be due, and should consequently be presented for payment, on the 30th of October.^ It will therefore be observed^ 1st, that the day of tJie date is excluded, or not reckoned; 2dly, that the months are calendar, not lunar months ; 3dly, that there are allowed three days' grace after the 27th October, when the two calendar months expire; and 4thly, that the third day of grace is the day on which the demand .and payment are to be made. If a bill or note be payable twenty -one or other number of days, (e) 3 Wend. 76; 18 Maes. 138, per (f) Bev. Stat., { 8176. Parker, C. J. (g) 10 Ohio^ 496. «,XI.] PROMISSORY NOTES — BILLS — BONDS. 721 When demand to be made. or so many months, after sight, a presentment to the drawee of the bill or maker of the note, is obviously necessary to fix the day of payment. The twenty-one days (etc.) will be calculated from the •day when such presentment was complete, not reckoning that day ; as, if presented on the 2d of September, the twenty-one days will ex- pire on the 23d September ; and, adding the three days' grace, the money will be payable on the 26th September. The three days of grace are allowed on bills, etc., payable in this country, whether payable at a day certain or after date, or after sight, or after demand ; or even, it seems, when ;^yable at (not ■after") sight ; but not probably when made payable on demand. But there is this exception made by statute in respect to the al lowance of days of grace, and it is this : All checks, bills of exchange, or drafts, appearing on their face to have been drawn on any bank, banker, broker, exchange-broker, •or banking company, and which are on their face payable on any specific day, or in any number of days after the day of sight or date thereof, are deemed due and payable on the day mentioned for the payment of the same, without days of grace being allowed thereon ; and it is not necessary to protest the same for non-accept- ance, nor to give notice of non-acceptance to drawer or indorser.'' In respect, however, to charging the drawer or indorser on account of non-payment, the same steps, in general, must be taken as upon bills of exchange ; that is, to make a demand of payment and give notice of non-payment to drawer and indorser. Ordinary checks on a bank or banker are not allowed days of grace.' When there is a custom to make demand, and give notice on the fourth day, the custom forms a part of the contract, and the parties are bound by it.'' A demand made before the third day of grace is a mere nullity, and the same as if made before the instrument was due. '^-1,^-t^When the third day of grace falls on Sunday, the demand must be made on the next preceding business day. So^Christmas day, New Year's day, the fourth of July, and a day appointed by the president or the governor as a day of fasting or thanksgiving, are, in regard to demand, or acceptance, protesting or giving notice of non-accept- (h) Kev. Stat., § 3175. ( j) 9 Wheat. 581 ; 11 Id. 431; 1 Pet. ( i j See sec. 19 of this chapter. U. S. 25. 732 PROMISSORY NOTES — BILLS — BONDS. [CHAP.. When demand to be made— Effect of not making in time. ance or non-payment of negotiable instruments, to be considered aS' Sunday ; and when New Tear's day, or the fourth of July, or Christ- mas falls on Sunday, the succeeding Monday must also, for the same purpose, be considered as Sunday ."^ Where grace is allowed, suit can not be commenced on the last day of grace.' If a negotiable note is payable on demand or no time for pay- ment is mentioned in it, in either case no days of grace are allowed. It was for some time doubted, in England, whether days of grace are allowed on Jbills payable at sight, but the weight of authority and custom is in favor of such an allowance. If the instrument is not commercial paper, and the day on which the debt falls due is a holiday, it is not payable until the next day." The presentment for payment must always be during the usual hours of business of that kind. If the party to whom presentment is to be made, be not in business, probably a presentment at any reasonable hour of the day not devoted to rest, though not an hour of business, among men of business, would be considered suffi- cient ; and a presentment at any hour, will suffice, in any case, if the party who is to pay, be met with, expressly remain to give an answer, and refuse payment. Where the demand is made upon partners, or the note is made: jointly and severally by two or more not copartners, a demand ■upon one is sufficient." The consequence of an omission to present the instrument for payment in due time, is, that although no particular injury or loss- can be shown to have arisen from the neglect, and the instrument ■would not have been paid if sooner presented, the parties to the instrument who are collaterally liable thereon, as the drawer and indorsers of a bill, and the indorsers of a note or bond, are respect- ively discharged from all liability upon the instrument, and also from the debt or damages on account of which it is given." The above rules in relation to the time of demand, and the con- seqaences resulting from omission or delay in making demand, are settled law in most of the states of the Union. They are easy to be understood, steady in their obligation, healthful to business, (k) Eev. Stat., ?? 3175, 8176, 3177. How., Miss. 129 ; 4 J. J. Marsh, (1) 102 Mass. 66. 832. (m) 20 Wend. 205 ; 1 Met. 48 ; 2 Hill, (n) 10 Ohio, 5. N. T. 588, 878; 4 Id. 129; 7 (o) 2 Burr. 669. LXI.] PROMISSORY NOTES — BILLS — BONDS. 723 How demand to be made. and have grown out of, and been tested by, the practical experience of many generations. Sec. XIII. Op the mode in which the demand mitst be made. A demand upon one of two or more joint makers of a note who are not partners, is suflScient to charge an indorser.P A demand upon one of several partners is also deemed a demand upon all. A demand can not be made by merely sending a letter by mail to the party of whom payment is required. As the person upon whom demand is made will be entitled to the instrument as a voucher, in case he pays it, the person who makes demand should, at the time, have possession of the instrument, so as to be ready to deliver it up ; for the demand will be invalid, if the drawee or maker refuse to pay, on account of th^ non-production of the in- Btrument.i In order to make the demand, deliver the bill, note, or bond, or send it by letter to some disinterested person who can be a witness, and request him to make the demand, pointing out to him the time. This letter, with the instrument, or even the possession of the in- strument alone, will be sufficient evidence of authority to make demand.' The demand may be made of the maker, drawee, or acceptor, personally, wherever he is found, even though the instrument be payable at another place, unless he object on that account." If ho is gone from home, it should be presented to his agent, who does business, and pays money for him, if any such agent can be found at his house, or place of business.' ,If he be absent, and have no such agent, it will be sufficient to make the demand at his house, to his wife or servant," or in their absence, of some other person belonging to the family ; or if no person be at home, or can by in- quiry be found, or if the djrawee or maker has absconded, no demand is necessary.^ If he has changed his place of residence to some other place within the state, the holder must endeavor to find him, and make the demand there ; but if he has removed out of the state, subsequent to the making of the bond or note, or accepting the hill,'' then no demand is necessary ; and the instrument need not (p) 10 Ohio, 5. (t) Campb. 596. (q) See see. 18 of this ohapte?-- (u) 2 Esp. 512. (r) 7 Mass. 483; 18 Johns. 230; 1 (v) 4 Mass. 45. Pick. 401, (w) 9 Wheat. 598 ; 6 Mass. 449. (s) 3 Johns, das. 71. 46 724 PEOMISSQRT NOTES — BILLS — BONDS. [CHAP. How demand to be made. be presented for payment at the former place of residence of. the acceptor or maker, ^ unless, indeed, the party has left some person there to do his business. If a particular place of payment is nam^ed in the instrument or \/ in the acceptance, and the holder intends to charge an indorser, he should, of course, make his demand at the place, even though the drawee or maker has removed out of the state, or absconded ; and being there ready to receive the money is suflScient.y In making a demand of payment, a request to pay, or some- thing amounting to it, should be made, and it is necessary that the note should be present ready to be delivered up on payment, or if lost or destroyed, that an indemnity should be tendered. The same demand of payment, in time and manner, and the same notice of non-payment, to make the indorser of a note, bond, or bill liable, is also necessary to make the drawer of a, bill re- sponsible. After a neglect and refusal to pay upon demand of the maker, drawee, or acceptor, the next step, if you mean to hold the indorsers and drawer liable, is to give them notice of such demand and non-payment. The instrument of protest of a notary public of this state, or of any other state or territory of the United States, accompanying a bill of exchange or promissory note, which has been protested by such notary public for non-acceptance or non-payment, must bo iheld and received in all the courts of this state as prima facie evi- .dence of the facts therein certified ; but a party may contradict, .by other evidence, any such certificate." A notary public acts as official agent of the holder of the bill, and as such makes demand and gives notice of non-payment. The instrument of protest (1) is, under the statute, evidence of these acta? (x) 3 Ohio, 307; 17 Id. 78. (z) Rev. Stat., ? 120. As to the ,(y) 6 Mass. 524; 3 Kent's Com. 99; hooks of a deceased notary 3 Ohio, 307. See ante, p. 702. public being evidence, see ante, (a) 26 Ohio St. 578. p. 167, note. (1) The protest of a notary public, in general, is in the following formt United States of America, State of Ohio. By this public instrument of protest be it known, that on , the day of , in the year of our Lord, 18 — , I, , a notary public for the county of , in the state of , by lawful authority duly commissioned and sworn, living in , in the county and state aforesaid, at the request of , holder of the original hereunto attached, at the close of banking hours, presented LXI.,]" PROMISSOKT NOTES— BILLS — BONDS. 725 , Notice of dishonor, etc. It is not, however, necessary to procure the protest of a bill drawn in this state and payable in another state, except for the purpose of recovering statutory damages, if there be any ; so that if a bill bt protested, the demand and notice may be pi'oved by other evi- dence than the instrument of protest." Formerly, by stututes, damages were given on protested bills of exchange drawn in this state and payable in another state. These statutes have been repealed, and no such damages can now be re- covered. Seo. XIV. Of the notice of demand and non-payment to be GIVEN to the drawer OF A BILL, AND TO THE IN- DOESER OF A NOTE, BOND, OR BILL, SO AS TO MAKE THE INDORSERS, ETC., LIABLE. 1. How the notice should be given. — This notice, if the parties re- side in the neighborhood of the holder, should be given personally, or by a messenger, sent to the dwelling-house ; and in such case, the notice must be personally served upon the party to be charged, either at his dwelling-house, or place of business, or wherever he may be found. If the party to be charged is temporarily absent from home, and the house shut up, still the notice may be left there; and whether the house is shut up. or not, It should be left in such a manner, as may be reasonably calculated to bring the knowledge of it home to him. If the parties live in different towns or townships, the notice by letter may be forwarded by mail. If the letter should happen to miscarry, this will make no differ- ence as to the rights of the holder ; for if the letter is properly (a) 6 Ohio St. 586 ; 10 Ohio, 180. the same , and^emanded thereof, which was refused . I then pro- tested the same for non , and notified the . Whereupon, I, the said notary, upon the authority aforesaid, have protested, and do hereby solemnly protest, as well against the drawer of the said ^| as against all other persons whom it doth or may concern, for exchange, le- exehange, and all costs, chai'ges, damages, and interests, suffered, or to be suf- fered, for the want of thereof. Thus done and protested at , the day and year, above written. And I certify that I have no interest in said . In testimony whereof, I grant these presents under my signature and the impress of my notarial seal of office. , Notary Public. ■ 726 PROMIBSOET NOTES — BILLS — BONDS. [CHAP, Notice of dishonor — What to contain, and form. directed to the right place, and sent by the mail, the holder is not required to see that it actually arrives. Ifor is it necessary to send by the mail. If the holder choose ho may send the notice by a private conveyance ; and it would be a good notice, though it should happen to arrive a little behind the mail. As to the place to which the notice should be directed, it should be sent or addressed by mail to the drawer or indorser's residence or place of business, if either is known to the holder, or upon diligent inquiry, can be ascertained ; and if neither are known nor can be found, the law dispenses with any notice whatever. While this is the general principle, the spirit of the rule requires that the notice should be sent to such place that it will be most likely promptly to reach the person for whom it is intended ; and, hence, a notice is sufficient, if sent to the post-office where the party usually receives his letters, (although not that of his residence,) as well as to that where he rosides ; and in all cases it may be sent to the place directed by the drawer or indorser ; and, in general, if sent as directed, will be sufficient both in reference to himself and parties who stand behind him on the bill. If the drawer or indorser is temporarily absent from his place of business, notice sent to him by mail, addressed to him at the place of his temporary sojourn on business, will not be sufficient, unless indeed it be proved that he actually received the notice in due time." Whether reasonable diligence has been used, is, when the facta are ascertained, a question of law, which can not be left to be de- termined by a jury.* If the indorser or drawer be dead, the notice should be given to his executors or administrators, if known to the holder on inquiry; or, if there be none appointed, or none known to the holder, then notice directed to the drawer or indorser by mail, or left with his faniily, wijll.be sufficient. 2. What the notice should contain, and the form thereof. — It is not necessary that the notice should be in writing ; but it is generally yiven in writing, as by that mode, evidence of it can be better pre- served. Ho particular form is required, but it should inform the party that a demand has been made on the instrument on the day it was (o) 14 Ohio St. 90; 2 Pet. 543, 570; (d) 14 Ohio St. 90; 2 Id. 343; 1 Pet 16 Johna. 218; 4 Wend. 328. 578. LXI.] PEOMISSORT NOTES — BILLS — BONDS. 727 Notice of dishonor — "What to contain, and form. due — that is, on the third day of grace — and payment neglected or refused. The holder may inform the indorser or other party of this himself, or send word by some other person. In order, however, to prevent all future difficulty, the better way will be to draw up a notice. Two things must be carefully attended to, in giving the notice : 1. The holder of the note or bill, in order to charge the indorser, etc., must inform him in the notice he gives, that the note, or bill, has been dishonored — that is, that demand has- been made when due, and that the note, or bill, is unpaid ; and this will not, it seems, be ipferred from mere notice of non-payment, nor from notice show- ing a demaild and refusal to pay, without specifying the time the demand was made." 2. The time when demand was made upon the maker or acceptor of the note, or bill, must be accurately stated. A mistake in this respect will, in general, be fatal.? If the notice state that the de- mand was made on a certain day, and that day was before or after the day demand should have been made, or if the notice state that the demand was made this day, and the date of the notice is before, or after the day the note foil due, this will be fatal, and the notice insufficient, although the demand was, in fact, made on the day the note or bill fell due. The notice will be good, although the description of the instru- ment be not exact, or a mistake be made in the name of a party, etc., if the error be not calculated to mislead.* All the law requires is, that the notice shall convey such information as may be fairly presumed to have informed the party that payment of the instru- ment had been demanded on the day it was due, and payment re- fused. It need not state that no personal demand could be made ; for what is equivalent to a demand, may be called a demand ; and if the acceptor or iriaker, on demand of payment,- pay part of the money due, this need not be mentioned in the notice.'' It is not necessary .to state in the notice, expressly, that the (e) 2 Ohio St. 359. It may admit of or bill became due. See 1 Am. doubt whether it is necessary Lead. Cases, 378, et seq., and to state in the notice the pre- cases there cited, cise day the demand was made, (f ) 2 Ohio St. 359. if the notice states that demand ' (g) 6 Ohio St. 536. was made on the day the note (h) 16 Johns. 61. 723 PEOMISSOET NOTES — BILLS — BONDS. [OHAP Notice of dishonor — When to he given. ^ holder looks to the indorser ; for that is, of course, implied, and may be presumed ;' but it is, in general, stated. The notice may be in substance as follows ; To C. D. I have this day demanded of E. D., payment of the note made by him to you, dated January 1, 18 , for sixty dollars, payable ten days after date, and indorsed by you, to me. E. D. refused payment, and I, as indorsee, look to you for payment. I am, etc., I. J. January 14, 18 . The notice can be easily varied to meet the case of the drawer or indorser of a bill, or note. 3. When notice must be given. — The notice, if the parties reside at a distance from each other, must be given by the first direct, con- venient, and practicable mail that goes on the day next after the day demand was made upon the piaker of the note, or bond, or upon the drawee or acceptor of the bill. Thus, if the demand of acceptance or payment was made on Thursday, and the indorser live out of the neighborhood, the notice may be sent on Thursday, and must be sent by the mail that goes on Friday, or put in the post-office on Friday, so as to go by the regular mail wh^ch leaves on Friday, unless it closes before the business hours of FridaJ^ Thus, if the bill is protested on Thursday, and the departure of the only mail of the next day, (Friday,) to the place of residence of the drawer or indorser, is ten o'clock a. m., and the time, of closing the mail ten minutes before nine o'clock, and the business hours of the place commenced at seven o'clock in the morning, the holder does not use due diligence if he neglect to send the notice by that mail.J If the mail had closed on Friday before early busi- ness hours, the holder might have deposited the notice in the post- office at any time on Friday, so as to go by the next mail. If the parties live in the same neighborhood, or city, the notice must bo given on Friday .'' (i) 1 Pick. 401 ; 2 Pet. U. S. 548; 11 (k) 1 Pick. 401 ; 8 Kent's Com. 104 ; Wheat. 431. 8 Wend. 170; 4 Wash. Cir. O ( j) 1 Ohio St. 206. 464. iXl] PHOMISSORY NOTES — BILLS — BONDS. 729 Notice of dishonor — To whom to be given. Sundays and holidays, however, are not to be deemed days in respect to the giving or mailing notices.' Upon receiving notice, an indorser has the same time allowed him lo give notice to those who may be liable to him, as is before stated in relation to the holder. Thus, if he receives notice on Thursday, he may send or give notice on Thursday, and must send Or give it on Friday, etc., as above stated. And so the person to whom»he sends notice, has the same time allowed him, after he re- ceives notice, to send or give notice to those whom he wishes to notify, in order to make them liable to him ; and so on, from party to party.™ When a bill of exchange was protested for non-payment in New York, and the agent of the holder, by the next mail, sent notice of the protest to the drawer, who resided at Eipley, Ohio, under cover to the holder at Cincinnati, who sent the notice to the drawer by the next mail, it was held that the notice was sufficient to charge the drawer." 4. To whom, and by whom, notice shall be given. — No notice is, of course, necessary to the ijjaker of a note or bond, or to the drawee of a bill, that payment is refused. But the holder of the instru- ment must give notice of demand and non-payment to all the other parties to the instrument whom he may wish to sue. He may se- lect out one or more particular indorser or indorsers, and give only him or them notice, and this will be sufficient; but he can not sue the drawer or other indorsers, to whom no notice is given by either of the parties to the instrument; for if an indorser receives notice from any one to whom he is responsible, he will be liable to any subsequent indorser, though he me^y have received no notice frofai the latter." It is, however, always safest for an indorser, when he receives notice of non-payment, immediately to give notice to the prior indorsers, to whom he may look for indemnity, in case he pays the instrument ; for a drawer or indorser of a bill, or indorser of a note or bond, who does not receive notice of the demand and non-payment from any of the parties to whom he is liable, is, in general, thereby discharged. Notice to one partner is notice to all, because each partner is the agent of the firm. But notice to one of two or more joint drawers (1) See ante, "p. 721. (n) 18 Ohio, 54. (m) 2 Campb. 2lO, note. (o) 5 Cow. 303. 730 PBOJUISSORT NOTES — BILLS — BONDS. [CHAP. In what cases demand and notice unnecessary. of a. bill, or joint accommodation indorsers of a bill or note, can not bo deemed notice to all.p Sec. XV". In what oases demand, and when both demand and NOTICE OP NON-PAYMENT WILL BE EXCUSED, AND WHEN NOT. A. bill of exchange is generally presumed to be drawa under the belief that the drawee has money, goods, or other effects of the drawer, in his hands, out of which he will be able to pay the debt. Now, if the drawee has not, in fact, any effects in his hands belong- ing to the drawer, and the drawee does not owe the drawer, and for that reason he refuses, on demand, to accept or pay the bill, no notice to the drawer is necessary.? This exception to the general rule proceeds on the ground that the drawer has been guilty of a fraud, in drawing a bill under such circumstances, and that notice to him would be useless. If, however, the drawer drew the bill under the honest expectation of effects being in the hands of the- drawee, as where he had sent goods to the drawee which had not arrived, or that a third person who owed the drawer would pro- vide funds for its payment; in such cases, notice must be given to the drawer. So, also, notice must be given to the drawer, if the want of it would produce any detriment to him; as, for instance, if notice had been given, and the bill taken up and paid by the drawer, he would have had a remedy over against some other per- son. Therefore, accommodation drawers, who unite as drawers with the person for whose use and accommodation they draw, are en- titled to notice of non-payment if they had reason to expect their principal would provide funds to meet the bill.' v^ But this exception only reliites to the drawer, for the indorsers of a bill drawn thus fraudulently, must have notice of the demand and non-payment, as in other cases. If demand has not been made, and notice of non-paj-ment of a bill, bond, or note, has pot been given, yet a subsequent promise to pay, by the party entitled to notice, will amount to a waiver of demand and notice; provided, the promise was made clearly and unequivocally, and with full knowledge of the fact that there was a want of due demand and notice."' ^(p) 7 Ohio St. 281. (r) 12 Wheat. 183; 1 T. &R. 712; 5 ^(q) 7 Ohio St. 281. Johns. 376 ; 11 Ohio St. 29. LXI.] PROMISSORY NOTES — BILLS — BONDS. 731 In what cases demand and notice unnecessary. Notice is excused to an indorser for whose accommodation the instrument was indorsed ; for then he is the one who is ultimately liable to pay it.' If the maker of a note or bond, being insolvent, assigns his prop- erty to an indorser, thus fully securing the indorser against his liability as indorser of the same bill, note, or bond, in such' case the indorser who has received the assignment will be liable upon his indorsement, though he have no notice of the demanid and non- payment of the note or bond.'j^So, notice is not necessary to an indorser, who, before the note or bond is due, has informed the holder that the maker has absconded, and requests farther time of payment." And, in general, if an indorser is fully indemnified, by mortgage, or otherwise, for the indorsement, the indorsee may maintain an action against him, without proof of demand and notice.^ \y When a malignant fever, or pestilence, like the cholera, prevails at the indorser's place of residence, suspending the transaction of ordinary business, delay of personal notice to him until the pesti- lence has subsided, and ordinary business is resumed, will be ex- cused.'" Demand is excused, where the maker, drawee, or acceptor has absconded, or has, since the instrument was given, removed out of the state ;^ but notice of non-payment must be given in such cases, to charge the drawer or indorsers. When a party wishing to make demand, or give notice, is igno- rant of the residence of the drawer, maker, drawee, or indorser,. it is not enough that he barely inquire for him at the place whei'o the instrument is payable; but he should inquire of others, whose names appear upon the instrument. If he use all reasonable dili- gence to find out where the party resides, and is unable to ascer- tain it, demand or notice upon such party will be excused. When the drawee or maker has merely removed to another part of the state, the demand should be made at his new abode, if known j if not known, then due inquiry after the party, with a view to make a demand, will be suflScicnt.y Calling at the drawer or indorser's place of business, during (b) 11 Johns. 180. (v) 18 Ohio, 170;''^2 Ohio St. 29. (t) 5 Mass. 170; 1 Serg. & R. 844 ; 14 (w) 2 Johns. Gas. 1. Ohio, 495 \^Z Ohio St. 295. (x) See ante, p. 723. (u) 1 Johns. Cas. 99. (y) Chitty, Jr., on Bills, 49. 732 PROMISSORY NOTES — BILLS — BONDS. [OIIAP. In what cases demand and notice unnecessary. business hours, and knocking loud enough to be heard, and repeat- ing this two successive days, with a view to give notice, the door being each time locked, is enough to excuse the want of actual notice.^ Demand and notice is excused, if the instrnment is void.fo.r forgery ; or be given for money won at betting or gaming." If the indorser contract with the indorsee that he will be respon- sible if not collectible by due process of law or the like, demand and notice when the note becomes due is not necessary, and reason- able diligence to collect by execution, and notice only of the failure to collect on the execution, is necessary to charge such indorBer.* The assignee of the note nnder such a guaranty is bound ordi- narily to employ only the usual process of law in endeavoring to enforce the collection, and is not chargeable with negligence for failing to sue out an attachment, unless it appear that he knew, or, in the use of proper diligence, could have ascertained such facts as would authorize extraordinary process." The law does not require a person to do what is impossible to be done. If the instrument can not be presented for acceptance, or .demand, in the regular time, from some inevitable accident, not in- volving the holder in any negligence or blame, as the detention of the instrument by adverse winds, rendering a presentment or de- mand in due time impossible, the rule is relaxed in favor of the holder, and the delay in effecting the presentment Or demand will be excused. Still, the earliest possible presentment must be made, when the impediment has ceased. So, the accidental and tem- porary loss of the instrument by the holder, or its being stolen from him, will also excuse a delay in presenting it for payment or ac- ceptance. In these cases, it is proper to inform the various parties of the cause of delay. If a bill be refused acceptance, and notice of non-acceptance has been given, it is not necessary to demand payment upon it, nor to give notice of non-payment." The insolvency of the drawer or drawee, maker, or acceptor, or the death of the maker, drawee, or acceptor, will not excuse a de- mand on the instrument, and notice; nor will knowledge by the indorser, at the time he indorsed the paper, of the insolvency of the (z) 1 M. & S. 545, (b) 14 Ohio, 490; 14 Ohio St. 246. (») 9 Mass. 1. (o) 5 Johns. 375. LXI.] PEOMISSORY NOTES — BILLS— BONDS. 733 Defense — want of consideration — get-offj etc. maker, excuse demand and notice.'* Indeed, in all cases except such as come within the principle of those above enumerated, the liolder must in general make demand of payment, and give notice of non-payment; unless waived by words or acts.^ Sec. XYI. In what cases the want or failure of considera- tion, ETC, MTAY BE SET UP AS A DEFENSE. (1) }. By the transfer of commercial paper, there are a great number of parties connected with it ; and as it passes from holder to holder, each one who transfers it, obtains some value or consideration from the immediate party to whom he delivers it. When the action is between two parties to an instrument, who stand in immediate connection with each other, as the indorsee against his immediate indorser, the consideration which passed be- tween them is a subject of defense ; and the want or failure in whole or in part, or the illegality of that consideration, or a set-off of a debt due from the plaintiff to the defendant, or any other mat- ter of just defense existing between them, may be set up by the defendant.' \^ So, when the suit is by the drawer against the acceptor, or by the payee against the drawer of a bill of exchange, or by the payee against the maker of a bond or note, they are parties who stand in immediate connection with each other, and therefore the same rule applies; and the defendant may set up a want or failure in whole or in part, or an illegal consideration, as between himself and the plaintiff, or a set-off of a debt due from the plaintiff to him, or other just defense. Where, however, the suit is not between two parties who stand in immediate connection with each other, but the action is brought by a third person or bolder who did not receive the instrument from the defendant, the want or failure of the consideration, in whole or in part, can not be set up as a defense by such defendant, (d) 3 Kent's Com. 110; 18 Ohio, 179./Jf ) 26 Ohio St. 33. (e) 32 Ohio St. 526. )^ (1) As to what is a good consideration, and wHafan illegal one, see p. 512, et seq. One may sign a note or bill under fraudulent assurance that it is a receipt or other different instrument. This will be no defense against a bona fide holder before maturity and for value, unless it be shown also that ignorance of the true character of the paper was not attributable in whole or in part to neg- ligence ; and one of ordinary faculties and able to read and write would in general be deemed negligent in such a case. 29 Ohio St. 467, 473, 480. 734 PROMISSORY NOTES — BILLS — BONDS. [CHAP. Defense — want of consideration — set off, etc. against.such third person or holder. Therefore, when the suit la by the payee against the acceptor, or by an indorsee against the acceptor or drawer of a bill ; or the suit is on a note or bond, by an indorsee against the maker; or the suit is by the indorsee of a bill- bond, or note, against an indorser who did not indorse the instru- ment directly to the plaintiff, but to another person ; in all these cases the defendant is not permitted" to show that he became a party to the instrument without consideration, nor can he be per- mitted to set up as a defense a payment to, or set-off against, other parties to the instrument. In such cases the plaintiff, in general, ' holds; the instrument discharged from all the equities and defense which existed between the defendant and the other parties to the instrument. To this rule, however, there are various exceptions, which will be now stated, together with some illustrations of the rule itself. EXCEPTION FIRST. If the plaintiff received a transfer of the instrument without pEiying any value for it ;' or for an illegal consideration ; or as a col- lateral aecurity fors(l) a debt which existed prior to and remains unaffected by the transfer i"" or to indemnify him if another debt should not be paid ; or with notice of the defense ; or after the instrument became due;' in every such case, the plaintiff takes the instrument subject to all the objections, defense, and equities, if any, to which the instrument was liable in the hands of the person from whom he received it, and stands in his shoes.' Notice of defenses before taking the paper does not affect an otherwise innocent holder, whose title is derived from a party who held the paper discharged from such defenses. Therefore, if the ) 1 Hall, N. T. 78. a:,XI.] PHOMISSOET NOTES — BILLS — BONDS. 747 Bankers' checks, iind rights and obligations of parties to a bank-chedc ^ particular place ; and to render the drawer of a check liable to the holder, it will be sufficient if a demand upon the bank has been made, at the bank, during the usual hours of business, and notice of non-payment given at any time before suit is brought thereon against the drawer, unless it appear that the bank has failed during the delay of presentment, or the drawer has in some other manner sustained injury by the delay of demand, or delay of notice of non- payment.'" ^ If the drawer has sustained injury by the delay of presentment, ■or notice of non-payment, the amount only of that injury in dam- ages can be set up by the drawer.* If the bank has stopped payment, the damages in general would be the amount of the check and interest. If, on presentment of the cheek to the bank for payment, the bank refuses to pay it, notice should be given to the drawer ia •order to charge him. v,When a check is drawn without funds in the bank, and without ^ny reasonable expectation that the bank would pay the cheek, the drawer will not be discharged by the holder's not presenting it in -due time, or not giving notice of its non-payment, although the bank in the meantime has stopped payment. \/But, in general, the drawer is not liable until the check has been •presented to the bank for payment, and payment refused, and he has nqtice thereof. If the holder of a check desires to charge the drawer and the person from whom he received it, with its amount, and to run no risk of the drawee becoming insolvent, he should present the check for payment within a reasonable time — that is, on the next day, at least, after he received it ; and if payment is refused, give notice to the drawer and'person from whom he received it within a reason- ^able time — that is, on the next day, at least, after it was presented for payment. But this reasonable time is not always limited to the next day, aa above stated. Thus, A., of Cincinnati, being indebted to B., at Springfield, Ohio, forwarded to the latter by mail, at his request, on Saturday, November 11th, a check of that date, drawn on a Cin- cinnati bank. The check was received by B. at Springfield, by duo ank as against a bona fide holder of the check, although the drawer has no funds in the bank,^ and it operates as a payment between the holder and drawer, although the bank suspends immediately afterward .s Bank -checks, like bank-bills, when payable to a person or bearer, or to bearer only, are legally transferable by mere delivery ; and. Wo) 8 Ohio St. 301. (f ) 52 N. T. 96. V (d) 17 Ohio St. 82. (g) 52 N. T. 850. "^(e) 20 Eng. 0. L. 412. XXI.] PROMISSORY NOTES — BILLS — BONDS. 749 Bankers' checks, and rights and obligations of parties to a. bank-check. they can not be followed by a party who has lost, or been cheated, or robbed of them, into the hands of a person who has subsequently taken them, bona fide, for value — upder circumstances not likely or calculated to create such suspicions as would amount to bad faith.' s_ Checks are frequently drawn payable to A. or order, or to the ■order of A., and in such case the banker is bound at his peril to -fieo that the person presenting the check is A. ; or if a third person presents the check, then the banker is bound to see that A.'s in- dorsement on the check is genuine. If A. has indorsed it in blank, that authorizes its payment to the holder the same as if the check was payable to bearer. If A. has indorsed such check to B. or order or to the order, of B., the identification of B., if he presents • the check for payment, or if presented by a third person, the gen- " uineness of the indorsement of B., must in general be ascertained by the banker at his peril, before payment.' u- tJf a bank pay a forged check, "the person whose signature is forged is not responsible for the loss. Where a check, drawn upon a bank for a sum of money, which ^\ described in the body of the check the amount in words and figures, | and was afterward altered by the holder, who substituted a larger \ sum for that mentioned in the check, but in such a manner that no / person in the ordinary course of business could observe it, and the i bank paid to the holder this larger sum, it was held that the bank ) could not charge the drawer for anything beyond the sum for whichy the check was originally drawn .J When, however, a genuine cheek is so carelessly drawn that an alteration may bo easily made, the loss arising from the alteration must be borne by the drawer. Thus, a customer of a bank deliv- ered to his wife certain printed checks signed by himself, but with blanks for the sums, requesting his wife to fill the blanks up accord- ing to the exigency of his business. She caused one to be filled up with the ^ovAs fifty dollars, the fifty being commenced with a small letter, and placed in the middle of. the blank line; the figures (50) were also placed at a considerable distance from^the printed $. In this state she delivered the check to her husband's clerk, to receive the amount ; whereupon he inserted, at the beginning of the line in which the' word fifty was written, the words three hundred and, (h) 27 Bng.O. L. 234,276; 8 Ohio St. \J(i),20 Ohio St. 234; 71 Eng. Q. L. 156; 27 Id. 374. 559; 30 Ojiio St. 2. ^ ' (j) 12 Eng. 0. L. 3C8. V50 PROMISSORY NOIES — BILLS — ^BONDS. [CHAP. Bankers' checks, and rights and obligations of parties to a bank-check. and the figure 3 between the $ and the 50. The bank having paid the $350, it was held that the loss must fall on the drawer.'' t- If a bank, under circumstances which should have excited sus- picion, pay a check which was drawn by a customer, but afterward torn up or canceled by him, and not meant to be used, the loss must fall on the bank.' In regard to the rights of innocent parties who negotiate or pay & forged check, the reader is referred to the preceding section of this chapter. v^(k) 13 Eng. C. L 420; 67 Fenn St. (1) 2 Campb. 486. 82. In what: 6ases the action may be bnmght. CHAPTER LXII. EEPLEVm. Sbo. 1. In what cases the action mat be brought. II. How the action brought, and the form of the AFFIDAVIT" AND WRIT. ni. The service and return of the writ. IV. The effect of the replevin bond. V. The proceedings after the return of the writ. VI. Forms of verdicts and docket entries. Sec. I. In what cases the action mat be brought. The object of this action is to recover the possessioii of specific- personal property, and damages for its detention. Justices of the peace have exclusive jurisdiction in all cases of replevin where the value of the specific personal property, the pos- session of which is sought to be recovered, is less than one hundred dollars; and concurrent jurisdiction with the court of common pleas, in all cases where the value of such property is one hundred dollars, and not more than three hundred dollars.* The action is regulate^ by statute.* In order to maintain the action, the plaintiff must have a right to the immediate possession of the property. at the time of the com- mencement of the action." This right of immediate possession may arise from the fact that the plaintiff is the general owner, and entitled to possession as against the defendant, or that the plaintiff has a special property in the goods. Thus, an oflScer by levy, a commission merchant, common carrier, landlord, or other persoa having a special ownership of, or lien upop property, and entitled to its possession, may resort to this action as against a mere wrong- (a) Bev. Stat., ? 589. (c) 5 Ohio St. 92 j 2 Id. 82; 19 Id,- (b) Bev. Stat., i 6613 et seq. 291. 752 KBPLEVIN. fOHAP.' In what oases the action may be brought. doer having^ no right in it f and against the general owner, if he unauthorizedly interferes with such possession. The possession of the goods hy the servant is the possession of the master. If two persons are joint owners of the goods, the possession of ■ one is the possession of the other ; and neither can bring an action of replevin against the other.« The statute provides that the plaintiff, in his affidavit to procure .the writ of replevin, shall state that the property has not been taken from the plaintiff by virtue of any order of delivery in re- plevin, etc. This state of facts, however, does not prevent the plaintiff from having a writ of replevin upon a cause of action that accrued to him subsequent to the time when the property was replevied from him. The statute also requires the plaintiff to swear that the goods were not taken in execution upon any judg- ment, or mesne or final process against him, etc. These provisions are effectual to prevent the plaintiff from suing in replevin, unless he has, subsequently to such levy or seizure, acquired a valid right to the property, or something has since transpired by which the execution, or mesne or final process has become inoperative to hold the property.' Thus, a mortgagor, having a right by the terms of a chattel mortgage to the possession and use of the prop- erty mortgaged, until the mortgage becomes absolute by the non- payment of the debt, may replevy the goods from the mortgagee, if he wrongfully takes possession of them before the debt is due ; and. after that period has expired, the mortgagee, even if the action of replevin is then pending against him, may replevy the goods back, fltating in bis affidavit the facts, and a demand of the goods, and thus showing that his cause of action accrued after the commence- ment of the first suit.s ^^ So, if an officer levies on the goods of the judgment debtor, and sells sufficient to satisfy the execution, and wrongfully withholds the residue of the goods from the judgment ■debtor, he may, on demand, replevy the goods. j In general, among courts of equal or concurrent jurisdiction, the lone which first asserts its jurisdiction over the subject-matter by (d) 2 Ohio St. 82, 85; 10 Id. 471, (f) 2 Ohio St. 82. 472. ^,{g) 2 Ohio St. 82 ; 22 Id. 598. (e) 7 Mass. 188 ; 1 T. K. 658. As to replevin of goods increased in value by !the wrong-doer, see post, p. 836. !LXII.] REPLEVIN. 753 How action brought, and form of affidavit and writ. entertaining a suit, -obtains thereby exclusive jurisdiction of th» flubject-matter. (l)U' SbO. II. Sow THE ACTION BEOUGHT, AND THE FORM OP THE AVPI- DAVIT AND WRIT. An action of replevin can not be brought until there is filed in" the oflSce of the justice, an affidavit of the plaintiff, his agent or attorney, showing: 1. A description of the property claimed. 2. That the plaintiff is the owner thereof, or has a special owner- fihip or interest therein, stating the facts in relation thereto, and that he is entitled to the immediate possession of the property. 3. That the property is wrongfully detained by the defendant. 4. That it was not taken in execution on any order or judgment against said plaintiff, or for the payment of any tax, fine, or amercement assessed against him, or by virtue of an order of de- livery issued in replevin, or any other mesne or final process issued against said plaintiff.^ The affidavit, however, may omit the first and last clauses of the above fourth subdivision that are in italics, and in lieu thereof, show that the property was taken in execution upon a judgment or order •other than an order of delivery in replevin, and that the same is exempt from execution, under the law of this state.'' Upon such affidavit being made and filed with the justice, he must issue a summons as in other cases, but in addition, command- ing the constable immediately to seize and take into his custody, wherever they may be found ip the county, the goods and chattels nientioned in the affidavit, and deliver the same to the plaintiff.' If a justice issues a writ to replevy, property, without the affl- (h) Eev. Stat., § 6613. See preceding (i) Eev. Stat., g 6614. section of this chapter. 1^1 ) But where the goods of B., under process against C, were seized by the mar- shal of the United States in a suit brought against C. in the circuit court of the United States, the seizure does not vest in the court any jurisdiction ;ver the goods ; and therefore an action by B. to replevy the goods, may be main- tained in the courts of the state ; for the marshal, in seizing the goods of B. upon process against C, acted wholly without warrant or lawful authority, and thereby became a trespasser, and' amenable to the courts of the stale in whicl* the wrong was committed. 12 Ohio St. 189. 754 RBPLBVIN. [CHAP^ How action brought, and form of affidavit and writ. davit being madfe and filed in his oflSce, the same must be set aside at his costs, and he will also be liable in damages to the party in- jured.J The afiSdavit of the right of property and possession, and wrong- ful detention by the defendant, takes the place of the bill of par- ticulars.^ v^ The affidavit may be in the form following : Wo. 105.] Form of affidavit to procure a writ of replevin. The State of Ohio, Franklin c6unty, Montgomery township, ss. A. B., being duly sworn, deposes and says : 1. That he is the owner of the following described property^ \or say, That he has a special ownership and interest in the follow- ing described property,] to wit : [here describe the property, as thtis : one bay horse, one harrow, and two sheep.] 2. That [if there be any facts peculiar to the ownership, or if the ownership be limited, or special, here state the facts in relation thereto.'^. 3. That this deponent is entitled to the immediate possession of said property. 4. That said property is wrongfully detained by one CD. 5. That the said property was not taken in execution on any order or judgment against this deponent, or for the payment of any tax, fine, or amercement assessed against him, or by virtue of an order of delivery, issued in replevin, or any other mesne or final process, issued against this deponent. [If the property was taken on execution, but exempt, omit the words in italic, and state the fact; or if taken on execution, etc., state the facts which have since transpired that render the action proper, see p. 752.] A. B. Sworn to and subscribed before, etc. JVo. 106] Form of writ of replevin. Follow the form of summons, ante, page 48, to the words, " to answer the action of A. B.," and from those words proceed as follows: to answer the action Of A. B., for wrongfully detaining, etc., the following described personal property of the said A. B., to wit: IJiere describe the property as in the affidavit.'] And you are further commanded immediately to seize and take into your custody, wherever they may be found in said county, thft ( j) Rev. Stat., § 6626. ^x) Per Peck, J., 12 Ohio St. 550. tXII.] RBFLEVIN. ?5$ Service and return of the wnt. said goods and chattels above mentioned, and deliver the same ta the said A. B. You will make due return of this writ on the day of ^ A, D. 18—. Witness my hand, this day of , [the day when issued,^ A. D. 18—. G-. H., J. p. Sec. III. The seevice and return of the writ. The constable executes the writ by taking the property therein mentioned. He may break open any building or inclosure, in which the property claimed, or any part thereof, is concealed ; but not until he has been refused an entrance into the building or in- closure, and the delivery of the property, after having demanded' the same.* «^ The complaint of the plaintiff is that the defendant detains the property. If, therefore, the officer finds the property in possession of and detained and claimed by a third person as owner, the officer should not interfere or take it, unless he is indemnified by the plaintiff; for the plaintiff has then sued .the wrong person. If the property is in the possession of those who are taking care of it for the defendant, or who claim no right to its possession, as against the defendant, the officer may seize it,' for then it is constructively in the possession of the defendant. Thus, a constable who has deliv- ered property levied upon, to the debtor upon his executing a re- delivery bond, is,^as to third persons and other officers, construct- ively in possession.™(l) In executing the writ the constable must also deliver a copy of the summons to the person charged with the unlawful detention ^(k) Rev. Stat., g 6624. (m) 10 Ohio St. 462. (1) 6 Ohio St. 73; 14 Id. 73; 83 Id. 532. (1) 6 Ohio St. 73. The sureties of the constatfle, it seems, are liable to the owner of property improperly seized by the constable as the property of the defendant ; and the record of the recovery by the owner against the constable for the tresspass, is admissible as prima facie evidence against the sureties in an , action against them, although they had no notice of the action against him. Id. lb. ; 3 Ohio, 487 ; 5 Id. 136. So, the record of a judgment against an officer for a false return, or for neglecting to make a levy, may, in like manner, be used in evidence in a suit agauist the sureties of the officer to recover therefor. Id. lb. Such suits, however, against sureties on official bonds, are, in general, brought only in the court of common pleto. 48 756 REPLEVIN. . , [iDHAP: Keplevin bond or undertaking of plaintiff, and action thereon. of the property, or leave such copy at his usual place of residence, and make return of the time and manner of service, the appraisement -of the property, and any undertaking taken by him." The constable can not deliver to the plaintiff, his agent or attor- ney, the property so taken, until there has been executed by one or more suflScient sureties of the plaintiff, a written undertaking to the defendant, (commonly called the replevin bond,) in at least double the value of the property taken, but in no case less than fifty dollars, to the effect that the plaintiff shall duly prosecute the Taction, and pay all costs and damages which may be awarded .against him." For the purpose of fixing the amount of the undertaking, the value of the property taken must be ascertained by the oath of two responsible persons, whom the constable will swear truly to assess the value thereof.? If the undertaking above mentioned be not given within twenty- four hours from the taking of the property under the writ, the of- ficer must return the property to the defendant. And if the oflScer -deliver any property so taken, to the plaintiff, his agent or attor- ney, or keep the same from the defendant, without taking such security within the time aforesaid, or if he take insufficient security, he will be liable to the defendant in damages.^ If the plaintiff fails to give an undertaking, or the property claimed has not been taken, the action may still proceed to trial and judgment. The undertaking may be in the form following : jVb. 107.] Form of the replevin bond or undertaking by plaintiff in replevin. A. B., plaintiff, | j^^ replevin, before G. H., j. p. of town- -C. D., defendant, j ^'^^P' '^^'^^^y' ^^'''- "We bind ourselves to the defendant, C. D., in the sum and to the amount of [here insert double the value of the property, and in no case less than fifty dollars,'] dollars, that the plaintiff, A. B., shall duly prosecute this action, and pay all costs and damages that may be -awarded against him. E. S. Columbus, May 16, 18 i. L. M. Attest : 0. C, constable. (n) Kev. Stat., g 6615. (p) Kev. Stat., § 6617. ,(o) Bev. Stat., ? 6616. (q) Bev. Stat., g 6619. iSLXII.] EEPLEVIN. 757 Appraisement — Keturn — Proceedings after return of writ. The appraisement may be iii the form following: Form of appraisement of property taken in replevin. We, the undersigned, two residents of the township of , in county, having first been duly sworn by C. C, constable of «aid township, to assess the value of the property seized by virtue of a writ of replevin, issued by G. H., j. p., etc.., at the suit of A. B. ■V. C. D., do, upon actual view, assess the value thereof as follows : One bay horse, valued at / $40 00 One brindle cow, valued at 10 00 $50 00 Witness our hands, this day of , 18 — . J . J. P. S. I do hereby certify that the above-named J. J . and P. S., two .Tesponsible persons, residents of township, county, were -duly summoned and sworn by me truly to assess the value of the .above described property, and made appraisement thereof as above -set forth, this day of , 18 — . C. C, constable township. The return upon a writ of replevin may be in the form fol- Jowing : June 22, 18 — . Eeceived this writ, and on same day I replevied 'the goods and chattels within described; caused the same to be ap- praised as per schedule hereto attached ; the within-named A. B. ^ave a replevin undertaking according to law, with L. M. and E. S.J :suffl"cient sureties, herewith returned, and I delivered the property to him. Also, June 23, 18 — , [here state the service of the writ upon the defendant, as in the forms ante, pp. 57, 58.] Fees: Disposition of keepsakes, pictures, etc. The above directions as to the mode of proceeding generally, is not applicable as to certain kinds of personal property which a defendant in replevin may, by prompt proceedings, prevent the constable from delivering into the possession of the plaintiff; for it is provided by a recent statute,' that if the property replevied con- (r) Ebt. Stat, § 6616. 758 REPLEVIN. [OHlAK Bflfect of the replevin bond. sists of beir-looims,-^ — personal keepsakes, or other articles of property, the value of which consists, in whole or in part, in its^ being a relic, model, gift, family pictufe, painting, or a rare pro- duction of art or nature, and not wholly in its general marketable^ character — these the constable must retain and safely keep suhject to the order of the court, and their disposition will depend upon the following proceedings, to wit : The defendant, or his agent oi attorney, may, on or before the time named in the summons foi trial, file with the justice a motion requiring the constable to retain' said articles, subject to the final order of the court. This motion must be heard and determined by the justice before the trial of the action in replevin, or hefore he certifies the action for trial in the^ court of common pleas, as hereafter mentioned. If the defendant does riot file a motion for the above-mentioned order, or the justicOr on application of either party, refuses to order the constahle to re- tain said articles for the reason that they are not the kind above- designated, the constable must, in that case, proceed in the usual manner ; that is, deliver the articles to the plaintiff, his agent or attorney, upon the execution of an undertaking as for other prop- erty replevied, within one day after the expiration of the time for filing said motion, ol", in case the motion has been filed, then within one day after the refusal of the justice to order the constable to re- tain the articles; and in case such articles exceed three hundred dollars in value, and in case of appeal from the final judgment and order of the justice, the justice must order the constable to turn over the articles in his possession to the sheriff of the county, to be- held by him as in like cases originating in the common pleas.' v- ' Sec. IV, Th£ EprECT of the replevin bond. Where the plaintiff claims the general ownership of the property replevied, and executes a replevin bond, the bond, in respect to any title or interest of the defendant in the property, takes the place of the property replevied, and the plaintiff, by force of the replevin bond, is vested, in general, with all the title and interest which the defendant had in the property, and he may at once sell and dispose of it. The subsequent trial of the action of replevin, therefore, is not to disturb the possession or ownership, of the- plaintiff thus acquired under the replfsvin bond, but to adjust the \f(e,) Eev. Stat., § 6616. a,XII ] KEPLEVIN. 759 Dffect of the replevin bond. damages growiag out of this effect of tke replevin bond. The de- -fendant, consequently, must rely upon the verdict and judgment, .and replevin bond, for compensation fbr whatever interest or title he had in the property. Observe that where the plantiff claims as owner of the goods and executes a replevin bond, he acquires the interest and title only of the defendant in the property. If any person other than the plaintiff and defendant, had any title or in- terest in the property at the time it was seized in replevin and delivered to the plaintiff, such interest or title is not, in general, affected by the replevin proceedings, and may be asserted by an .:action of replevin if it is a possessory right ; but neither the defend- ;ant nor those cjaiming under his title can dispute the title of the plaintiff if he gave a replevin bond and claimed as general owner. Thus, creditors of the defendant can not, by levy on the property, impair the plaintiff's title.' A judgment in replevin against the carrier of goods replevied while in transit,'does not estop, oy preyent the person to whom the goods were consigned, who was not a party to the action, and in nowise participated therein, from setting up his claim to the goods by action of replevin against the plaintiff to such judgment.' Most of the above remarks as to the effect of the replevin bond jupon the ownership of the property replevied, relate to cases where the plaintiff claims the property as general owner. It frequently happens that a person who does not claim to b© the general owner, brings an action of replevin, having, as he .«laims in his affidavit in replevin, a special property in the goods. Thus, one who hires the use of property, or who holds it as a pledge, or has a possessory lien, such as a common carrier for freight charges, or the like, may bring an action of replevin against the owner or . other third person who takes and withholds possession of the prop- erty. Where the plaintiff thus claims a special property only, in the goods, and gives a replevin bond, the bond takes the place of -the property replevied, to the extent only of the interest or title which the plaintiff claims, and to that extent only the interest and liijle of the defendant passes to t-he plaintiff. This rule may bo -expressed thus : Where the plaintiff claims a special interest only 4b the goods replevied, and gives a replevin bond, the bond takes .{the place of the property to the extent of the interest of the de- (s) 14 Ohio St. 182; 10 Id. 461 ; 17 (t) 22 Ohio St. 598. Ohio, 154; 2 Ohio St. 62. 760 REPLEVIir. [OHAP.. Proceedings after the return of the writ. fendant in replevin, but not exceeding the title or interest claimed by^ the plaintiff in replevin.^ ^ No action can be maintained by the defendant on the replevin bond until an execution issued on the judgment in replevin in his favor, has been returned that sufiScient property whereon to levy and make the amount of the judgment can not be found in the county/ t -Sec. V. PaooEEDiNGs aftee the rettjkn of the writ. Whenever the appraised value of the property exceeds three hundred dollars,. the justice must certify the proceeding in the case to th« court of common pleas of his county, and thereupon file the original papers, together with a certified transcript of his docket entries, in the clerk's office of the court. '' The action will then be preceded with in the court of common pleas as if commenced there.™ The suit in replevin, as to trial by jury (or by the justice, if no 'jury is applied for),' continuance, bill of exceptions, etc., is subject to the same usages and rules as other civil suits before a justice. In all cases, when the property has been delivered to the plaiut- iflf, where the jury find for the plaintiff on trial, or on inquiry of damages, they must assess adequate damages to the plaintiff for ■ the illegal detention of the property, for which, with costs of suit, the justice must render judgment against the defendant.'^ When the property claimed has not been taken by the constable, the plaintiff may still, as already stated, proceed with his action of replevin to trial and judgment. In general, on such trial, the ■principal inquiry will be whether the defendant unjustly withholds- the right of the plaintiff to the possession ; and if he does, the • plaintiff will be entitled to recover, in damages, the value of hia interest in the property. The interest or title of the plaintiff in the property does not, in such case, pass to and vest in the defend- ant until payment of the jadgment.^ [^ If the property was returned to the defendant for the want of a replevin bond, or remains in the hands of the constable, the plaint- iff may proceed in his action for damages, but must pay all the costs of taking the property, if it was returned to the defendant (u) 10 Ohio St. 471, 472. See 26 Id. (x) Kev. Stat., § 6622 \^ 659. Uy) ^0 °^'° s*- ^^^• ^v) Eev. Stat., ? 6626. (a) 26 Ohio St. 480. (w) Eev. Stat., § 6618. IrXII,] REPLEVIN. 761 FTOceedings after the return of the writ. for the want of a replevin bond." Of course, if the defendant re- tains the property, the damages will cover the loss, if any, of the plaintiff thereby. If the property remains in the hands of the constable, it is subject to the order of the justice ; and the verdict in such case will depend upon the fact whether-there has been any wrongful detention of the goods, and whether the finding anc* order of delivery of the property to one of the parties, will entitle- the other to any damage on account of any interest the latter had. in the property at the commencement of the suit. In all cases where judgment is rendered against the plaintiff, or if he otherwise fail to prosecute his action to final judgment, the- justice must, on application of the defendant, or his attorney, im- panel a jury to inquire into the right of property and right of possession of the defendant to the property taken. If the jury should be satisfied that the property was the property of the defend- ant at the commencement of the action, or if they find that the de- fendant was entitled to the possession only of the same at such time, then, and in either case, they must assess^uch damages for the de- fendant as are right and proper,'' for which, with costs of suit, the justice will render judgment for the defendant, and the justice will- also order any property in the possession of the constable to be- delivered to the defendant.' In all cases where the property has been delivered to the plaint- iff, when the jury find for the defendant, they must also find? whether the defendant had the right of property, or the right of possession only, at the commencement of the suit ; and, if they find either in his favor, they must assess such damages, as they think right and proper for the defendant ; for which, with costs of suit, the justice will render judgment for the defendant. And in all cases where property remains in the bands of the constable, the- jury inust find which party had the right of possession and the right of property, or right of possession only, at the commence- ment of the suit ; and if they find either in favor of the plaintiff or defendant, they must assess such damages as they think right and proper for the prevailing party ; for which, with costs of suit, the justice must render judgment, and also order the constable to deliver such property to the party in whose favor judgment is ren- dered.'' (z) 14 Ohio St. 187. (b) Kev. Stat., ?? 6621, 6622. (a) Eev. Stat., ? 6620. As to justice (c) Kev. Stat., ? 6623. trying case, see ante, p. 760. 762 EEPLEVIN. [OHAP. Proceedings after the return of tbe writ. As to what damages are right and proper for the defendant to re- cover, where the plaintiff has executed a replevin bond : In each case, if the plaintiff claimed to be the general owner, he, as has already been stated in the fourth section of this chapter, thereby acquired not only the right of possession as against the- defendant, but also all the right and interest of the defendant in the property. If the plaintiff claims a special property only in the goods, and has given a replevin bond, he has acquired, by executing the bond, the right of possession as against the defendant, and also the special interest claimed by him as against the defendant, but not exceeding the special interest so claimed by the plaintiff." These rights, interest, and title, so acquired by the plaintiff under the replevin bond, are not to be changed or disturbed by the verdict or judgment; but damages must be awarded in their place so as to indemnify the de- fendant from, this effect of the replevin bond upon his interest in the property'. Thus, if a mortgagor of goods replevies the goods as general owner from the mortgagee, and executes a replevin bond, if, on the trial, the mortgage is found to be a valid subsisting lien, the de- fendant will be entitled to damages for the amount of his lien, if the value of the goods are equal to their amount ; for the plaintiff obtains by the execution of the replevin bond the interest of the mortgagee in the goods. But if the mortgagor replevies the goods from the mortgagee, claiming only to be entitled to the p osse s- sian under th^ mortgage, and it is found on the trial that the de- fendant was entitled to the po ssessi on, the latter will , recover damages, only on account of the loss of his possessory right under the mortgage. Where, by execution against the mortgagor of goods entitled to possession and use, a levy is made, and the mortgagee, as such special owner, replevies the goods levied upon, from the officer, and executes a replevin bond, and it is found on trial that the levy was effectual, and the officer entitled to the possession, the proper damages would in general be the amount of the execution, if that was less than the value of the mortgagor's interest in the goods, or the value of the mortgagor's interest, if that was less than the amount of the execution ; but if the mortgagor was insolvent, the mortgage debt due, and greater than the value of all the goods mortgaged, and the mortgagee entitled to the possession of the (c) 10 Ohio St. 471, 472. See ante, sec. 4 of this chapter. fCXlI.] REPLEVIN. 763 Forms of verdicts and docket entries. -whole and not a part, whenever he demanded it, the defendant who levied on a part of the goods would be entitled to nominal damages only, for the property was valueless to satisfy the execution." '>-' The commencement of a suit is the exact time when the consta- ble received the writ.* y Hence, a transfer of the possession of the property by the defendant, between that time and the service of the writ, can not defeat a recovery of damages for detention.* L- -Sec. VI. Poems of veedicts and docket entries. j. A. B., plaintiff, 'v. ^ In replevin. No. 'C. D., defendant. September 19, 1875, Affidavit filed and writ of replevin issued .-and delivered to C. C, constable, for the following property, to wit : f\here describe the property as in the affldavif] The appeaTance re- hio, 304. tXIII.] SALES. 771 When a sale is complete. the seller is not required to deliver specific goods, but only certain goods or articles of the kind, quality, and quantity specified in the contract, as a hundred bushels of corn, in such case no ownership in anj"- goods or articles passes to the buyer until specific goods are selected and delivered, or tendered to the buyer ; such a contract is au executory contract — that is to bo executed afterward. The gen- eral test to determine whether a contract of sale is thus executory, is whether the seller has the right to perform it by tendering any goods or articles he pleases, of the quality and kind required by the contract. If he has that right, under a fair interpretation of the contract, it is executory." t- If you order a person to send you a certain quantity of goods, on a certain credit, and he send you a less quantity, or a differ- ent kind, or send the goods and require a shorter credit, you may refuse to receive the goods, as the seller has not acceded to your terms ;p but if you accept the goods, they are then yours, and you are liable to pay for them according to the terms of the seller. « Where a commercial contract is to sell certain spejcific articles at a certain price, " to arrive," or " to be shipped,*' or " loaded," on a certain future day-^— as, for instance, " sold to A. B. two thousand sacks of Liverpool salt at two dollars per sack, to arrive by the 15th of November" — the sale is a conditional one; the words "to arrive " not importing an absolute sale or positive agreement to de- liver the article on that day, but contingent on its arriving on or before the day named.''j,x-- If you sell me property, and it turns out that at the time of the sale it was dead, burnt, or otherwise destroyed, though the fact was unknown to both of us, the contract is not binding, but necessarily Moid. And, in general, where a contract is made for the sale and de- livery of specific articles, under circumstances where the title does not vest in the buyer, and the property is destroyed by an accident before delivery, without the fault of the seller, the latter is not liable upon the contract for damages sustained by the buyer." But this rule is applicable only where there is a sale of a specific article; for if you agree to sell me fifty bushels of corn, without V (o) 20 Ohio St. 295. See for an illus- 1^{t) 23 Ohio St. 632 ; 5 M. & W. 639 ; \^ tration, Chap. XIV., s?c. 7. 9 Id. 600 ; Addison on Don. 182, (p) 7 Johns. 470. (s) 47 N. Y. 62. (q" 8 Johns. 534 49 772 SALES. [chap- When ownership passes — ^Purchase effected by fraudulent pretenses, etc. any agreement as to the specific corn which is to belivered, you must fulfill your contract, though the corn which you intended foi me be destroyed. Where goods are ordered to be made, no property, in general, passes to the person for whom they are made, until they are com- pleted and delivered, even though he has paid for them in ad- vance.' But if the person who orders an article to be made, find a part of the materials, and a mechanic a part, then the relative value of the materials found, will determine who is the owner when the materials are united." For instance, if you furnish a tailor with cloth, and order a coat to be made, and he use his own thread to make the coat; here the materials you furnished are the principal, and his merely secondary to yours, and consequently the thread became yours the moment it was united to the coat. But if you ■Order a tailor to make you a coat, he finding the cloth and you the thread, the cloth and thread are both his the moment they are worked up, and the ownership does not pass to you until completed and delivered. The ownership, in such cases, turns on the ques- tion, whether the mechanic or the person who ordered the article to be made, furnished the principal materials in point of value. Possession of goods is prima facie evidence of ownership, but no purchaser of goods can be secure in the title of the seller ; for, if the seller was not the owner, and had no authority from the owner to sell, the buyer will have no title whatever to the property he has bought, as against the true owner/ altho;igh purchased an the ordinary course of trade, from a thief or from any other person.^ J_ Thereforej if a storage merchant, or a boatman on the canal, or other person, without leave of the owner, sell goods in his pos- session,'" the buyer acquires no right to them, as against the UDwner. He who has been induced to part with bis property, by fraudu- lent representations or false pretenses on the part of the purchaser, may avoid the contract, and claim the return of his propci-ly. Fraud destroys the contract, and the fraudulent purchaser acquii-es no title. But the seller must act promptly, upon discovering iLq (t) 10 Eng. C. L. 186 J 1 Taunt. 818; Ijv} 16 Ohio, 509; 5 Id. 202; 2 Stark. U Eng. 0. li. 9 ; but see 7 Eng. 811 ; 1 C. & B. 672 ; 8 B. C. 88- C. -L. 810. 4 D. E. 648 ; 45 N. Y. 887. ^ui) .7- Johns. 472. (w) 2 Campb. 885; 6 Wend. 32. jfx) See post, p. 886. hXTll."] SALES. 773 Purchase effeeted hy iraxij^ient psetenses, etc. fraud, and be mmet return, or oiffer to return, 'whatever he has reoeiyed upon it. He must rescind the whole contract, and thus place the fraudulent party in the position he occupied before the sale.* The seller may iramediately pursue, or sue for the recoveiy of the goods ^without a demand ; and it will be sufl&eient if he offer, at the trial, to siirceinder the note for which the goods were sold :>' but it is safesft for the seller to demand the goods and tender the note before action. If A. obtains igoods of B. by false pretenses, a,nd give therefor an accepted draft upon C, an aceommodatioo acceptor, it is no defense i n am action of replevin, instituted by B., against a. stranger in whose possession the goods are found, that the .draft has not previously been returned to A.*/" If, upon the fraudulent pretenses of B., or by B. pretending to be A., I am induced to sell goods to A., and upon A.'s credit, and box them up and put them in an express wagon directed to A., and B. contrives to get possession of them, before delivery to A., and sells them to C, an innocent purchaser, I can still claim the goods; for, in such case, C. does not pretend to purchase or derive title to the goods from A., the person to whom I sold, but from an outsider.Q.) v>^ But if I iad delivered the goods to A., the fraudulent purchaser, and thus clothed him with the insignia of title, and A. sold the goods to an innocent purchaser, the latter would be entitled to the goods under the rule, that if one of two innocent persons must suffer, ho who first trusted such third person, and placed in his hands the means which enabled him to commit the wrong, must bear the loss. In general, therefore, if goods obtained by fraudulent pretences from the true owner, who intended at the time of the sale and de- (x) 14 Barb. 597 ; 15 Ohio, 215 ; 1 Mass. 502 ; 15 Id. 319^ 1 Denio, Met. 547 1 8 Id. 278 ; 2 Hill 69 ; 3 Sandf. 589. (N. Y.), 288 ; 1 Id. 3.02, 311 ; 5 ,(y) 22 Pick. 18 ; 3 Sandf. 589 ; 1 Id. Id. 390, 183; 17 Eng. C. L. 560; 1 Met. 557. 330; 2 Id. 25; 1 Esp. 430; 4/2) 15 Ohio, 200. ,,/ (1) 22 Ohio St. 394. A contract for the purchase of goods on credit, made with intent, on the ipart of the purchaser, not to pay /or them, is .■fraudulent, and the seller may, acting promptly, reclaim the goods as stated in the text. So, if the purchaser has, in fact, no reasonable expectation of being able to pay, it is equivalentto an intent not to pay. But -where the .purchaser intends to pay, and has reasonable expectations of being able to do so, the contract is not fraudulent, although the purchaser knows himself ito be insoilvent, and does not disclose it to the seller, who la ignorant of the fact., 31 Ohio St. 162. 774 SALES. [OHAP. The place of demand and delivery. livery to part with the ownership, are sold by the fraudulent buyer to a bona fide purchaser who is ignorant of the fraud, the latter ■will hold them against the original owner.' The issuing of an attachment by the seller against the fraudu- lent purchaser, and levy and sale thereunder of a portion of the goods, together with other goods of the fraudulent purchaser, is a circumstance tending to show a ratification of the fraudulent sale.N^ Where goods are purchased by means of such fraud, on the part of the buyer, as to render the sale void, and are transferred by a general assignment, the seller may replevy the goods from the assignee." Sec. II. Of the place of demand and dblfvert. Contracts made for the delivery of goods at a future period, are sometimes silent in relation to the time and place of delivery; and it often becomes difficult to ascertain, from the contract, whether the purchaser was to call upon the seller and receive tbe articles, or the seller was to transport the articles to the residence of the buyer, or some other place; The following rules upon this subject seem to be settled: If the contract is silent as to the place of delivery, and contains a promise to deliver on demand, the place of business, or residence of the seller, is the place where a delivery should be made ; and a demand by the purchaser is necessary, before a suit can be brought by him on the contract. In such case, the store of the seller, if he is a merchant ; or his shop, if he is a manufacturer or mechanic ; or if he is a farmer, his farm, at which the commodity sold, is de- posited or kept, is the place where the demand and delivery are to be made."* If the contract is silent both as to the time and place of delivery, the same rule as above stated, in relation to demand and place of delivery, holds.' Thus, a person promises to pay another, in farm produce, thirty-five dollars, at market price, without stating time or place ; here a demand is necessary at the debtor's or seller's resi- dence before suit can be brought.' (a) 15 Mass. 156 ; 8 Cow. 81. (d) 2 Kenf s Com. 505 j 2 Bibb, 280; V(b) 22 Ohio St. 388. 16 Mass. 453; 5 "Wend. 1«7. (o) 51 N. Hamp. 577. (e) Chipm. 49. (f ) 6 Cow. 516; 4 Wend. 379. IiXlII.] SALES. 775 The mode and time of demand and tender. Tbe rule in these cases seems to.be founded on the fact that an net (a request to pay) is first to be done by the buyer or creditor ; and hence a tender or delivery may be made at the same place where it is necessary to make the demand. If the contract is silent as to the place of delivery, and contains a promise fixing the day or time of delivery, no demand need be made by the purchaser ; but it may sometimes be difl5cult to ascer- tain where the property should be delivered by the seller. In such case, the nature and use of the article contracted for, and other collateral circumstances, may determine the place of delivery in- tended by the parties.^ If the contract or note is for grain, cattle, salt, hogs, or other portable articles, the place of business or residence of the buyer or creditor, or such other reasonable place as he may designate, is the place where the debtor or seller must deliver the property."" If the articles are not portable, but ponderous and bulky, such as lumber, etc., and no place of delivery can be in- ferred, the seller or debtor must call on the purchaser or creditor, before tlje day mentioned in the contract for delivery, to know where he will receive the articles; and they must be delivered at tbe place designated by him.' If no place, or an unreasonable one be designated by him, the seller may deliver the articles at such place as circumstances show to be suitable and convenient for the purpose intended, and presumptively ip the contemplation of the parties when the contract was made.J It is, in general, the duty of the seller, in such case, to separate the part to be delivered from his own.^ Sec. III. Op the mode and time o¥ day in which a demand AND TENDER SHOULD BE MADE. In case a person is bound to, and does make a demand of the article agreed to be delivered to him, the question often arises whether the demand was made at a reasonable time and place, and within the spirit of the contract and the intention of the parties. If the property is to be delivered to the purchaser at the resi- dence of the seller, the purchaser, by himself or agent, should there (g) 2 Kent's Com. 507 ; see 7 Barb, (i) Co. Lit. 210 ; 6 Cowen, 452. Sup. Ct. 472. (j) 2 Kent's Com. 507; 16 Maine, 4a (h) 4 Wend. 377; Chipm. 25, 26; 1 (k) 6 Cowen, 452. "Wend. 187. t16 SAlEa L^AP. The mode »ad time of demand and tender. go and make the demand;' and if the seller be absent, a demand on his wife will be suflScient.™ If the contract requires the property to be delivered at a certain place, on demand, and that place is not the residence of theseller, il is not necessary for the purchaser to go to the residence of the seller and there make demand; he may make it wherever he con- veniently can, but not at such place, and under such circumstances, as would deprive the seller of an opportunity to deliver the prop- erty at the particular place required by the contract. When both the time and place of delivery are fixed by a de- mand, or by the construction or express terms of the contract, the buyer, by himself or agent, must be there ready to receive the property ;° and if the seller be not there to, deliver it, the buyer may immediately sue him without further demand. Bat it seems if the defendant was not there ready to-dejiver the property, it will be no excuse lor hiffl, to show that the plaintiff was not there ready to receive it." In order to make a tender perfect, it is not necessary that the seller should have an absolute ownership in the property tendered; it will be sufficient if the seller has such conditional ownership that the acceptance of the tender will invest the party to whom the tender is made with a good' title.? l/^ Where the seller agreed to deliver, "between Christmas and .New Tears, 1866, from fifty to one hundred hogs, to weigh from twenty-five to one hundred pounds," it was held that a tender of the hogs on the last day of December, 1866, was good, and that any hogs, of any weight not exceeding one hundred pounds, nor less than twenty-five, were covered by the contract; and that the seller was not bound to notify the buyer, before delivery, of the number he intended to deliver; and if the seller gave such notice, it would not preclude him from tendering a less number, provided there was no fraud, and the notice did not mislead the buyer to his prejudice.p^^ If money is to be paid, or any other act is to be performed on a certain day, and at a certain place, the legal time of performance is the last convenient hour of the day for the transacting of busi- (1) 2 Bibb, 280; Ohipm. 28, 29. (o) 3 Wash. C. C. 140; 7 Conn. 110, (m) 16 Mass. 493. cited in Chitty's Con. 272j (n) 12 Johns. 209. note. \^) 21 Ohio St. 114. txni.] BALKS. 777 Part perEormance. ness. This rale is established for the convenience of both parties, that neither may be compelled unnecessarily to attend during the whole of the day. The custom, however, in certain kinds of busi- ness, and in certain places, may regulate this time. For instance, notes payable at banks must be paid within the usual banking hours. If a person tenders; performance at an inconvenient and unusual hour of the day for the transacting of business, the other party may refuse the tender on that account, and the tender will not be binding. If parties meet at the agreed place, during any part of the day, tender and refusal, thoBgh not at the last convenient hour, is suf- ficient ; for, in this case, neither party is put to inconvenience. If the creditor is not at the place when the debtor arrives with the money or property, the debtor should, in general, be ready, until the last convenient hour of the day for transacting business, to perform the contract on his part.* If the day mentioned in the contract falls on Sunday, the con- tract should be performed on Monday, as if Monday was the day iiamed.'^\__^ Sec. IV. Of the performance of a contract of sale, and THE EFFECT OF A DELIVERY OF A PART OF THE PROP- ERTY. If you agree to deliver me a load of wood, or the like, I am not bound to receive half a load ; or if you- agree to deliver me ten barrels of flour, at a certain time, I am not bound to receive one barrel ; but if I receive the half load of wood, or the barrel of flour, I can not afterward object to receiving the residue, because it was not all delivered to me at the same time. There are some kinds of contracts which, from the custom of trade or the nature of the articles (as a contract for the delivery of two thousand flour- barrels), or from other circumstances, it may be fairly presumed, that the pacties did not contemplate should be performed at one precise time, and the agreement should be construed accordingly. Otherwise, however, a person is not bound to receive a part per- formance, but may refuse it altogether." (q) 3 "Wash. 0. C. 140. falling on Sunday, seo ante, p. Wr) 10 Ohio, 426* As to commercial 721. paper, and the last day of grace (s) 1 CampK 63. 778 BALES. [chap. Part performance. If anagreement is partly performed, by a delivery of a part of the property, and both parties afterward rescind the contract — that is, put an end to it by their acts or agreement — the value of the property delivered, if not before paid for, may be recovered back by sxiit, unless the terms of the rescission indicate a diiferent tin- (]orstt\n(ling between the j)artie8. But the value of the property delivered can not, in general, be recovered back, unless the buyer has done some act or entered into some new agreement by which it clearly appears that the contract upon which there has been a part delivery was afterward put an end to, or its further performance waived or excused.' For, if a person pay money, or deliver prop- erty in part performance of a contract, and afterward neglect or refuse to perform the residue, he can not, in general, recover back the money or property so paid or delivered, but must lose it. Thus, A. agrees to give B. sixty dollars for a horse, and piiya twenty -five dollars in advance, and agrees to pay the residue in ninety days, at which time the horse is to be delivered; now, if A. neglects to pay the residue of the price, he can neither sue on the contract nor recover back the twenty-five dollars." So, where A. agreed to sell and deliver to B., at a certain place and specified time thereafter, a lot of sheep, for a stipulated price per hundred pounds, fifty dollars to be paid in hand and the residue upon the delivery of the property; and B., after payment of the fifty dollars in hand, voluntarily and without excuse, refused further compliance with the stipulations of the contract, and A., not being in default previously, sold the sheep to other persons after the time fixed for the delivery; it was held that such resale did not in itself give A. a right to regard the contract as rescinded by the consent of parties, so as to enable t(J^. to lecover back the sum paid by him on the contract.^'' Indeed, if ^llrailedjo make himself whole by the resale at a fair price, he might sue jli. and recover such damages ae. would rffake up the deficieney.'v/ So, if the articles delivered fall so far short of the quantity bar- gained for as to authorize a rescission of the contract by the pur- cliasor (as on a contract to deliver 23,000 feet, "more or less," of lumber, and a delivery of 16,000 feei only), the purchaser may re- cover damages for the non-delivery of the residue." y And, in Ohio, it is held that, although the buyer retains the part (t) Wright, 373; 4 Pick. 114. See (u) 18 Johns. 359; 7 Cow. 231. post, Chap., p. 857. ^v) 9 Ohio St. 357 ; 27 Id. 548. IXIII.] SALES. 7^9 Part performance. delivered after the sglkr has ^^liled in performing, the latier can not sjifi the l\uyer, and r eco ver the value of the gftods dejiyered. Thus, where, by a contract of sale, the seller agrees to deliver two hundred and fifty bushels of wheat within a specified time, and delivers a part, but not the residue, held, that he can not, after the time mentioned in the contract expired, recover from the pur- chaser the value of the wheat delivered to and retained by himf''(l) But one agreement may contain distinct and separate contracts of sale, so that the sale, delivery, and payment of one lot of goods Efiay in no way be dependent upon the delivery of another, although both are provided for in the same written contract. Thus, whore two separate lots of goods were to be delivered at difiereut times, and negotiable notes to be given for each lot as delivered, and the ' seller delivered the first lot and received a negotiable pote therefor, and failed to deliver the second lot, it was held, as a fair construction of the contract, that the buyer did not intend to retain a lien on eucli negotiable note for a delivery of the second lot, and that the contract as to each lot was distinct and separate; and hence, that a claim for damages for the non-delivery of the second lot cj)uld not be set up as a counter-claim to an action upon the note.^^^ It is a general rule, applicable as well to contracts of sale as to all others, that where two acts are to be done at the same time (as the delivery of goods on one side, and the payment for them on the other), no action can be brought by either party, until he performs, or oflfers to perform, his part of the agreement!y(2) And iu such case, vlw) 16 Ohio, 338. Contra: 17 Eng. C. v(x) 10 Ohio St. 327. L. 401; 11 Id. 256, per Best, Jy) 2 Kent's Com. 465. C.J. (1) As to the damages in such cases, see the next section of this chapter. V (2) "Where the quantity of an article to be delivered was left open by the contract of sale (as " a little more or less " than twenty-flve hundred cnJ)io feet of marble), to be measured by either party, and two dollars " to be paid for each and every foot so delivered," it was held that, upon failure of the seller to make up an account, the buyer was not bound to pay or tender payment therefoi be- fore bringing suit for the non-delivery of the marble; for, in such case, the promise to pay for the marble was conditioned on a previous measureinejit, and making an account thereof by the seller; and consequently, no payment was to be made until the seller had not only delivered the marble, but also measured it,, and stated the account. \gl Ohio St. 324. Contract, in March, to deliver in next October and November 80 to 160 tons of coal, " as the purchaser may wish." October 15th, purchaser notified seller to deliver 160 tons : Held, That the notice should have been given a reasonable time before October 1st. 26 Id. 585. 780 aALES. [CffAP. Bights of parties after tender. rf one offers to perform and the otlier discharges^ him, tb«j fiMmer may have his action, and recover, the same as if he actually per- formed his part.^ So, it is a general mle, that if you engage with A. to do aD act, on the previous performanee of another act by A. 01" other person, no action can be sustained against you by A., un less he shows the previous aet done ; or that its performanee was dispensed with ; or that you, or the jwrson for whom, the act- was to be done, prevented him from doing it, or that he offered to per- form it." Seo. V. Of the effect oi" a tender upon the bights of the BUYER AND SELLER, AND OF THE DAMAGES IN SUCH CASE, AND WHERE NO TENDER IS MADE. The general' rule in relation to the rights of a seller, under a contract of sale, where he has tendered property, and the buyer refuses to receive it, is this : The seller may leave the property at some secure place, at or near where the tender ought to bo and is made, and recover the contract price; or -ho may keep it at the buyer's risk, using reasonable diligence to preserve it, and recover the contract price, and the expense of preserving and keeping^ii^ or he may sell it, and recover from the buyer the difference between the contract price, and the price at which it fairly sold. If he use the property as his own, and if he do not show on the trial, the price at which it was sold by him, he can only recover in an action against the buyer, the difference with interest, between the market price at the time and place of the tender, and the contract price.'' If the seller have the property at the time and place required by the contract, and there be no one there to receive it, he ought to place it in some secure place, and not abandon it, so as to exj)Ose it to destruction." In such case, ho may sell it or keep it for the tuyer,. or use it himself, and he will have the same remedy as if the tender had been refused. The statute of this state provides,* that in any action or suit brought on any writing obligatory, promise, or contract for the payment of any article or thing other than money, or for the per- formance of any work or labor, if the defendant shall answer that (z) 1 T. B. 645 ; Doug. 684. 8 "Wend. 435 ; 2 Kent's Com. (a) 19 Johns. 69. See ante, p. 524. 504; 15 Eng C. L. 131. (b) Kev. Stat., § 5138 ; 25 Ohio St. (o) 4 "Wend. 525. 490 ; 21 Id. 114 ; Wright, 555; (d) Eev. Stat., ? 5138. See post, p. 821. LXIII.] SALES. TSl Kighta of parties after tender. be d'id tender payment or performance of such writing obligatory, promise, or contract, at such time and place, and in such articles, work, or labor, as by such writing obligatory, promise, or contract, he was bound to pay or perform, and if the court or jury shall find that the defendant did tender, aS alleged in his plea, they shall at the same time assess the value of the property or labor so tendered, and thereupon judgment shall be rendered in favor of the plaintiff, for the sum so found, without interest or costs, unless the defendant shall forthwith perform his contract, or give to the plaintiff such assurance as the court may approve, that he will perform the same, within such time as the court may direct, in which ease judgment shall be rendered for the defendant. The statute, it will be perceived, is applicable to cases where the defendant has, at the time and place required by the contract, made a tender of the kind, amount, and quality of property mentioned in the agreement. It could not be considered a tender if the pro])- erty was offered to. the plaintiff after the same was payable, or at a different place from the one which the agreement expressly or con- structively demands, or if the property offered was not the proper kind, quality, value, or amount. But when the tender is complete as to time, place, quality, kind and value or amount, then the jus- tice or jury should ascertain the value or price of the property, at the time and place the property should have been delivered. If one wishes to make his tender complete,, it will be safest for him, even if the other party does not demand, or come after, or intend to take the property, to weigh, count, measure, or otherwise separ- rate the property tendered, from its mass.» If the contract is for the payment of so many dollars in property, then the defendant, in order to render his tender complete, must show that the property tendered was of the value required ; and the judgment mentioned inthe statute wjll of course bu for the value stated in the contract. For instance, I agree to pay you at your house next Monday, fifty dollars in corn, at the market price. If I tender to you the quan- tity at the time and place, and you refuse to receive it, and sue me on the contract, and I prove the tender, the justice will render judgment for fifty dollars, witlwut interest or costs, unless I will forthwith deliver the property, or give such assurance as the justice approves, that I will do so, within saeh time as the justice shall (e) 7 Conn. 110; 2 Fairf. 393. 782 SALES. [chap. Damages for non-performance. direct ; in which case judgment -will be rendered in my favor for the costs. Contracts, however, are not always for the payment of so much money, in property, as in the instance\above mentioned. When the contract is for the delivery of property, for which the purchaser is to pay a specific price ; here, the price si^ecified does not determine its value, but the justice must ascertain the true market value, at the time and place it should have been delivered.^ For instance, I agree to deliver to you at your house next Monday, two hundred bushels of corn, for which you have paid me fifty dollars. Kow, the corn may be worth sixty dollars next Mondaj'^, and it wonld'not be reasonable that I should cheat you out of the difierence, by failing to deliver it. You would be entitled to a judgment for sixty dol- lars, if that was the value of the corn, at the time it was to be de- livered, together with the interest and costs, if no tender was made. But suppose the corn worth only forty dollars on the next Monday, and I tender the corn to you ; it would then be wrong for you to take advantage of the fall in the price, and cheat me out of ten dol- lars. If I proved the tender, the justice would render judgment against me for the forty dollars, without interest or costs, unless I delivered the property forthwith, etc., in compliance with the statute just mentioned. "When the seller neglects or refuses to deliver the article which ho has agreed to sell, and no money has been paid by the buyer, the measure of damages is the difference between the contract price and the market value of the article at the time and place where it should have been delivered, with interest from that time.sv- But if the money has been paid for the article, then the buyer will also be entitled to a judgment, as well for the amount he paid, as tlie difference in the value of the article as above-mentioned, to- gether with interest. As to the damages which may be recovered upon what is com- monly called notes payable in trade, it will be observed that such notes are, in general, for a certain sum of money, payable in wheat, corn, or other articles, and are given for a pre-existing debt. Where, from the terms of a trade note, it appears that the object of the creditor was-not to purchase the articles named in the note, b'lt the stipulation to pay in trade instead of money, was made for (f ) 6 Wheat. 109; but see 8 Cowen, ^s) 21 Ohio St. 114; 9 Wend. 129; 3 82 Wheat. 200; 5 Id. 885. LXIII.] ' SALES. 783 Bemedy for defects in quality and title of property. the benefit of the debtor, the latter has his option to pay in trade or money ; and hence if a note be made for the payment of a cer- tain sum of money in a certain article, although the price of the article be also designated in the" note, yet if the article is not de- livered, the creditor can only. recover the amount in money of the debt designated in the note, with interest. But if the terms of the note be such as to show, constructively or otherwise, that the arti- cles and not the debt was the controlling and principal object, so that the stipulation to pay the articles was made for the benefit of the creditor, and without any intention to give the debtor an elec- tion to pay either money or the articles, then upon failure to de- liver the articles, the creditor will be entitled to recover the market value of the. articles on the day the articles should have been delivered.''^ Sec. VI. Op the remedy for defects in the quality and title OF property. When the buyer of property is deceived in respect to its quality, and there has been an express or implied warranty which covers the defect, he may sue on the contract of warranty. ' If the seller has intentionally and actually deceived the buyer, as to the quality of the goods, either by concealment or misrepresentation, it is a fraud for which the seller is liable, whether there was a warranty or not ; and the buyer may, if he chooses, sue on the contract of warranty, or for such fraud, if there was both a warranty and fraud. If you sell me a horse which you know is foundered, and conceal this from me, and also warrant him sound, you are liable to an action on the warranty, or I may sue you for the deceit and fraud. If I choose to sue you on the warranty, and recover, I can not afterward sue and recover for the fraud. When there has been a special contract as to the quality and price of the goods, if the goods delivered do not correspond with the contract, the vendee may repudiate the goods and return them ; or he may give notice to the vendor to take them back, after he has given them a reasonable trial ; and in such a case the vendor oan not recover on the contract, for he has failed to do that which was the consideration of the vendor's promise to pay, namely, to supply goods corresponding with the stipulation. ^^(h) 5 Ohio St. 180 ; 4 Id. 88. 784 SALBS. {chap. fraud in respect to quality. If the goods suppliied do not correspond •with the contract, and the vbndee retain them, he may, without having given notice of their defect, set up their inferiority as a defense to an action on the con- ti'act; and thereby reduce the vendor's claim to the actual value. And to entitle the plaintiff even to their value under such circum- Btances, he must show some new implied contract, arising from thu defendant's conduct in respect to the goods, as, by using or selling them. 1. Of the fraudulent concealment or misrepresentation of the quality of things sold. — When there is no express or implied warranty, suoh ;as will be hereafter stated, in relation to the quality of property ■purchased, and it is- unsound, or -otherwise defective in quality, the buyer can not sue the seller on that account, unless the deoeptioo complained of was intentional on the part of the seller, and the buyer has been actually deceived, and has sustained damage.* '^ First. The deception complained of must have been intentional on the part of the seller. The seller could not intend to deceive the buyer, if, when he sold the property, he was ignorant of the defect. The plaintiff must therefore satisfy the justice or jury, by positive or circumstantial proof, or from the nature of the defect itself, that the defendant, when he sold the property, knew of the defect; for if neither the seller nor the. buyer knew of the defect at the time of the sale, there is no deception nor fraud, and the seller is in no way responsible, unless there* was an express or im- plied warranty, even though the article be entirely worthless, or of an entirely different quality from that supposed by the purchaser. But in such case, the seller must be innocent, and ignorant of the fraud and defect, at the time of the sale.J Where the evidence tended to show that a cow had been sold by the owner as a breeder, and purchased for a breeder, and to im- prove the purchaser's herd of cattle, and there was at the time of the sale a defect not visible or apparentj which would greatly impair, if not destroy, her capacity to breed, and that this was known to the seller, and not disclosed at the time of the sale, it was held that such evidence was proper to submit to a jury to determine whether the seller was not guilty of fraud in concealing the defect. The latent or secret defect,, however, must, in such case, be a. Bubstao- tial one, materially affecting the value of the article for the pur- ^(\) 13 Ohio St. 502. ( j) a Wend. 185. tXIII.] SALES. 7S5 ' Praud in respect to quality. pose for w.hich the seller proposed to sell it and the buyer proposed to buy it.'' It must also be proved, either by positive or circumstantiflrl «yi. dcnee, in order to make out the fraud : Second. That tto buyer has been actually deceived. If the de- feet complained of was mentioned to the buyer at or before the sale, he was not deceived. If the defect was an open and obv:ous one, such as a man of ordinary care must have seen, the law pre- sumes that it was seen by the buyer, and the seller is not respon- sible. If, however, the defect was open and obvious, and the seller said or did anything whatever with the intention to divert theey«, obscure the observation, or conceal the defect from the buyer, this would prove a knowledge of the defect, an intention to deceive, and it might, in such case, be also fairly presumed that the buyer "was deceived. If A. is present at a sale between B. and C, in which he over- hears B. make a frauduleBt representation as to the quality of the .^oods sold, and A. afterwaird is induced to purchase the goods of C. on account of the representations of B. to C, in such case A. can not sue B. for the deceit. But if at the time of the deceit B. knew that A. intended to pnrcha,8e the goods of C. on the faith of his (B.'s) representation, and the latter made the representation with the intent to deceive both, then A. may have his action against B. for the deceit.V "What has been heretofore said in relation to puffing and the fiilse commendation of articles, is here applicable."" It must also be proved : Third. That the buyer has sustained a damage or loss. W-here the suit is brought upon the warranty, the dari!a.ges are generally Jimitcd lo an estimate of the actual injury to the party. But in a suit for a fraudulent concealment or misrepresentation in respect to the quality of property, the judgment for damages need not be limited to a mere estimate of the defect of the property." Where sljet-p having the dfy-rot were feaudulently represented as sound, (k) 13 Ohio St. 502. be any civil eases in which ex- .(1) IG Ohio St. 67; 2 M. ftW. 518; 4 emplary damages should bo Id. 336. given, it seems to me that they (m) See p. 558. are required in cases of fraud. (n) Contra: Wright, 686. If there 11 Ohio St. 405; 10 Id. 277. 786 BALES. [CHAP. Fraud in respect to quality, etc., and remedy of buyer. and infected the buyer's sheep and injured his pasture, it was held that the buyer was entitled to recover for these special damages." In an action for fraudulent representations as to the soundness of a horse, no damages can be recovered-for the keep of the horse previous to an offer by the plaintiff to return him.P If a horse be sold to be taken by the buyer as he is, sound or unsound, and nothing more appears, the seller is not liable for any unsoundness, though he had knowledge of it at the time of the sale, and did not communicate such knowledge to the buyer. But if it further appear, in such case, that any misrepresentation was used by the seller, he is liable for such misrepresentation. There- fore, where a horse was thus sold, and it appeared that he was then thin in flesh from disease, and had a bunch on his neck, also the effect of the disease, and the seller sold him as he was, sound or unsound, but at the same time falsely represented to the buyer that the horse's want of flesh was caused by a long journey, and the bunch on his neck by his having been bled, it was held that the seller was liable to an action for these false and fraudulent afBr- ::iations.P So; if by false and fraudulent misrepresentations, a party is in- duced to enter into a written agreement, and is thereby damnified, he may sue for the deceit, and give verbal evidence of the represen- tations, although they are not noticed in the written contract.*! Thus, the owner of a public house, made, pending the treaty for its' sale, deceitful representations respecting the amount of business done in the house,"and the rent received for a part of the premises, whereby the plaintiff was induced to give a large sum for the promises ; it was held that the latter could recover damages for the dodeitful representations, although they were not noticed in the convej'^ance of the premises, or in a written memorandum of the bargain, which was drawn up after these representations were made.'' If one be induced to buy an article by fraudulent misrepresen- tations, he may, when he discovers the fraud, immediately rescind the contract, by returning the article, and then recover back, by action, the money paid. But if, after discovering the fraud, the buyer continue to use or deal with the article as his own, he must (o) 21 Ohio St. 655. (r) 10 Eng. C. L. 202 j but see 4 (p) 9 Conn. 107. Taunt. 779. (q) 2 Ld. Kaym. 1118. ixin,] SALES. 787 Different kinds of warranties — Implied warranties. sue for the fraud, and can not tender the article, nor rescind the contract." If there has been an exchange of articles, and boot given by the party defrauded, he may, after tender, sue for the money, and for the article he delivered.' But if he wishes to rescind the contract, he ought not to retain any part of the consideration he received upon the sale or exchange ; and if in the exchange he re- ceived money as hoot, he ought to return not only the defective article, but also the money he received ; for he shall not compel even the fraudulent seller to an action, to recover back the property he has parted with in exchange." A tender and rescission must, in general, be so prompt, as not to, by delay, damage the seller.* y 2. Of the different kinds of warranty. — "Warranties are of two kinds express and implied. Express warranties are those stipula- tions and promises, with regard to the condition or general or particular quality of the articles sold, which the seller makes to the buyer in express terms, at the time of the sale. Implied war- ranties are such as the law says, from the nature of the transaction, were made at the time of the sale, though neither party said any- thing about a warranty. If I have a horse in my possession, and I sell him to you, the law says, from the nature of the transaction, that I warranted the horse to belong to myself, or that I had a right to sell him. But the law will not imply that I warranted the horse to be sound, and therefore a warranty of soundness must be made in express terms. 3. Of implied warranties. — In every sale of goods, or other per- sonal property, if the possession be at the time in another, and there is no express warranty of title, the purjchaser buys at his peril, and can not sue the seller on failure of the title ; unless the seller knew he had no title, in which case he would be liable for the fraud.^ Even if a sheriff or constable sell property which he knows at the time does not belong to the judgment debtor, and says nothing about it at the sale, the officer is responsible to the ]iurcfaaser, who may sue him, and recover back the purchase money, though it has been paid over to the judgment creditor." If the Beller has possession of the article, and he sells it as his own prop- (s) 28 Eng. C. L. 29; 24 Id. 414. (u) 4 Mass. 502. (t) 4 Mass. 502 ; but see 3 Campb. (y) 2 Kent's Com. 478. 299 J Cowp. 818; Doug. 24, (w) 1 Bng. C L. 224. note. . (x) 28 Ohio St. 10. 50 ^ 788 SALES. [chap. Implied warranties. -erty, he is understood to warrant the title, though he says nothing about it; and in such case, if the seller had no title, the purchaser anay recover back the price he paid. An executor or administrator, in making a sale of the property ■of the estate, stands in the same relation to a purchaser, in respect to title, as a sheriff or constable when selling property on an exe- 'Cution.'^ V If you show me a sample of goods, and on the faith of the sam- ple I purchase the goods, here there is an implied warranty that the sample upon which the bargain was made, is a fair specimen •of the goods ; and if it was so in fact, and there was no deception on the part of the seller, the purchaser is bound by the contract, though the goods should turn out not to be good or merchantable, from some secret defect in the sample as well as in the bulk, un- known to both parties at the time of the sale.? If you write to, or request a person to send you an article, and he selects it, there is an implied warranty that the article shall be ■of at least an ordinary merchantable quality. The buyer is not, in such case, bound to take it if not merchantable, but may imme- diately return it,'= or he may sue the seller for not performing his ■contract, if he agreed to provide the article.* But if the property T)e present, though not examined, as, for example, paint in un- opened kegs, and a full price is paid, and it turns out to be of an in- ferior quality, and of little or no value, still there is no implied warranty ; and if the seller was ignorant of the quality of the article, he is not guilty of a fraud, but is entitled to recover full price.* But the article delivered must correspond with the commodity sold in species; for there is, in general, an implied warranty to that •extent, unless the facts or circumstances show that the purchaser took upon himself the risk of determining the kind of species pnr- ■chascd. Therefore, if you call on a merchant and ask for, and pur- chase what you suppose to be a keg of white-lead paint, which is unopened, and it turns out to be ground chalk instead of white load, the merchant is liable in damages, although he was ignorant of the deception ; for the article is not of the kind or species which ^x) 14 Ohio St. 276 ; 12 Id. 530, 526 ; (z) 4 Campb. 22, 144; 2 Kent's Com. 4 Texas, 431 j 8 Mass. 162. 479 ; 2 Pick. 220. arty to be made by a summons, to answer to the counter-claim, or may direct the counter-claim to be stricken out of the answer, and made the subject of a separate action. § 5075. A set-off can only be pleaded in an action founded on contract, and must be a cause of action arising upon contract or ascertained by the decision of the court. § 5076. When it appears that a new party is necessary to a final decision upon the set-off, the court shall permit the new party to be madSy if it also appear that, owing to the insolvency or non-residence of the plaintiff, or other cause, the defendant will be in danger of losing his claim, unless permitted to use it as a set-off. § 5077. When cross-demands have existed between persons un- der such circumstances, that if one had brought an action against the other, a counter-claim or set-off could have been, set up, neither can be deprived of the benefit thereof by the assignment or death of the other, but the two demands must be deemed compensated, 80 far as they equal each other. Some of the above provisions of the code relate to proceedings in equity cases. A justice is confined to the rendering of judg- ments at law, and has in general no equity jurisdiction, and no power to enforce decrees. Only such provisions of the code as are in their nature applicable to proceedings before a justice can be considered as rules to guide him in his proceedings." The above provisions of the code which are deemed inapplicable to proceed- ings before justices are printed in italics. § 5073 is, however, ital- icized, because the subject of that section is expressly provided for by the justices code.*" Sec. II. As to set-off. The justices act provides that a defendant, if required by the plaintiff, shall file a bill of the particulars he may claim as a set- off.'^V The original act was passed after the enactment of the code, and. nowhere alluded to the filing of a bill of particulars of a connter- (a) Kev. Stat., ? 6705. ,^) Rev. Stat., J 6526. (b) See ante, p. 33. I-XIV.] SET-OFF AND COUNTER-CLAIM. 797 Set-off— In what cases allowed. claim. But it is very proper, and for tho reasons heretofore slated.* to include in the bill of particulars of set-off, any counter-claim which the defendant proposes to prove on the trial. Section 5071 of the code, given in the preceding section of this chapter, is mostly inapplicable to proceedings before a justice of the peace. So, the above provisions of sections 5074 and 5076 of the code, so far as they provide for bringing new parties be- fore the court, seem to relate to cases peculiarly within the chan- cery jurisdiction of the court of common pleas, and are probably inapplicable to actions before justices. Those parts of the code which are deemed inapplicable to actions before justices, contained in the preceding section of this chapter, have already been pointed out. A set-off is allowed only where the defendant is sued on a spe- cialty,(l) bill of exchange, promissory note, account, contract, or promise, express or implied. Therefore, if a suit is brought to re-' cover damages for a wrong, or injury, and not for the breach of an express or implied promise, and the defendant has a demand against the plaintiff, he can not set it off in such action. Any debt, contract, book-account, or other demand arising on contract, or ascertained by the decision of the court, against the plaintiff, iand due the defendant, may be set off. If the claim is in judgment, the judgment, and not the original claim, is the proper subject of set-off. «J As, on the one hand, a person can not recover, and the action must in general be dismissed W^ithout prejudice to a new action, if he commences a suit before the debt for which the action is brought is due ; so, on the ojther, a defendant can not set off a claim which has become due after the commencement of the suit against him. (2} If the defendant, after the suit is commenced against him, pro- cure an assignment of a debt against the plaintiff, he can not be al- lowed to bring it in by way of set-off; and it is for the defendant (d) Ante, p. 32. V'(e) 17 Ohio, 160. (1) Specialty is a contract or an instrument under seal. Aa to the filing a bill of particulars of a set-o^ etc., see p. 28, et seq. (2) 3 T. E. 186 ; 8 Johns. Cas. 145; 2B Ver. 684; 1 Foster, 232 ; 2 Harring- ton, 322; 3 Id. 172. 798 SET-OFF AND OOUNTBK-OIiAIM. [CBAP, Set-off— In what cases allowed. to satisfy the justice, either by proof or circumstances, that tne set- off was held by him before the commencement of the suit.' When the suit is by an administrator or executor upon tho claim of the decedent, it is competent to set off any debt, book-account, or other liquidated demand, due from the decedent to the defendant at the time of the decease of the decedent. But in such suit, the defendant can not set off a debt assigned to him after the decease of the decedent ; nor a debt which became due and payable after the decease of the decedent.e V Such demands, though good against the estate, can only look to the general assets for satisfaction. To allow them to be set off might change the course of distribution of the funds belonging to the estate. In general, the set-off must be due from the plaintiff; and the debt due the plaintiff for which the action is brought, and the debt due the defendant for which set-off is claimed, must be between the same persons. Where, however, the action is on a joint debt against principal and surety, a demand due from the plaintiff to the principal may, under the provisions of the code, be set off against the claim of the plaintiff.'' >/ The law in relation to set-off, where the plaintiff has assigned the claim upon which he sues, has already been stated ;' and also the rules of set-off, as between the several parties to negotiable instru- ments.J A debt due tO an executor or administer, in right of the dece- dent's estate, can not be set off against a debt which the executor or administrator owes in his own private right ;^ nor can a debt ■due to an executor or administrator, in his own private right, be set off against a claim on the decedent's estate. Where the plaintiff is the mere agent or trustee of a third per- eon, without any beneficial interest in the cause of action, tho de- fendant may set off a debt due him from such third person ; as if an auctioneer sue me, in his own name, for goods sold to me, I may sot off a debt due to me from his principal who owned the goods.* Where a general agent for the sale of goods, sells and delivers goods in his own name, not disclosing the name of his principal, (f ) 19 Johns. 322. ( j) See p. 783, et seq. -v(g) 6 Ohio, 85. (k) 3 Atk. 691. v(h) 22 Ohio St. 297. (1) 7 Taunt. 243 ; 13 Johns. 9 ; 2 (i) See p. 894, 395. Caine's Cas. 841. IXIV.J SET-OFF AND COTTNTBE-CLAm. TS* Set-off— In what cases allowed. the person contracting with him has a right to consider him, to all intents and purposeSj as the principal ; and though the real princi- pal appear, and bring an action upon the contract, against the pur- chaser of the goods, yet the purchaser may set off any claim he may have against the agent, in answer to the demand of the prin- cipal.™ But if the purchaser knew that he was dealing with an agent, he can not avail himself of a set-off against the agent, in an action by the principal." A. separate debt due to one of the defendants, can not be set off against a joint debt due from all the defendants ; nor can a debt due- to the defendant, and another or others, jointly, be set off against a debt due from the defendant alone ;° unless there was an ag reeme nt between the parties, in relation to their dealings, that such debts might be set off against each other.P^ A debt due to or from part- ners is a joint debt. Where the plaintiff owes a debt to several persons jointly, one of whom owes him, the latter may acquire the right of set-off against the plaintiff, by taking an assignment to- himself alone, of the debt due from the plaintiff, before the plaint- . iff's suit is commenced.V If business be carried on in the name of only one person, who is the ostensible proprietor, and an action be brought in the name of such proprietor and a dormant partner, the defendant may set off a debt due from the ostensible proprietor, if he was ignorant of the partnership at the time he contracted such debt."' If the defendant is sued for his own debt, and he is a surviving partner, or surviving joint creditor, and as such has a claim against the plaintiff,' he may set it off; and, on the other hand, a debt due the plaintiff, as a surviving creditor, may be set off against a debt due from the defendant to the plaintiff in his own right.^y^ Although a joint debt can not, in general, be set off against a separate demand, nor a separate demand against a joint debt, as we have already seen, yet there is, as has before been stated,' a material difference between a joint debt, and a joint and several debt. If the plaintiff sue for a debt due him alone ; and he, with- (m) 7 T. E. 856 ; note a, 355. i,(p) 2 Taunt. 170 ; 19 Ohio St. 361. (n) 2 Oaine's Cas., Err. 341 1 SCranch, ^q) 17 Johns. 830; 19jPhio, 126. 193. (r) 2 Esp. 267 ; 7 T. K. 359. ^ (o) 19 Ohio St. 361, per White, J. ; 3 ^s) 19 Ohio, 126 ; 13 Ohio St. 495. Johns. Ch. 578 ; 5 Cranch, 34 ; (t) See p. 39, note. 34 Ohio St. 381. SOO SET-OFF AND COUNTBE-OLAIM. [CHAP. Counter-claim — In what cases allowed. others, owe the defendant a debt by j£iiit and several bond, note,, or other instrument, the latter may treat the debt as several , and set it off in the action." The set-off must be such a one as, if sued upon, would not be barred by the statute of limitation8.(l) If the set-off does not exceed the claim of the plaintiff, judgment; must be rendered in his favor for the balance and costs. The right of set-off is governed by the state law, where the ac- tion is bi'ought.' V Sec. III. Counter-claim. Where there is a contract between parties, the transaction may assume such a shape that both parties may have causes of action upon it. So, if a wrong or injury has been committed, both parties may have causes of action directly connected with the wrong or injury. So, there may be directly connected with a contract, or promise expressed or implied, a breach of the contract on one side, and a wrong, fraud, or injury done by the other, in the same trans- action. Now, the object of allowing a counter-claim, is to give the party who is sued on the contract, or for the wrong or injury, an opportunity to have whatever is connected with the cause of action or the transaction, and which would entitle him also to sue, to set it up by way of counter-claim, and thus in one action dispose of the whole transaction, and adjust the balance between the parties. Thus,- in a suit to recover the purchase-money of a horse, or other property, the defendant may counter-claim for fraudulent misrep- resentation of quality, or false warranty, or any other cause of action against the plaintiff connected with the sale.' A counter-claim, therefore, is any cause of action the defendant has against the plaintiff, which arose out of the contract or trans- action set forth in the bill of particulars of the plainti ff, as the foundation of his claim, or connected with the subject of his cause -of action. Now, a set-off, we have seen, can only be put in by the defendant when the plaintiff's cause of action is founded upon con- tract ; whereas, a defendant may put in a coufftpr-claira whether the plaintiff's cause of action is founded upon a tort or injury, or upon a contract express or implied. We have seen, also, that the defendant can not set up as a set-off (u) 2 T. E. 32. (v) 7 Ohio St. 75. 'y(w) 31 Ohio St. 168. (1) As to the general operation and effect of this statute, see p. 633. a.xiv.] SET-orp and coitnter-olaim. 801 Proceedings -when either exceeds plaintiff's claim. &nj claim except one founded upon a promise or contract, express •or implied; whereas, a defendant may set up a counter-claim, a,lthougli it is for a tort or wrong, and not founded upon any con- tract whatever, express or implied. The main requisites of a counter-claim are two : 1. That it should have arisen out of the contract or transaction upon which the plaintiflf founds his claim or cause of action, or connected with the subject of his cause of action ; and 2. The counter-claim must t)e a cause of agtion existing against the plaintiff, and in favor of ihe defendant, between whom a several judgment might be had in the action : it must be a cause of action that would entitle the de- fendant to a judgment against the plaintiff in a separate action.'' If, under these rules, the justice overrules the counter-claim, as not coming within the definition here given of a counter-claim, and •the matter set up affords no ground for a set-off, then no testimony •should be received in regard to it ; and the defendant should request the justice to state on his docket that the counter-claim was with- drawn, so that the defendant can afterward bring his action on the counter-claim, without being compelled afterward, when he sues, to prove otherwise than by the docket, that the merits of the counter-claim, as such, was not considered on the previous trial. Sec. IV. Pboceeding when the set-off or counter-claim ex- ceeds THE plaintiff's CLAIM. If the set-off exceed the amount due the plaintiff, the defendant Tvill be entitled to a judgment for the balance, with costs ; and if such balance exceed the jurisdiction of a justice, the defendant may take a judgment to the extent of the jurisdiction ; and, as to the residue of his claim not covered by such judgment in his favor,, he may either remit it altogether, or withhold setting it off, and afterwards recover it by action. ^(1) But this provision of the law, allowing the justice to give the- defendant a judgment to the extent of his jurisdiction, and per- mitting the defendant to afterward sue for the balance of the claim, relates only to such claims as are liquidated demands.(2) (w) 6 Ohio St. 207. of set-o£^ etc., in such case, (x) Eev. Stat., g 6580. See form ante, p. 218. (1) See the form of the judgment, p. 220. (2) A claim of damages for a breach of a contract or promise, the amount of 61 8^, SET-t^F AND OOUNTBE'CLAIM. [CHAP„ FroceedingB wh^n eitlier exceeds plaintiff's claim. If such a, set-off, or a counter-claim, so exceeding the jurisdiction- of the justice, is for unliquidated damages, or for an unliquidated demand, the justice will have no jurisdiction over it, and can not, in any way, act upon it, unless the defendant will remit altogether the residue of the claim, after taking judgment thereon for ao amount not exceeding the jurisdiction of the justice.^ V If, on the other hand, the claim is a liquidated demand, then tha- defendant, after taking judgment thereon for an amount not ex- ceeding the jurisdiction of the justice, may, as to the residue, of hi* liquidated demand, not covered by such judgment, either remit it altogether, or may withhold it, and afterward sue and recover it by action. It will be observed that what has been said in respect of the claim of the plaintiff being a liquidated demand, refers only to claims on which the defendant proposes to take a judgment against the plaintiff for an amount not exceeding the jurisdiction of the justice, and to withhold a balance for a future action. (1) An unliquid- ated demand can not be so divided, because it would involve re- peated trials, and result in judgments inconsistent with each other. ^) 12 Ohio St. 356. tte damages teing uncertain, or not defined or fixed by the terms of the con- tract, but requiring evidence independent of the terms of the contract to ascer- tain its amomit, is not a liquidated demand. But a contract or promise to pay a certain amount of money, or an amount which can be ascertained from the terms of the contract by arithmetical calculation, is a liquidated demand. So, a, judgment for an injury, or a sum agreed upon as damages and compensation for an injury, are liquidated by the amount being ascertained by the court, or by the compromise. An account for goods sold, or work, is a liquidated demand.. 1 Cowp. 56 ; 2 W. Black. 394 ; 13 Wend. 139 ; 6 T. E. 488 ; 4 Johns. CSi. 287 ; 6 Cowp. 613. / (1) The old statute relating to set-off, allowed a set-off of "any debt, con- \j^ tract, book-account, or other liquidated demand." The terms other liquidated I demand was supposed to control and limit the word contract — that is, that a t demand by contract should be a liquidated one. The code is much broader in ! its language and intent. § 5075 " A set-off can only be pleaded in an action \ fomided on contract, and must be a cause of action arising upon contract, or ascertained by a decision of the court." Nearly all contracts upon which causes of action can arise are unliquidated demands and not money contracts. The \ code could not have intended by " contracts " such exceptional contracts onlj j as contain a promise to pay a certain sum of money. The language includes,. and I think was intended to include, as a matter of set-off, every kind of cause I of action, liquidated and unliquidated, which can arise upon contract express or implied. See Swan's PI. & Pr. 264; 8 Wes. L. M. 151. But not a statutory \ penalty. 31 Ohio St. 231. \ V IXV.] 8l«ATS AND DlHl"rs. 8W ProirisimiB in relation t<>. CHAPTER LXV. STRAYS AND DRIFTS. Any person holding land in this state, by deed, title bond, or lease, for three years or more, and being in possession thereof, may take np any strays running at large within the township where such taker-up resides. But no person can be compensated or fees be allowed to a person for taking up any stray animal from the range where such animal usually runs at large, or when the Owner of the stray is known to the taker-up, unless the animal be a stoned horse of one and a half years old or upward, running at large out of the inclosed ground of the owner or keeper of such horse.* The taker-up of a stray must, within three days after taking it up, make an accurate description of the marks, brands, size, color, and supposed age of the stray, and particularly describe any altera- tion in the marks or brands within his knowledge. The taker-up must leave a copy of this description, within the said three days, with the clerk of the township, who must record it and post up a copy thereof on the door of his oflSce, or some other conspicuous place near thereto. The taker-up must also, (if the stray be other kind than hogs or sheep,) transmit a copy of the description of the stray, above mentioned, to the clerk of the court of common pleas of the county, within five days from the time of taking it up, who must enter it on his stray -book. Twenty -five cents must be paid to each of said clerks by the taker-up.* Their record is subject to public inspection at all reasonable times." The person taking up an estray, mast advertise the same in , writing, within five days, at three public places within the lown- ehip where the taker-up resides ; giving an accurate description of (a) Rev. Stat., ? 6627. (c) 12 Ohio St. 621. (b) Eev. Stat., ? 6628. 51 604 STRAYS AND DfilFTS. [CHAP. Advertisement and oath of taker-up. the marks, brands, color, size, and supposed age of such stray ;(1) and if no person shall claim and prove his right to the stray within Iwenty days after such advertisement, the taker-up must go before a justice of the peace within the township, and make oath where and when he found the stray, and that he hath neither trimmed, docked, nor altered the brand or marks of the stray, or suffered the isame to be done ; or, if any such alteration has been made within his knowledge, he must state the same.°(2) If the taker-up neglects either to advertise or make the oath before a justice within the time above directed, he can not after- ward proceed to have the property appraised and sold, or otherwise disposed of, under the statute. For, as the law in relation to strays was made partly for the benefit of the owner of lost property, and ■to enable him to find it, the policy of allowing the taker up who neglects giving the required notice, to recover a compensation for keeping the stray, may be doubted. It would hold out a strong •inducement for persons to try the experiment, whether the owner would be able to find his property, if it was not advertised. It is (believed, therefore, that the better rule to adopt in such cases, is, not to sustain a claim for compensation by the taker-up, where be has failed to give notice or make the oath within the time pre- ^ scribed by law. Upon oath being made by the taker-up, as above mentioned, the (o) Kev. Stat., g 6628. (1) Form of the advertisement of a stray animal. STRAY. Taken up on the day of , 18 — , as a stray, in township, -county, hy the subscriber, who there resides, a [bay'] horse, supposed to be years old, hands high, [a natural pacer. Here state the brands or marks, .if any ; or, if there be none, say, " no marks or brands perceivable."] IDated] , 18—. [Signed,] A. B. (2) Form of the oath of the taker up of a stray, 'The State of Ohio, township, county, ss. A. B., of said township, makes oath and saitb, that on the day of y A. D. 18 — ^1 and upon [his premises, slating the place where the stray was taken ;«p,] in said township, he there found and took up a stray [6ay] horse; and that 'he hath neither trimmed, docked, nor altered the brands or marks of said stray, »nqr suffered the same to be done. [Signed,] A. B. Sworn to and subscribed before me, this day of , a. d. 18 — . 6. H., J. p. of township. CXV.] STEATS AND DRIFTS. 805 Appraisement and its record — Fees of officers. justice must issue an order to two respectable freeholders, or house- Sholders, named therein, commanding them to forthwith view and appraise such stray, (3) and to return to him, upon oath or affirma- tion, their appraisement, with a true and accurate description of stho marks, brands, size, color, and supposed age of the stray.(4') The taker-up must give notice to the appraisers of the order being issued,* which should be done by showing and reading to them the order itself The justice must record the return of the appraisers in his stray-book, together with the name of the taker-up and ap- .praisers. The taker-up must pay to the justice, for his services under the :act, the sum of fifty cents. .And if two or more strays of the same (d) Eev. Stat., § 6629. (3) Form of the order to the appraisers of a stray. ''.Che State of Ohio, township, county, ss. To B. F. and J. S., freeholders [or householders] of said township: Tou are hereby commanded, forthwith, to view and appraise a certain stray horse, taken up by, and in possession of, A. B. of said township, and return to me upon oath or afSrmation, the value thereof, and a true and accurate descrip- ition of the marks, brand;, size, color, and supposed age of said stray. Given under my hand, this day of , in the year . G. H., J. p. of said township. (4) Form of the return of the appraisers to be annexed to the order. In pursuance of the order of G. H., a justice of the peace of townshipy county, we, the undersigned, have viewed a stray horse, taken up by A. B. ■therein mentioned, and we do appraise the same at dollars. The following is a true and accurate description of said stray : Bay color, marked on [etc., or ■say, no marks ;] branded on [efc., or, no brands,] hands high, and believed -to be years old last , etc. [Signed,] E. P. J. S. Sworn to and subscribed before me, this day of , etc. G. H., J. F. of said township. Form of oath to the appraisers. Tou, and each of you, do solemnly swear in the presence of Almighty God,, the searcher of all hearts, that this return contains a just appraisement, and ai ■true and accurate description of the stray therein referred to, as you verily be. Aicrve. 806 STRAYS AND DRIFTS. [OHAP- Strays miming at large without flny settlement. species are taken up by one person at the same time, they must be- included in the same entry ; and in such case the justice and clerk can receive no more fees than is allowed for one of such species.* "Where strays are found running at large without any settlement (5) any person may take them up. The taker-up must forthwitU- go before the nearest justice of the peace, and make the oath abovfr directed in other cases, and that he hath neither trimmed, docked, nor altered the brands or marks thereof If the taker-up be a. freeholder or householder within the county where the justice re-^ sides, then the justice and taker-up must proceed in the same man- ner as has been before directed in other cases; but if it appear to the satisfaction of the justice that the taker-up is not a resident of the county and a freeholder, or a householder, he must require him. to give sufficient security to the justice for the safe-keeping and delivery of such stray.(6) On producing such security, the justice must make a record thereof in his stray -book, and proceed in the same manner as if the stray had been taken up by a freeholder or householder ; but if the taker-up fail or refuse to give such secu- rity, the justice must issue his warrant to any constable of the I (e) Eev. Stat., ? 6630. (5) These are the words of the statute. The statute, no douht, was intended to apply to strays that have wandered into a part of the country that is unin- habited. (6) A bond, in such case, may be taken upon the stray-book in the following, form : Know all men by these presents, that we, J. T., E. P., and J. S., are held and flrmly bound unto G. H., a justice of the peace in and for township, county, in the sum of dollars, for the payment of which we jointly and severally bind ourselves. Sealed with our seals, this day of , in the year . ■ The condition of this obligation is such, that, whereas, the said J. T., on the- day of , A. D. 18 — , took up a stray I'^rse, running at large with- out any settlement, and in the county of ; the said J. T. hath made oath,. as required by law, before said justice, in relation to said stray, and is not a free- holder nor householder in said county. Now, if said J. T. shall safely keep/ and deliver up said stray, agreeably to the provisions of 'the act in such case made and provided, then this obligation to be void ; otherwise to remain in fiilh force in law. J. T.* [seal.] K F. [seal.] J. S. [seal.]. iat-XV.] SIBArS AND DEIPTS. 807 strays running at lairge without any settlement. "Coiinty, to take Jpto his pbarge, or to dejjver the stray to any fi-ee- liolder or householder, who will take charge of ^he saifte.(7) The constable will be authorised to take the stray, under this warrant, from the possession of the taker-up. If he refuses, on -demand, to deliver up the stray, the constable may use force to ob- ■tain possession. If the stray, however, has been placed by the "taker-up in the hands of a freeholder or householder of the town- ■«hip, the constable should take from such freeholder or householder, •a. receipt; and if he will not give one, then the constable should take the stray from him.(8) The justice afterward proceeds in the same manner as if the stray had been taken up within a settlement.' If a person not qualified by the nature of his estate in lands, or by the place where the stray is runnning at large, to take up a sstray, shall, notwithstanding, take up a stray, any freeholder of the township may make complaint to a justice, who must issue his warrant for the removal of such stray from the possession of the taker-up, and for the delivery of the same into the custody of any .resident of the township, having the qualifications mentioned ia (f) Rev. Stat., § 6632. (7) Form of the warrant. 'The State of Ohio, township, county, ss. To any constable of said township, greeting : ' Whereas, one J. T., who is not a freeholder of said county, hath taken up a ^tray horse, [here describe the stray as fully as the jusUee is aMe,'\ which was :running at large without any settlement, and in this state ; and said J. T. being ruled by me, a justice of the peace in and for said township and county (before whom J. T. appeared and made the oath required by law in the premises), to give sufficient security for the safe-keeping and delivery of said stray, agree- _»bly to the provisions of the act in such case made and provided, and hath 'ailed so to do, you are therefore commanded to take into your charge the said stray, or deliver the same to some freeholder or householder residing in said township, who will take charge of the same ;. and for so doing, this shall be your warrant. Given under my hand and seal, this day of , in the year . G. H., J. 1-. [SBAL.] (8) The return of the warrant may be as follows : May 6, K . I executed this writ by taking into my charge the stray within fflamed, [Or say,"] I executed this writ by delivering to A. B., a householder )lor freeholder] of said township, the stray within named, as will appear by hi« srppeipt hereon indorsed, 0. C, Constable. 808 STRAYS AND DRIFTS. [CHAP- Bights and liabilities of the owner. the first paragraph of this title. (9) If no such qualified resident, of the township will receive the stray, and proceed under the stat- ute as a taker-up, the constable may suffer the stray to go at large ;. subject, however, to be taken up by any person legally qualified, at any subsequent time.s The owner or owners of any stray or strays taken up, on prov- ing ownership thereto, before a justice of the township, within four months after the same was taken up, may demand and receive the fitray or strays, with the increase, if any, first paying a reward to- the taker-up for each horse kind, one dollar ; for every head of meat cattle, fifty cents ; every sheep, hog, or goat above six months old, twelve and a half cents, with the legal fees paid by the taker- np, and reasonable charges for keeping such strays ; but if the- taker-up and owner disagree on the sum to be paid for keeping, either party may apply to a justice of the township to nomi- nate three disinterested freeholders, (10) to decide a just allowance for keeping the strays, and forthwith, upon oath or affirmation, cer- (g) Eev. Stat., ? 6631. May 4, 18 . Keoeived of C. C, constable, the stray within named, . which I agree to keep, deliver, etc., as the law in such case provides. A. B. (9) Form of the warrant. The State of Ohio, township, county, ss. To any constable of said township, greeting : Whereas, complaint has been made to me, Q. H., a justice of the peace of said township, by A. B., a freeholder thereof, that J. T., who is not authorized ■ or qualified by law to take up a stray, hath unlawfully taken up a [here deseribf the stray as fully as possible,'] being a stray in said township ; and I, being satis- fled of the truth of the premises, do therefore, in the name of the State of Ohio,- hereby command you to take said stray from the possession of said J. T., and deliver the same into the custody of a resident of the township, who holds land in this State by deed, title-bond, or lease for three years or more, and is in pos- session thereof; and for so doing, this shall be your warrant. Given under my hand and seal, this day of , in the year . G. H., J. p. [SBiL.] (10) Form of nomination of freeholders to estimate the allowance for keeping^ To A. B., 0. D., and E. P., freeholders of township, county : Gentlemen : — ^You are hereby nominated by me to inquire and certify to me^ under oath or affirmation, the allowance which you believe just and reasoIlabl•^' for keeping \here describe the stray or strays^l stray, taken up by A. B, on the.- XXV.] STRAYS AND DRIFTS. 80^ Bights and liabilities of the owner. tify the amotint to such justice.(ll) If the owner fail or refuse to pay the sum adjudged, together with the legal fees, within forty days thereafter, the taker-up may deliver the stray or strays to- any constable of the township, who shall, after giving ten days' notice by advertisement at three of the most public placo in the township of the time and place of sale, sell the same for cash to- the highest bidder, to pay the costs and charges.'* The constable, after deducting one dollar for his own fees, shall pay the remainder to the owner of the strays.'' When the appraised value of any stray or strays of the same- species, taken up, does not exceed seven dollars for the whole number taken up and reported at one time, and no person shall ap- pear within four months after taking up, and prove ownership, the right to the stray or strays shall vest in the taker-up ; but if the valuation shall exceed seven dollars, and no owner appear, the- taker-up shall apply to the justice to whom'the return of the appraise- ment and of the marks, brands, size, color, and supposed age of the- stray or strays, was made for a copy of such return, which copy the justice is required to give from his stray-book, and the taker- up shall forthwith deliver the same to a constable of the township,. who shall immediately advertise such stray or strays for sale at three public places within the township, giving the time and place- of sale, which shall be at least ten days from the time of adver- tising, and which sale shall be made at some public place in said- (h) Eev. Stat., § day of , A. D. 18 — , and claimed by C. D., the parties not being able -to agree as to said allo-wance. G. H., j. p. May 4, 18 . The taker-up or owner, at whose instance the freeholders are nominated^ should give notice to the opposite party, of the inquiry that he may be present. (11) Form of the return by freeholders of an allowance for keeping strays. "We, the undersigned, do hereby certify, under oath, that dollars cents, is a just and reasonable allowance to A. B. for keeping the strays in tha annexed nomination mentioned. [Signed,] A. B. ^,18-. Sworn to and subscribed, this day of , a. d. 18— » CD. E. F. G. H., J. p. This return must be attached to the nomination, the form of which is givem above. 610 STBAT8 iHD DBIFTg. [OHAP. Sale of Btray. township, if of ihe horse kind, but if of any other kind of strays, the same shall be sold at the residence of the taker-up between the hours of ten o'clock a. u. and four o'clock p. m., at which time and place the taker-up shall deliver such stray or strays to the constable, and take his receipt therefor, and transmit the same to the township treasurer.' Where the value of any stray or strays of the same species, taken up as above mentioned, shall be of any sum not exceeding seven dollars for the whole taken up and reported at one time, and no person shall appear within four months after such taking up and prove ownership, the right of such stray or strays shall vest in the taker-up. The constable sells the property to the highest bidder, on a credit of nine months for the residue of the purchase-money, after paying his own fee of one dollar, and the expenses of taking up, posting, and keeping, which expense must be ascertained in the manner before directed. After paying the above fees and expenses, the constable must take from the purchaser, for the residue of the purchase-money, his obligation, with one or more suflS-cient sure- ties,(12) payable to the treasurer of the township or his successor in office, and deliver the same to the treasurer, for the use of the township in which the stray or strays were taken up, taking dupli- cate receipts for the same, one of which the constable must file with the township clerk, together with a certificate stating to whom the property was sold, and the amount for which it was sold.*^ (i) Eev. Stat., § 6634. (k) Eev. Stat., J 6635. (12) The form of the otligation may be thus : Know all men by these presents, that we, J. P., A. B., and C. D., are held and bound unto the treasurer of township, in the county of , Ohio, A. T., and his successors in office, in the sum of , \_here insert double the amouTit to be paid,} for the payment of which we jointly and severally bind ourselves. Sealed with our seals, and dated this day of , a. d. 18 — . The condition of the above obligation is such that, whereas, said J. P. this day purchased at constable's sale a certain stray [horse, taken up by G. H.,] for which a credit is given for the sum, hereafter mentioned. Now, if the said J. P. shall pay to the said treasurer, or his successors in office, the sum of • dollars, nine months from the above date, then the above obligation to be void; otherwise to be and remain in fulLforce in law. [Signed,] J. P., [sE;U>.] A. B., [SEAL.] C. D. fsKAi.] (The sureties must be residents of the township. Id., i 6635.) aXV.] STRATS AND DBIPTS. 811 S^ooeedings, etc. — How taker-up must use, etc. — Effect of using — Stoned horses. The treasurer to whom the bond is given, is authorized to sue ifor, recover, and receive its amount. If, however, the owner of 'the property sold, within two years, claim and prove his right thereto, to the satisfaction of a justice of the peace of the proper township, such justice must issue his order to the treasurer, re- quiring him to assign over the obligation, or any judgment thereon, to the claimant, for his use, or pay over the money, if paid into the treasury on such bond. The treasurer must comply with this order.' If a person taking up a stray sell the same, abuse, or suffer it to he abused, either by working, riding, neglecting to feed, or in any other manner, so that such stray, in consequence thereof, die, or t>e lessened in value ; or take or cause the stray to be taken out of the township more than two days at any one time, or suffer the tetray to escape by his neglect ; or if any person knowingly pur- chase a stray, contrary to the provisions of the statute, the person eo offending is liable to the action of the party injured, or the trus- tees of the township, as the case may be, and upon conviction, must pay the full amount of damages sustained, and the costs of fiuit.™ If the person who takes up a horse, mare, or gelding, in any manner works or uses it, he is debarred from all compensation for keeping such stray.™ The constable, however, who sells the -fitray, has no right to inquire whether the taker-up has forfeited his right to such compensation, or to withhold payment on account of his opinion upon that subject." The question of forfeiture must first be settled by a suit and judgment. If a stoned horse of one and a half years old or upward, is found ' running at large out of the inclosed ground of his owner, or keeper, -any person may take up the horse, and forthwith give notice to the owner or keeper, if known ; and if the owner or keeper does not appear within three days after the notice, "and pay the taker- up two dollars for his trouble, the latter may advertise the horse, and proceed in the same manner as has been above directed in case of stray horses. The taker-up may also, at the expiration of twenty days from the time of advertising, geld, or procure the horse to be ijgelded, at the risk and expense of the owner.p (1) Bev. Stat., g 6636. (o) "Wright, 714. (m) Kev. Stat., § 6637. (p) Bev. Stat, i 6638. S12 STKATS AND DEIPTB. [CHAP> Boats, rafts, etc., adrift. Any person finding either a boat, water-craft, raft, or piece of a- raft, or other valnable property, gone, or going adrift, within thi? -state, or upon any of the waters adjoining thereto, may take it up and secure it.(l) If no person claims and proves his right to it within thirty days thereafter, the taker-up must cause it to ho viewed hy two freeholders, or householders, of the township, who afterward give a description thereof in writing, together with an estimate of its value, and certify the same under their hands. This- certificate must be delivered by the taker up, within five days after it is made out, to some justice of the peace of the township,' who- makes a record of it in his stray-book. If the taker-up is not a freeholder or householder within the county, the justice, if he deem it necessary, may require him to give security, as in case of strays animals taken up by such a person. If the taker-up fails to give se- curity when required, the justice may take the boat or other property" into his own possession, or deliver it to any freeholder of the town- . ship, who must take charge thereof Within fifteen days from tha- time the above-mentioned certificate of the freeholders, or house- holders, is received by the justice, he must transmit twenty-five- cents, (which the taker-up must deposit,) together with said certifi- cate, to the clerk of the court of common pleas. The subsequent proceedings are the same as where stray animals are taken up- except as hereinafter mentioned."' The owner of the boat, etc., or other property, is entitled thereto, on proving his right to the same within the time hereinafter mentioned, and paying to the taker -up- for each flat or keel boat, for each scow or lighter, for each Ken- tucky or Oi-leans boat, and for each skiff, pirogue, canoe, or other- valuable property, such reward or compensation as may be deemed reasonable, at the discretion of the justice, together with legal fees.* If the appraised value of the boat, etc., or other property, does-- not exceed five dollars, it vests in the taker-up, and is his property, unless claimed and" proved by the owner to be his within two months after it was taken up. If its value exceed five dollars, and the owner does not claim and prove his right within said two months, the taker-up must deliver the property to a constable of the township, and take his receipt therefor. The constable must advertise, sell, and pay over the proceeds of the sale, ia the same (q) Kev. Stat., §? 6630, 6640. (s) Eev. Stat., ? 6641. ' (r) Eev. Stat., §J 6640, 6641. (1) As to appointment, powers, and duties of wreckmasters, see Rev. Stat.^ 2 5895. IJXV'.] STRAYS AND DRIFTS. 813' Pees-— New township — Stray-books — Penalties. manner as has been before directed when stray animals arc sold. So the owner may, in like manner, prove and claim from the town- ship treasury, the proceeds of such sale. If, however, the appraised value of any boat or craft, taken up upon the shores of Lake Erie, does not exceed eight dollars, and no person appears and proves his right thereto within the time above mentioned, the property ia the boat or craft vests in the taker-up.' Freeholders and householders who perform any duties in relation to strays, etc., as above mentioned, are entitled to receive the sum of fifty cents for each day actually employed, to be paid by the person taking up a stray, etc." When a new township is set off, within the bounds of which any drift or a stray which ought to be sold, the justice to whom the appraisement of the same was returned, or his successor in office, must furnish a copy of the appraisement to the constable, whose duty it would have been to sell the same, had not the new town ship been set ofi'. The constable who is furnished with such copy, must advertise and sell, in the manner heretofore directed ; and the proceeds, after paying incidental expenses, must be paid into the treasury of the township set off, for the use of such township.^ It is the duty of every justice to keep a book, of sufficient size, for the purpose of recording all strays, the appraisement of which shall be returned to his office. When his office becomes vacant by his term expiring, resigna- tion, or otherwise, he, or his legal representative, must deliver the atray-book to the clerk of the township, who delivers it to the suc- cessor of such justice; and the latter may furnish copies of all ap- praisements, the same as if he had always been in office." If any person neglects to perform any of the duties herein above mentioned and directed by the statute above referred to, or does anything contrary thereto, such person forfeits and must pay a sura not exceeding one hundred dollars, nor less than one dollar, to be recovered by action before any court having cognizance thereof; and is, moreover, liable to the party injured. It is the duty of the township treasurer to sue for, in the name of the trustees of the township, collect and pay over, for the use of the township, all moneys arising by any forfeiture above mentioned.* (t) Eev. Stat., § 6642. (w) Eev. Stat., § 6644. (u) Eev. Stat., § 6647. (x) Eev. Stat., ?§ 6645, 6646. (v) Eev. Stat., § 6643. HIA TENDER AND OFFER. ' [OHAP. Offer to allow judgment to be taken. CHAPTER LXVI. TENDER AND OFFER. •Seo. I. Offer to allow judgment to be taken. II. In what cases, and at what time, a tender mat be uadx WITH EFFECT. III. By WHOM, AND TO WHOM, TENDER MUST BE MADE. IV. In WHAT KIND OF MONET A TENDER SHOULD BE MADE. V. What amount must be tendered. vi. In what cases the money must be actually produced. VII. A tender must be unconditional. VIII. Of the EFFECT OF A TENDER ; AND HEREIN — 1. Its general effect. 2. When the contract is for tlip payment of money, and a tender is made before the commencement of the suit, with forms of docket entries. 8. "When the contract is for the payment of a sum of money cer- tain, and a tender is made after suit is brought, with forms - of docket entries. 4. When the defendant disclaims title to the property. 6. When the suit is on a contract for work and labor, or for the payment of property, with forms of docket entries. Sec. I. Offer to allow judgment to be taken.' The defendant may, at any time before trial, offer in writing to allow judgment to be taken against him for a specified sum ; and the plaintiff may immediately have judgment therefor, with the costs then accrued. If the plaintiff do not accept the offer1)efore the trial, and fail to recover in the action a sum greater than the offer, he can not recover the costs that may accrue after the offer, and such costs must be adjudged against the plaintiff. The offer and failure to accept, can not, however, be given in evidence to * (1) Bev. Stat., § 6581. As to costs, recovery, etc., if the defendant offers on trial in common pleas, or before action, to confess judgment, see Bev. Stat, | 6139 et seq. 1-XVl.] " TENDER AND OFFER. 81&- Offer to allow judgment to he taken. affect the amount of the recovery or the judgment thereon, other- ■wise than as to costs after the offer, as above mentioned." v The amount offered, and refusal to accept it, should he entered on the docket, and the written offer filed with the ju8tice.(l) The offer can not be made in the pleading.'' A written offer, signed by the agent of the defendant as such, and read to the plaintiff in the presence of the defendant by the agent, offering to allow the plaintiff to take a judgment for a speci- fied amount, and delivered to the justice, was held to be an offer in. writing under the statute." \^ If an appeal is taken by the plaintiff, the offer still operates, and if he recovers less than the amount offered, judgment for costs,- which accrued after such offer, will be rendered against him.* U If it is found on trial by the justice or jury that the plaintiff is not entitled to an amount equal to the amount offered by the de- fendant, the plaintiff can have judgment for the amount only so> found by the justice or jury.° t^a) Eev. Stat., § 6581 ; 31 Ohio St. 634. , (d) 15 Ohio St. 511 ; 11 Id. 554. (b) 18 Ohio St. 373. (e) 15 Ohio St. 511 ; 31 Id. 634. v(c) 11 Ohio St. 554. (1) The offer may be in the form following : A. B.-l J). ]■ Before G. H., Jus. Peace, township, county. C.D.J To A. B. : — I hereby offer to allow judgment to be taken in the above action, against me, for the sum of dollars, cents, and costs.(2) C. D. [Date.] The acceptance of the offer may be in the form following : A. B. [etc., giving the title of the action, etc., as in the preceding form.'] To. C. D. : — I accept 'your offer to take judgment in said action, for dol lars, cents, and costs. A. B. [Date.] The affidavit may be in the form following : A. B. [etc., giving the title of the action, etc."] . The State of Ohio, county, ss. A. B? makes oath, and says that on the day of , A. D. 18 — , he de- livered to C. D. a notice, of which the above is a true copy, A. B. Sworn to [etc.] f/(2) Using the word "confess" for "aUow" in the notice, though Improper, will not vitiate. 25 Ohio ^t. 801. ""^ 816 TENDER AND OrFEE. [CHAP. In what cases and when tender may be mad&— rBy and to whom. Seo. II. In what cases, and at what time, a tendee may bb MADE WITH EFPEOT.' Where the promise or contract is for the payment of money, a tender may be made at any time before suit is brought.^ A tender upon a contract for work and labor, must be made at the time and place designated in the contract. If not so done, it •will not be effectual, so as to subject the plaintiff to costs from the •commencement of the suit, nor entitle the defendant tCfais election, whether he will perform the contract or not.s But if no legal tender is made before the commencement of the suit, the defendant •may offer to allow judgment to be taken for a certain amount, and -oosts, as stated in the preceding section. If money is to be paid, or. property delivered, or work is to be done " on " a particular day, a tender of performance before the •day specified, will not, in general, be good, unless accepted." If a party contract to do anything (as to paint a house), on de- mand or on notice, he will be entitled to a reasonable time in which to do the thing, after a demand made or notice given. J If, after the contract is made, it be agreed that the thing shall be delivered and accepted on another day than the one stipulated in the contract, a tender on that day will be good."^ So, if a party to a contract be ready to deliver the thing con- tracted to be delivered, on the day stipulated, and the delivery or a tender thereof on that day be prevented, by any contrivance or .evasion of the other party, it will be equivalent to a tender.^ Sec. III. By whom, and to whom, tender must be made. The tender need not be made by the debtor himself; it is suf- ficient if made by his agent ; and a tender by an agent, at his own risk, of more than the money given to him by his principal, is good for the amount tendered.' A tender to a person authorized by the creditor to receive money for him is sufficient.™ A tender to the attorney who has the claim in his hands for col- lection, is a good tender to the principal."' A tender to one of several partners, or joint creditors, is sufficient."- (f ) See also p. 780, 783. (k) 12 Mass. 277. (g) Bev. Stat., ? 5137. (1) 2 M. & Sel. 86. (h) Eev. Stat., § 5138. (m) 1 Oampb. 477; 1 Eng. C. L. 114. '. (i) 16 Petersd. Ab. 22, 23 ; 12 Mod. (n) 10 Eng. C. L. 271. 421 ; 17 Mass. 247. (o) 8 T. K. 688. ,{j) 12 Mass. 121. liXVi.] TENDEa AND OFFER. 817 In what kind of money a tender should he made. :Seo. IV. In what kind of money a tender should be made. Foreign gold and silver coins are not a legal tender.. Silver dollars of the United States, of 412^ grains standard, are a legal tender for any amount ; silver coins of a less denomination than one dollar are a legal tender in all sums not exceeding ten dollars ; other minor coins are a legal tender for an amount not ■exceeding twenty-five cents.? Trade dollars are not a legal tender. The coins of the United States are a legal tender, when not below their standard weight and limit of tolerance allowed by law, for the single piece ; and, when below that in weight, -are a legal tender at valuation in proportion to their actual weight.(l) United States notes "and demand treasury notes are also, in gen- eral, a legal tender.'' Where, prior to or since the passage of the acts of Con- .grese, making promissory notes of the United States (greenbacks) a. legal tender, a note is given payable in gold, tender must be in gold; and the judgment on such note will be entered payable in coin, for its amount; and coin collected on the judgment by sale of the property for coin, and legal-tender notes for the ■ 'Costs.' If, by law or the terms of the contract, the party to be paid is -entitled to coin, or a Coin is tendered which by the act of Congress is not made a legal tender, or current notes are tendered, other than greenbacks, the tender will be good, unless objected to on that Laccount.* (p) Acts Con., 2 Sess. 45, p. 25; 1 (r) 21 Ohio St. 466 ; 22 Id. 200. Ses3. 46, p. 8; Eev.Stat., U; S., (s) 7 Ohio St. 257; 7 Johns. 476; 3 g 3584 et seq. T. E. 524. (q) Kev. Stat. U. 8. 712; 26 Ohio St. 334. ^__^_^ . ^ _ — . — _ — _ , ^_„^ (1) Kev. Stat. U. S., \ 3514. The standard for both gold and silver coin is such "that one thousand parts must be pure metal, and one hundred alloy. The standard weight of a gold dollar is 25 8-10 grains; quarter eagle, 64 J grains; three-dollar piece, 77 4-10 grains; half eagle, 129 grains; eagle, 258 grains; ■and double eagle, 516 grains. The deviation from this standard allowed by .law is one-half grain in the eagle and double eagle, and one-fourth of a grain in the others. Bev. Stat. U. S., g 3514 et seq. 52 818 TENDEE AND OFPBB. [CHA1»_ Amoont — In what cases the money must he actually produced. Sec. V. What amount must be tendebed. A tender of less than the amount due, is the same as if no tender had been made. If a person tenders more than he ought to pay, it is good; for the other ought to accept so much as is due to bim.* But it seems that such a tender is only good, where it is made in moneys numbered so that the creditor may take what is due to him. Therefore, a tender of a fifty-dollar bill, from which the creditor is- desired to take two dollars, and be refuses to do it, is not good." But where a greater sum is tendered in moneys not numbered than the amount due, and the creditor refuses to receive it on the ground that the amount is not sufficient, or other cause, and not on account of the form of the tender, the tender is good.' In general, if money is to be paid by reason of a contract, the- terms shall be understood and accepted, according to their import where it is to be received — that is, it shall be paid in currency there ; and therefore, if a contract be made in Cincinnati to pay a given sum of money, as £100 at London, the contract must be performed by a tender of £100 English currency," with current rate of ex- change. Sec. YI. In what cases the money must be actually produced. In general, the money should be actjjally p rpdnpf H at the time- of the tender; but it is unnecessary to produce it, if the creditor dispense with such production, or do anything equivalent thereto, and the debtor have the money at the time ready to produce.' Thus, the agent of the defendant met the plaintiff in the street, and told him be had come to settle the business between the defend- ant and him, and that he was desired by the defendant to offer him twenty -five dollars ; the plaintiff said he would not take it ; the agent then said that he would give him the other two dollars out of his own pocket, and run the risk of being repaid. He then pulled out bis pocket-book, and told the plaintiff that if he would go into a neighboring public-house he would pay him ; but the plaintiff said be would not take it. This tender was held to be good, as the plaintiff dispensed with the production of the money.' (t) 5 Oo. 115 ; 2 Stra. 916. (w) 2 B. & A. 801 ; 2 P. Wms. 88, (u) 3 Camph. 70; 6 Taunt. 836; 2 696. Bsp. 710; 16 Eng. C. L. 87. (x) 10 East, 101; 8 T. R. 684; 27 (v) 5 Eng. 0. L. 483 ; 8 T. K. 688. Eng. C. L. 878. (y) 2 M. & Sel. 86; 12 Eng. C. L. 85. I LXVI.] TENDER AND OFFER. 819 Tender must be unconditional — Effect of tender. A demand of more than is due will not excuse an actual tender of what is due. A mere offer to pay, without having the money at the time, ready to produce, is not a tender, although the plaintiff refuse to receive it.'= Sec. VII. A tender must be unconditional. <■ The offer of money must be without any qualification or condi- tion. Therefore, when the defendant tendered a sum of money, and at the same time delivered a certain claim upon the plaintiff, and the plaintiff did not take up the money or paper, but simply said, "You must go to my attorney," the tender was held insufficient." So, a person making a tender, can not insist on a receipt in full of all demands'; but he must i-ely on his tender, and upon proof at the trial,' that no more was due.*" 1330. VIII. Of the effect of a tender. 1. Its general effect. — A tender and refusal does not amount to an absolute discharge of the party making the tender, from all liability on the contract. In the case of a tender of money, it in general only discharges the subsequent interest and costs ; and in the case of goods, it in general only exonerates the party from responsibility for their safe-keeping ; but as long as he continues in possession of the goods, he will be bound to deliver them on demand." If, after a tender, the party to whom the tender is made conclude to accept the amoHnt tendered, he will be entitled to it; and if, on demand of the amount tendered, the party who made the tender, neglect or refuse to pay it, ho destroys the effect of the tender, and stands in no better situation than if no tender had ever been made. A demand of a debt, to do away the effect of a tender, must be by some one authorized to receive the money, and to give the debtor a discharge. Where a tender is made by two debtors who are jointly liable, a subsequent demand of one of them is sufficient. The demand should be personal, by tTie creditor, his agent or attorney, that the defend- ant may have an opportunity of paying in hand the sum demanded ; (z) 17 Eng. C. L. 70; 4 Dall. 325. (b) 12 Mass. 450. (a) 16 Eng. C. L. 87. (c) S Johns. Oa. 259, per Thdmp- SON, J. 62 830 TENDER AND OFFER. [CHAP. Jts effect. therefore, a letter sent by the plaintiff's attorney, demanding tha sum tendered, is not sufficient. 2. Of the effect of a tender, when the contract is for the payment of money, and tender is made before the commencement of the suit. — The amount of money tendered must be brought into court, and depos- ited with the justice ; and the same should be paid over to the plaintiff, who is entitled to it, whether the judgmient be for or against him.'' If the defendant prove a tender of the amount due, or damages sustained, before the suit is commenced, a memorandum of the fact should be made on the docket, and judgment rendered as in other cases against the plaintiff for costs. No interest can be allowed to the plaintiff, after the tender. If the justice find that no tender was made, or that a sufficient sum was not tendered, or that the defendant, after the tender, refused to pay it, then judgment should be rendered accordingly against the defendant for the amount due, and for costs.(l) 3. Where the contract is for the payment of a sum of money certmn, and a tender is made after suit is brought. — Such a tender can only he aaade, by bringing into court the money due, and interest, and the (d) Wright, 336. (l) Form of entry and judgment, where there is a tender before suit is commenced on a contract for the payment of numey. The defendant pleads that he did tender dollars to the plaintiff, on tha — ^^^ day of , A. D. 18 — , the money due on the note, [or contract, or writing .phligatory, or account, or promise, as the case may 6e,] upon which this suit is •brought, hefore the commencement thereof, and brings here into court the ahove amount. Issue taken thereon, trial had, [here name the witness examinrti,] and I do find said plea true, in substance and fact. It is therefore considered by me, that the plaintiff recover of the defendant the said sum of dollars, now bore and tendered, and by me paid over to the plaintiff; and that the de- fendant recover of the plaintiff his costs herein, taxed at. dollars and cents. Execution may issue for the costs of the defendant, and the costs of the plaint- iff may be indorsed on the writ, as in other cases. LXVI.] TiBNDBR AND OFFER. 821 Disclaimer of title — Effect of tender of work or property. costs that havo at that time accrued. Judgment must be rendered discharging the defendant. (2) Where money is paid into court on a claim entitled to interest, the interest must be paid to the time of payment into court, or the plaintiff may proceed in the action for the difference. 4. When the claim is for property, and the defendant disclaims all title thereto. — If the defendant in such action disclaim to make any title or claim to the property in controversy, the justice Avill ren- der judgment for the plaintiff, and make such order as to costs, as he may deem just.»(3; 5. When the suit is on a contract for work and labor, or for fJtepay- n\ent of property. (4) — If a tender of work, labor, or property, be made at the time and place designated by the contract or promise, the value of the labor or property so tendered must bo ascertained, and judgment rendered in favor of the plaintiff for the same, with- out interest or costs, unless the defendant will forthwith perform his contract, or give the plaintiff such assurance as the justice may approve, that he will perform the same within such time as the jus- tice tpay direct; in such case, judgment must be rendered for the defendant. (5) (e) Eev. Stat, g 5346. (2) Form of entry on the docket when the contract is for the payment of a sum of money certain, and tender is made after suit is brought. The defendant brought into court dollars , the amount due the plaintiff, with interest ; and doUara cents, the costs herein. This suit is thereby settled. (3) Form of the docket entry. Jane 1,18 , 2 o'clock P. M.. The parties appeared. The defendant disclaims to make any title or claim to the property for which this action is brought. It is therefore considered by me that the plaintiff recover of the defendant [etc.] (4) As to the effect of a tender of property in case of sale, and the rights, etc., of parties thereafter, see ante, p. 780, et seq. (5) Form of docket entry, where tender has been made upon a contract for work, labor, or property. May 4, 18 ,2 o'clock p. M. The parties appeared. The defendant now here pleads that he did tender to the plaintiff the said work and labor, [or say, the said property, as the case may be,'] at the said time and place designated by the above-mentioned contriiet. Issue taken tbej^eon; and thereupon, at the tinite 822 TENDER AND OFFEE. [CHAP. Effect of tender of work or property. Where judgment is rendered in favor of the plaintiff for tlie value of the property or labor, the statute does not direct that ho shall pay the costs, but that judgment shall ba rendered in his favor for the value of the' property, without interest or costs.' It was, perhaps, the intention of the legislature to make the plaintiff, iu such case, pay the costs. He is, at all events, liable for his owa costs. When the defendant performs, or gives assurance that he will perform the contract, and judgment is entered against the plaintiff for the Costs of the defendant, the costs of the plaintiff may be indorsed on the execution, and collected as in other cases. When there has been a tender, and judgment is rendered against the defendant for the valoe of the p,fflfi£rty, the defendant becomes the owner of the property tendered. In all cases where there has been a good and legal tender of the property, the defendant may claim, as a right, that he shall be per- mitted to perform the contract, and the justice should direct its performance, so far as regards the delivery of the property, in such manner as will be most convenient to the defendant. For instance, if the defendant, in order to make the tender, was compelled to transport the property to any particular place, the justice should compel the plaintiff to take the property at the place where it may be at the time judgment is rendered, or such other reasonable place as the defendant may de8i_gnate. (f) Kev. Stat., § 5138. aforesaid, trial had, W. W., [etc.,] examined as witnesses for the plaintiff [etc.,] and I do-flnd the said plea of the plaintilf true, in substance and in fact; and that the value of said work and labor [or say, Vae said property, as the case may i(!,] is forty dollars. Ij the defendant desire to perform the contract, here add : Thereupon the de- fendant did forthwith perform said contract ; [or say, thereupon the defendant did execute a bond, with B. B. as surety, in the penal sum of two hundred dol- lars, conditioned to perform said contract within one month; or say, conditioned to deliver said property to said A. B., at- , on the day of , x. D. 18 — ; which bond, and the time therein mentioned for the performance of said contract, being approved and directed by me,] it is therefore considered by me that the defendant recover of the plaintiff his costs herein, taxed at dol- lars cents. But if the defendant prefer that judgment should be entered against him for tM '\!alvg of the labor or property, say : Thereupon the defendant, not desiring to^qrjijnn, or to give assurance that he will perform, said contract, it is there- fore considered by me that the plaintiff recover of the de<^endant the said sum of [here insert the assessed value of the property or labor} dollars. LXVir.] TIME — HOW COMPUTED. 823 General rules. CHAPTEE LXVII. TIME— HOW COMPUTED. Sec. I. General kules.(I) 11. As TO MONTHS. HI. As TO TEARS. Sec. I. General rttles. "When a contract is silent as to the time of performance, the law infers an engagement that it shall be executed Tvithin a reasonable time.* What is a reasonable time within which a contract is to be performed, when the contract itself is silent on the subject, is some- times a question of law;* but must often be determined by a view of all the circumstances of the ease," the subject-matter of the con- tract, and the custom of the place or trade with reference to which the contract may have been made.'' In proceedings under the code, and generally where the compu- tation of time in a statute is to be from the date, or from an act done, the day of the date, or of the act, is excluded from the com- putation.^ For instance, if an execution is dated the 7th of March, it will be returnable in thirty days from the time the constable re- ceived the same, and therefore the 7th of March must be excluded from the computation, sind the constable would" have the whole of the 6th day of April in which to execute and return it.' So, the (a) 16 Pick. 131 1 3 Bibb, 105; 15 (o) 3 Sumn. 530. Maine, 40, 350; 20 Id. 67; 2 (d) 4 Ohio, 348. Penn. 63. (e) Eev. Stat., g 4951. (b) 16 Maine, 164; 2 Greenl. 249; 1 (f) Bev. Stat^ g 4951; 6 Cowen, Hawks,--*!- 659. (1 ) As to the time when a promissory note or bill of exchange is due, and how days and months computed on them, see ante, pp. 720, 721. As to the time of day in which money must be paid, or a contract' musi-ba performed, see p. 776, 722. 824 TIME — HOW COtlPUTED. [CHAP. General rules. statute provides, that to perfect an appeal, the undertaking shall bf entered into within ten days from the rendition of the judgment. If the judgment is rendered on the let day of April, the party will have the whole of the 11th day of April to enter into the un- dcrtaking.s In accordance with the rule above stated, where time is to be computed from an act to be done, the day of the act fiom which a iiiture time is to be ascertained, is, in general, to be excluded from the computation.'* This rule, however, may be controlled by the nature and subject-matter of the contract.' Ir general, where a statute directs a public officer to do an oflBeial act regarding the rights and duties of others, in a certain time, without any n pgative words restraining him from doing it after- ward, the naming the time will not be considered as making void the act if done after the time prescribed; or, in other words, the naming the time will be considered as directory to him, and not aa a limitation on his authority .•> So, where a statute requires an act to be done forthwith after a previous. act transpires, it is not, in general, to be construed as re- quiring the act to, be done instantly, but within such reasonable time as will effect the object required for its prompt performance ^ Time, therefore, in such case, depends, in a great degree, on the nature of the thing to be done forthwith, and whether a day or more would, in the given case, frustrate, or tend to frustrate, the policy and object of the statute, in requiring the thing to be done forth- with.i Before the code of 1880 it was held, that where a statute specific- ally required an act to be done within a certain number of days after another act or event, Sunday could not be excluded, although the last day ;" but now, unless otherwise specifically provided, the time within which an act is required by law to be done, shall be computed by excluding the first day and including the last ; and if the last be Sunday, it shall be excluded. " v/tjniformity became very desirable, and this general law effects it. (g) 2 CSiow. 605; I Bel'g. & Eawle, "Wend. 486; 5 Cowen, 269; 4i'l ; 3 Id. 496 ; l5 Ves. Jr. Wright, 733 ; see ante, Chap. 248; 15 Mass. 193. XVIII, sec. 1. (n) 19 Coiln. 870 j 2 Id. 69; 9 N. (k) 4 Ohio St. 693; 12 Id. 530. Eamp. 304 ; 3 Denio, J2 ; 1 (1) Id. lb. ; 20 Ohio, 166. Met. 127; 12 Mass. 403; 8 Id. (m) 7 Ohio St. 199 ; 29 Id. 155. As 453 ; 1 Pick. 485. to sheriflf's advertisement, see (i) 15 Ves. 247, 248. 29 Id. 636. (j) 4 Ohio St. 594; 6 Mass. 230; 6v(n) Kev. Stat., | 4951. Lxvli.] TikE — iaow cokPTiTED. 825 As to Ubhths. In ordinary contracts, and fof the sal§ of jptopetty, if the last day for performance or the delivery of the goods falk, by the terms Of the contract, on Sunday, the party has until Monday to perform it." When a contract is to be performed within a certain time after the date, or day of the date, the day of the date must be ex- cluded. Thus, if, by a contract dated Api-il 1st, a party agrees to do an act ten days after dale, the contract is to be performed on the 11th Of April." The law relating to the time When promissory notes and bills of exchange become due, and the computation of time thereon, and wben the last day falls on Sunday or a holiday, has already been Btated.p SeO. II. As TO MONTHS. In this state, when months are mentioned in a statute, they are perhaps understood to be calendar months, and not lunar months,' of four weeks.' The rule, however, is not settled by the supreme court. It has been decided in If ew York, that fifteen months men- tioned in a statute for the redemption of land, are intended to be calendar months."' When a note is payable one or more months after date, calendar months are supposed to be intended. When months are mentioned in a contract or agreement, they must be considered months of four weeks each, or calendar months, according to the nature of the subject-matter of the agreement, and the intention of the parties, to be gathered from the agree- ment.' No fixed and definite rule can be laid down; though, in general, when the intention of the parties does not appear, either from the general custom in relation to the subject-matter of the contract, or from its terms, the months would, it is believed, be deemed calendar. When a person agrees to work for another one or more months, the custom of the country has fixed the time in- tended. (n) 10 Ohio, 426. See ante, p. 722. 611 ; 7 J. J. Marsh. 202; 3 Id. (o) 4 Oush. 460 ; 33 Maine, 71 ; 16 Id. 638 ; 5 Conn. 357 ; 4 Dall. 143. 181; 1 Met. 127; 4 Greenl. (r) 2 Cow. 518; 2 Campb. 294; 2 298; 4 Scamm. 420. Mass. 170; 4 Id. 460; 2 Mod. (p) See ante, pp. 719, 720, 721. 58; 2 Chitty's Gen. Prao. 148. (q) 2 Mass. 170; 4 Id. 460; 1 Bail, (s) 1 M. & S. Ill ; 7 Eng. C. L. 404. 826 TIME — HOW COMPUTED. [CHAP. As to years. A contract to complete a work by a particular month, as " by the month of May," means that it shall be done before that time.' Sec. III. As to tears. An action was brought upon a policy of insurance for insuring the life of Sir R. H. for one year from the day of date. The policy was dated September 3, 1697, and Sir E. H. died September 3, 1698. The court held that the year did not expire until Septem- ber 3, 1698, was fully expired." A person is considered of age the day before his t went y-s econ d birthd ay.'' ^ The reason given is that the law will not notice the fractions of a day. The year, however, allowed for the renewal of mortgages of jjer- Bonal p roper ty, is, we have seen, to be calculated with exactitude." (t) 3 Penn. 48. v(v) 2 Ld. Eaym. 1096. (u) 1 lid. Kaym. 480. (w) See ante, Chap. LVI., sec. 2. LXVIII.] TRESPASS UP.ON LANDS. 827 Definition — "What amounts to a license to enter upon lands. CIHAPTER LXVIII. TRESPASS UPON LANDS. Sec. I. Definition. II. What amounts to a license to enter upon lands. III. Of the possession necessary to maintain this action. IV. Of the defense, etc. Sec. I. Definition. Trespass is the proper action to recover damages for an illega] entry jipon, or an immediate injury occasioned by force, express or implied, to land, or to anything built, or placed there, with a view of improving it. The term land includes the buildings upon it, as well as the crops, trees, etc. Sec. II. What amounts to a license to enter upon lands. The right to land is exclusive ; and every entry thereon, without the license of the owner, or the license or authority of law, is a trespass.^v This leave from the owner may be either express or im- plied. The first is, where he gives his consent in terms, by ex pressly authorizing a person to enter upon his land, with or without a valuable consideration for the license. The second may arise from the familiar intimacy of one neighbor with another, in conse- quence of which he habitually enters on the plaintiff's land, or into his house, for the purpose of friendly intercourse; or where neigh- bors are in the habit of entering upon- the plaintiff's land to pro- cure water from his spring or well. These, and a great number of other instances, might be enumerated, where it is presumed that the owner of the land assented to the entry." But such licenses, whether express or implied, unless founded upon such a considera- tion as would naake them good contracts, may be revoked at any time by the owner j"" and an entry after notice that the license is revoked, will be a trespass. ^f^») 3 Bl. Com. 209. (b) 10 Johns. 246. 828 THESPASS *rPON LANDS. £CHAP, What amounts to a liceiiB6 to enter upon Is^ds. Where, however, the legislature, in the constitutional exercise of the right to appropriate private property to public use, author- izes an act (such as the condemnation of a right of way for a rail- road company), the necessary consequence of which is to injure the property of another, and at the same time prescribes the mode in which the damages are to be ascertained and paid, and giving the injured party.the right to resort to the same, the person or cor- poration acting under such authority, and within the scope thereof, is not a trespasser or wrong-doer, nor liable to an action of trespass, but must be" proceeded against under the statute remedy." An agreement to purchase land, whether written or by parol, is not, of itself, an express license to the buyer to enter upon it.'' But where the buyer pays interest on the purchase-money, it may be fairly presumed, in the absence of any agreement to the contrary, that the possession of the buyer is by the assent of the seller, es- pecially where the entry has been made with the knowledge of the seller. Neither a license to enter, nor a contract to sell and con- vey land upon the payment of the purchase money, or the per- formance of any other act, will give the buyer a right to cut timber, if the cutting thereof will injure the freehold.* But if such a con- tract be made for wild lands, with a license to enter upon and oc- cupy it, the buyer may improve the land by clearing off the timber, and may sell the timber taken from the land for that purpose." But he will have no right to cut the timber, unless it be for the purpose of improving and enjoying the land.' A lease of improved, land, with the woodland, does not authorize the tenant, in the absence of any clause in the lease to that effect, to cut timber therefrom to sell, nor for any other purpose, except repairing the fences, buildings, and farm implements, and reasona- ble fire-wood ; and not for these purposes against the general custom of the neighborhood.*' A right of way may exist by act and operation of law ; for, if a man grant a piece of ground in the middle of his field, he at the same time tacitly and impliedly g ives a way t o come at it, and the grantee may cross the grantor's land for that purpose without being a trespasser. Where A. conveys a farm to B. and his heirs, and in the deed (o) 8 Ohio St. 590; 4 Id. 685 1 18 (e) Wright, 862, 382. Ohio, 232. (f) 3 Wend. 104. (d) 8 Johns. 35, 831. (g) As to waste, see 2 Ohio St. 181. LXVIil.] TRESPASS TJPON LANDS. " 829 What amounts to a license to enter upon lands. grants to B., for the conjvenietit use of the farm, a right of way over adjacent land owned by A., such right of way becomes appur- tenant, to the farm, and will therefore pass with it to B. and hia heirs and assigns. It is not a mere personal right in B., but ap- pertains to the e state in the farm, and can not be separated from it by assignment or transfer. But if you, not owning afarm, obtain from your neighbor a right of way over his farm, this right is personal merely, and does not become apjjurtenaat to anything, but to your person, and ceases upon your decease, and is not transmissible or inheritable, even though the grant was to you and your heirs.s •/ A constable or other officer, who enters upon land to execute a summons, execution, or the like, is not a trespasser by so doing. So, a creditor may enter upon land, to request the payment of money, or other thing payable there. But a person has no right to enter for the purpose of gleaning in another's field,'' nor for the purpose of taking away his own goods or chattels,' unless sucb property was sold to him by the owner of the land; in which case, a right to go and take the property is incident to the sale.J Where the law gives an officer or other person a license to enter, and he abuses it, he thereby forfeits the license, and is considered a trespasser, even from the time he first entered. Thus, if a per- son enters an inn and wantonly injures property, or behaves with rudeness ; or if a constable or other officer enters with process, and illegally break open doors, or assault, or unauthorizedly turn out of possession any of the family — in each of these cases there is a trespass committed, in like manner as if there had been no right to enter. Where, however, an authority or license to enter, is not given by law, but by one party to another, although the latter abuses it to the injury of the former, and an action will lie against him for the injury, yet he will not be liable as a trespasser."^ If a highway becomes impassable, and a traveler is compelled ^g) 23 Ohio St. 614; Wash, on Ease- sion to do so, is responsihle fol ments, 8. One who is permit- proximate damages. 46 Maina^ ted to pass over a private way 423. for his own convenience, must (h) 1 H. Bl. 51, close the gate, or put up the (i) 6 Johns. 5; 14 Id. 460. bais, so as to leave the prem- (j) 11 East, 366. ises as well secured as ho found (k) 8 Co. 146. thein; aiid for negligent omis^ 830 TRESPASS UPON LANDS. [CHAP. Of the possession necessary to maintain this action, of necessity to go over the land adjoining, the law gives hira li- cense to. do so.'^ If a person places on his land, near mine, a noisome and offensive naisanee,(l) by which my health, or convenience and comfort are annoyed, I may peaceably enter on the owner's soil and abate it,™ and can not be sued therefor in any form of action. Bat I must not commit a breach of the peace in so doing. Sec. III. Op the possession necessary to maintain this action. The plaintiff must, in general, be in actual possession of the laud at the time the injury is done, in order to maintain the action," It is not meant by this, that the plaintiff shall actually have his feet on the land when the trespass is committed; but the possession is evidenced by fencing, cultivating, or otherwise improving and using it, or exercising such- other acts upon or about the same, as the owners of land generally do." The mere payment of taxes, and having a deed of the land, is not, in the absence of any statute on the subject, sufficient evidence of title ;P but actual possession of part of a farm, accompanied with a claim of title to the whole, will constitute a possession of the whole, though a part be altogether unimproved, and not inclosed by any kind of fence.* The plaintiff, in order to show that he claims the whole, may produce his deed, as evidence of the extent of his boundaries and claim. Where land is unimproved and unoccupied, the person having the legal title thereto is deemed in possession, and may sue for a trespass.'' This niay be considered an exception to the general rule. But the plaintiff, in such case, in order to prove his legal title, must show not only a deed, or lease to himself, but a regular chain of conveyances by patent and deeds, duly executed from the United States, down to himself; or possession by himself, and those under w^hom he claims, for twenty-one years. A person is deemed in actual possession of a highway which runs \^(1) 4 Ohio, 427. (o) 4 Johns. 105. (m) 2 Salk. 459; 12 Petersd. Ab. (p) 3 Johns. 888. 795. (q) 1 Caino, 358 ; 12 Johns. 452. (n; 2 Ohio, 105; 12 Johns. 183; 8 (r) 12 Johns. 183. Mass. 411. v(l) The term "nuisance" signiiea anything that causes hurt, inconvenience^ damage, or annoyance. As to suit for obstructing liighway, see 80 Ohio St. 62. As to order of justice to bury a dead body, see liev. Stat., § 14717 ' • tXVIII.] TRESPASS UPON LANDS. • 831 Of the possession necessary to maintain this action. over his lands, £fhd may maintain trespass against another for any use of the road except for traveling, as for cuting timber, digging in the soil, etc. The public acquire the mere right of using the road for traveling, and the purposes incident to traveling, and every other right belongs to the owner, as exclusively as if the highway never existed.' The acquiescence of the owner of land in the use of a way across it as a public road for the period of twenty-one years, is conclusive proof of a dedication thereof to public use as a highway ; but such mere acquiescence for a period less than twenty-one years, is not conclusive proof, but is evidence more or less significant, tending to prove such dedicatien. "Where the intention to dedicate is not clear and unequivocal, a .ury may nevertheless presume a dedication from circumstances in- dicating such intention, coupled with the uninterrupted use by the public, for a much less period of time than twenty-one years.' "Where a road or highway is laid out, and an adjacent owner incloses a portion of the road or highway, not materially interfer- ing with the part used or then required for public travel, such encroachment will not ripen by twenty-one years' possession into a right or title, but will be presumed, in the absence of proof to the Contrary, as an encroachment intended to be exercised only so long as the public authorities permit it."i^Ent acts, such as erecting a permanent building which encroaches upon a portion of a street of a town, or inclosing an entire street or highway, and exercis- ing ownership and adverse possession for more than twenty-one years, will ripen into a title under the statute of limitation8.^^^ Such encroachment upon the public use can not, until they rjpeg into a tjtle. be protected by action. "Whore a highway sixty feet wide had been established, and a bridge twelve feet wide was constructed over a stream crossing the highway, and the adjoining owner con- structed fences from the outward limits of the road, inwardly along the bank of the stream to the bridge, it was held that such fences are, presumptively at least, obstructions to the highway, and, as (s) 1 Burr. 143; 1 Pick. 122; 2 Stra.L(u) 13 Ohio St. 42; 31 Id. 338; 28 Id. 1004; 2 Johns. 357; 6 Mass. 489; 11 Ohio, 414. 457 ; 1 "Wils. 107 ; 6 East, r(v) 8 Ohio, 298 ; 5 Ohio St, 594 ; 13 154. Id. 42. See Eev. Stat., § 863. (t) 11 Ohio St. 274. Change of lines hy re-survey, see 22 Ohio St. 180. 832 TRESPASS UPON LANDS. [OHAP. Of the possession necessary to maintain tbie action. such, the supervisor, after notice to the owner, may remove Ihem, doing no unnecessary damage. (1') V If a tenant is in possession of land, he, and not the landlord, must sue a trespasser.'' k'' But where land is leased, and trees are eut down by a stranger during the term of the- lease, the landlord, though he can not sue for the trespass, may maintain an action fo/ them, before" a 'justice of the peace ;=' for, when the trees were severed from the land, they became the persolial property of the landlord.^ The tenant can sue the landlord himself, if he enters without license." But where a person has entered, and is in pos- session wrongfully and withcujt license, he can not, of course, sue the owner for a trespass, but is himself liable to an action.* A tenant who holds possession after the expiration of his lease, may maintain an action of trespass against a mere wrong-doer; and it will be np defense to the action, that the lease of the plaintiff had expired. Where a tenant wrongfully holds possession after the expiration of his lease, the landlord has no right, it seems, to forcibly turn him or his family out ; for so doing, or for entering the house and throwing out the tenant's furniture, the landlord may be sued in an action of trespass.* But the landlord, in such case, has a right to peaceably take possession," and therefore, if the tenancy be deter- U(w) 4 Ohio, 43.5. (a) 4 Johns. 150. (i) 7 Ohio, 230. (b) 25 Eng. C. L. 398 ; 8 Id. 280; but (y) 7 Eng. 0. L. 272 ; 7 T. R. 13. see 4 Johns. 159, 160; 9 AVeud. (z) 1 Ohio, 252. 201. (c) 7 T. K. 431. Wl) 12 Ohio St. 87. Where an alteration in a street or highway does not im- pair access to the piremises of an adjoining owner, but renders the street or highway less convenient for travel, such adjoining owner, like the public gen- erally, must submit to such general inconvenience, and can claim no damages therefor. 10 Ohio St. 1G3. The adjacent owner, however, has a private right of access to or from the adjacent street or highway ; and when he has made im-s provoments on hi? land with direct reference to the adjoining street or high- way, as established or graded, or with reasonable reference to its prospeciivu improvement and enjoyment by the public, he has a private right of way m passage to or from the street or highway as thus ascertained or establishud ; and an unreasonable change in the street or liigiiway by public authorities, to the injury of such passage or way, or to his improvements, is an invasion of his private property. 7 Ohio St. 459; 14 Id. 523; 16 Id. 163; 34 Id. 328 . This private right extends so far as the reasonable and convenient enjoyment of such improvements requires the use of the adjoining street or highway. Id. lb. I,XVIH.] TRESPASS UPON LANBS. 833 Of the possession necessary to maintain tliia action. tcined, and the tenapt and his family be gone away and the house locked up, no one being in possession, the landlord would be justi- fied in breaking into the house and obtaining possession, even though some articles of furniture remained in the houSe.'^ If a tenant sue his landlord for entering upon the premises after the expiration of the lease, and forcibly turning him out, the land- lord may show, to reduce the damages, that he had given the plaintiff notice to quit, and t"hat the tenant had refused to quit, or to pay rent, and was insolvent.^ The person who has a right to gather the growing crop, or grass, is considered in possession, and may sue for a trespass.' Where the owner or possessor works the land on shares with another, they should both sue for an injury done to the crop.s Where a tenant has assigned all interest in a crop to another, the possession passes to the assignee, who alone can sue a trespasser.* (1) - A verbal lease, (d) 8 Eng. 0. L. 280. (g) 8 Johns. 216. (e) Wright, 672. (h) 9 Johns. 143, (f ) Johns. 108, 143 | 1 Ohio, 252. (1 ) When the termination of a lease is fixed and certain, the tenant is not entitled to the off-growing crops sowed by him during the lease, which ripen after its expiration, but they go to the landlord, or the successor of the tenant, under a new lease; but it is otherwise where the termination of the lease is un- certain, as if it depend upon an event over which the tenant has no control, or upon the decision or will of the landlord. 10 Johns. 860. But where a lease is for a year without any stipulation as to an off-going crop which ripens after the expiration of the lease, a general custom established in the place where the parties reside, and the leased priemises are situate, giving the tenant the right to the away-going crop, annexes such right by way of incident to the contract o£ lease, and the tenant is entitled to tbe crop under and according to the cus- tom. 6 Ohio St. 90 ; Doug. 190. Where the tenant for years, of land cultivated and leased to him by one who has an estate for life only in the land, makes improvements by the erection of barns or other permanent structures for farming purposes, under an agreement with his landlord (the owner for life), that he shall have the privilege of re- m()^■i]lg the improvements, such agreement is not bj^nding upon the person on wliom the estate devolves after the dgath of the owner for life ; and if not re- moved bisigie the death of the latter, they can not-5e removed afterward. ^^1 Ohio St. 482. And, in general, a tenant must remove fixtures put up by him before he quits the possession on the expiration of his lease ; and if not re- moved during the term, they, in general, become the property of the landlord. Id, lb.; 2 Kent, 346; 1 Whar. 91; 6 Cow. 323; Taylor's Land and Ten. 9a 834 TRESPASS UPON LANDS. [cHAP. Of the defense, etc. where possession is taken and work performed under it, is binding on the landlord and tenant.' Sec. IV. Of the defense, etc. It follows, from what has already been slated, that the plaintifl will fail in the action if he was not in possession of the land, either in fact or constructively. The defendant may, in general, show that he himself is the owner of the land, and entitled to the posses- sion as against the plaintiff, and thereby defeat the action. It will be no defense for the defendant to show that he did not intend to commit a trespass. Thus, if a person without authority cut wood on the land of another, the wood will not only remain the property of the owner of the soil, but if the trespasser sell the wood, and the purchaser enter upon the land and carry off the wood, he will be liable to the owner in an action of trespass, although he was ignorant of the original trespass, and paid the full value of the wood to the person who cut it.J Where a trespass is committed, and at the same time goods or chattels, trees, plants, shrubs, etc., are injured or taken by the tres- passer, the. owner may recover, in the action of trespass, as well for the unlawful entry upon the lands as for the value of the property taken, or damages for the amount of the injury done thereto. (1) The payment of a judgment for the value of goods or chattels wrongfully taken and kept by the defendant, vests the ownership of such property in the defendant.'^ But the mere recovery and payment of damages for an injury to goods or chattels does not transfer the ownership of the property to the wrong-doer. Wrong-doers can not, in general, compel contribution from each other for damages paid by any one of them. (i) 1 Ohio, 251 ; Wright, 646; 3 Ohio, ( j) 5 Mass. 241 ; 5 Johns. 348. 295. See ante, p. 548; (k) 6 Johns, 168. ■ (1) The statute punishes with great severity, as a crime, the cutting down ci taking away from another's land, trees, plants, cultivated roots, etc., or removing timher, rails, taubark, hoop-poles, etc. Eev. Stat., H 6880, 6864. . As to surface-streams flowing in a permanent and definite channel : The owner of land .through which they pass, has no right to throw the water back upon an owner above, and has a right to receive it from the owner above sub- LXVIII.] TRESPASS UPON LANDS. 835 Of the defense, etc. If, however, one of several parties vfha have engaged in an act which, at the time it was done, appeared to them innocent and lawful, but which turns out to be an injury to some third person, and one of them pays the damages which such third person sus- tained, the former may maintain a suit for contribution, and ail parties to the transaction may be compelled to pay their just pro- portion respectively of the sum so paid. The rule that wrong- doers can not have redress or contribution against each other, seems, therefore, confined to cases where the party seeking siich contribution must be presumed to have known that he was doing a wrong ; and, in geoeral, trespassers can not but be conscious of wrongdoing.^ Where suit is brought for damages done by trespassing animals,, on account of a defective partition fence, which have been assessed (1) 2 Ohio St. 203. stantially undiminished in quantity, aiid uncorrupted hy the owner ahove in quality. Of course, these rights may be changed hy contracts, or by twenty- one years' use. As to the effect of accretions upom a boundary line, see 26 Oliio St. 40. As to undkrground water and subterranean streams which run or percolate through the ground below the surface, no right to them appurtenant to the land, exists as in' surface streams j and, therefore, if a land-owner digs a well or hole upon his lands for purposes connected with his own land, thereby cut- ting off or diverting underground waters which have always percolated or oozed through his land to the land of an adjoining owner, and there formed the source of a spring and rivulet, or filled a well, no aetion ean be maintained therefor ; and the {wesmoption of grant or prescription arising from lapse of time, has no application to such a case. ; 12 Ohio St. 294. As to surface water : The owners of adjoining lands are entitled to the nat- ural flow of surface water ; and if one impedes by embarkment, or diverts by ditches or drains such water which naturally flows to or from the other's land, an action may be maintained therefor by the latter, without showing any actual damages, and nominal damages may at least be recovered. 22 Ohio St. '247; 16 Id. 334; 10 Id. 159; 26 Penn. 407, 415; 12 La. 501. Continued adverse en- joyment of such embankment, or diversion for twenty-one years after a right of action.accrued, will ripen into a prescriptive right. 22 Ohio St, 247. An action ean not be maintained for a nuisance arising from deepening lue water of a stream for a mill-dam, or corrupting the air or the water of a stream, un- less some material and substantial damage has been sustained. 12 Ohio St. 392 ; 6 Id. 187 ; 5 Ohio, 320. Actions for injuries referred to in this note, can not be brought before a jus- tice of the peace. 53 836 TRESPASS tJPON LANDS. [CHAP Of the defense, etc. by appraisers, their certificate is prima facie evidence of tho amount of damages actually sustained.™ If a wrongful and willful trespasser cut down trees, and make them into staves or hewn timber or the likej or mine ore or coal, the owner may toUow the materials, and reclaim them by an action. If, however, the trespass was an involuntary one, done in good faith (as, if the trespasser mistook the line of his land), then the owner can recover only the value of the trees or of the ore in the mine. If such willful wrong-doer sold the iron made from the ore, or the staves, etc., to one knowing how the seller acquired them, he would obtain no property in them, as against the owner. If, however, the purchase was made without such knowledge, the innocent pur- chaser would be liable to the owner for the value of the trees only, or the value of the ore in the mine. These are given simply as illustrations of a general rule, which is applicable to the rights and remedies of owners of personal property stolen or wrongfully and willfully converted by a wrong-doer, who, after increasing its value by work on it (leather made into shoes, cloth into a coat, or the like), sells to one knowing the wrong or to an innocent purchaser. Of course, there should be an identification of the article, to entitle t!ie owner to it, or its value, in its new improved condition. The reason why a willful wrong-doer is thus severely dealt with is to punish him; but there may be cases where the original article wag of 80 slight a value, compared with accretions made by the wrong- doer, as to justify a verdict in an action, even against a wrong- doer, for less than the increased value of the article. As, for an extreme instance, iron ore converted into watch-springs." ■{^ x/(r) 14 Ohio St. 853 ; 15 Id. 292. (t) Eev. Stat., ?§ 5893, 5894. J9) 25 Ohio St. 11. ^u) Eev. Stat., § 5888. Jv) 27 Ohio St. 517. LXXII.] -WORK AND LABOR. 853 Performance. CHAPTER LXXII. WOEK AND LABOR. Where a person is hired to lahor for a fixed time, (as, for twelve months, at ten dollars per month,) and leaves the service before the end of it, without reasonable cause, and without agreement of the other party, he loses his right to wages for the time he may- have worked."^ A laborer or servant, so hired, may be dismissed by his employer before the expiration of the term, for unreasonable and willful disobedience, or for habitual and gross neglect of his duty; and the employer will not be liable for any part of the wages.'' For, if the law were otherwise, a laborer who is hired for a year, or other fixed period, might, by his own willful misc&nduct, procure his dismissal, and then sue for the time he worked. This would place it in the power of the laborer to benefit, at any time, by his own willful breach of the contract. On the other hand, the employer can not, by his misconduct, compel a laborer to quit him before the expiration of the term of service, or dismiss him, with- out sufSicient cause, and then refuse to pay him.''(l) For, if the employer turn away the laborer before the expiration of the year, without a sufficient cause, he will be liable to pay his wages until , (a) U_Ohio St. 561 ; 1 Wend. 514; 2 Eng. C. L. 190; 3 Id. 339; 1 *■ Pick. 267 ; 12 Eng. 0. L. 239 ; Wend. 514 ; 19 Eng. C. L. 504 ; 6 Vt. 383 ; 7 Greenl. 70, 76; 2 Chit. Con. (3 Am. ed.) 171. Penn. 454. (o) 2 Bast, 145; 4 Campb. 375; 2 (b) 1 Chit. PI. 383 (ed. 1833); 27 Eng. C. L.354. (1) The following case was decided by the supreme court of the State of New York, 8 Co wen, 63: Lantet v. Parks. — Assumpsit for work and labor; tried at the Oneida circuit, October 10, 1826, before Williams, C. J. It appeared at the trial that the plaintiff agreed with the defendant to work for him one year at ten dollars per month. He worked ten months and a half, and then left the employment of the defendant, saying he would work no more for him. This was proved by two witnesses, though one swore the declara- tion was qualified — that he would work no more, etc., till he ascertained whether he could collect his wages. The declaration was made on Saturday, when tha 854 WOEK AND LABOR. [CHAP yerformanoe. the end of the year, even though the wages be payable monthly, or otherwise.* But if there bo a dissolution of the contract by mutual consent, the servant is entitled to wages for the time he served, and at the (d) 18 Bng. C. L. 444 ; 27 Id. 232. plaintifT went away. On Monday, he returned and offered to resume his work; but the defendant said he would employ him no longer. Verdict for the plaintiff subject to the opinion of the court. Curia, per Savage, C. J. In Jennings v. Camp, 13 Johns. 94, the court laid down this proposition : That a party who enters into a contract, and performs part of it, and then, without cause, and without agreement or fault of the party, of his own mere volition, abandons the performance, he can not maintain an action, on an implied assumpsit, for the labor actually performed. Of course, he can not sue on the express contract. The case of McMillan v. Vanderlip, 12 Johns. 165, had been previously decided on the same principle. I^ therefore, in this case, the plaintiff left the service of the defendant, without his agree- ment or fault, he violated his contract; and not having performed, on his part, can claim no payment from the defendant. In the case last cited, performance of the labor stipulated was held a condition precedent. It is supposed that the offer to return should take this case out of the general rule. But if there was a wanton desertion of the defendant's service, without his fault, the plaintiff was guilty of a violation of the contract, and the defend- ant was under no obligation to receive him again. No cause whatever is shown in the case for the plaintiff's conduct. The case proved in Spain «. Arnot, 2 Stark. 256, was a stronger case for the servant than the one before the court. The plaintiff was a yearly servant to the defendant, a farmer, and refused, as dinner was ready, to go with horses about a mile, before he had eaten his dinner, though ordered to go by his mas- ter. On this ground, the master dismissed him immediately, and before the end of the year. Tet, Lord EUenborough held that the servant could not re- Qover ; that the master was warranted in turning him away; that, after a refusal on the part of the servant to perform his work, the master is not bound to keep !liiin on, as a burdensome and useless servant, to the end of the year. He also ibeld the doctrine of this court, in the cases cited, that full performance was a condition precedent. Paxon v. Mansfield, 2 Mass. 147, is also in point for the defense. The defendant is entitled to judgment. t~ The case of Larkin v. Buck, 11 Ohio St. 561, was this: B. agreed to woik for / Ij. on his farm, " for six months certain, at eleven dollars per month," no time f being specified when payment should be made. B. left the service at the ex- piration of the first month, without cause, and against the will of L^ and sued { L. for the month's wages. The court held that the contract was entire, and that I Ii. could jiot recover anything. LXXII.] WORK AND LABOR. 855 Performance. rate agreed on. If there is no specific contract, express or implied, the servant is entitled to recover wages for the time he served. "Where there is an agreement to do and complete a particular piece of work, whether the price therefor be agreed upon or not, the party must fully perform the work before he can recover for his labor. Thus, A. agreed to log up, burn, and clear, fit for sow- ing, ten acres of land, by the 20th of September, for which he was to be paid eight dollars per acre. He cleared a part of the land, and then, without any default of his employer, quit the work, and sued for his labor. It was decided by the court that he could re- cover nothing.^ So, where A. agreed to erect and finish a barn for B., by a particular day, for four hundred dollars, but left it unfin- ished without the consent of B., it was decided that A. could re- cover nothing for what he had done.' So, where the plaintiff had contracted to put in complete repair, for £10, some chandeliers, and returned them partly repaired, it was holden that, as be had not performed his part of the contract, he was not entitled to anything, though the repairs he made were worth £5. So, where under a special contract to build a saw-mill, and fur- nish materials therefor, the workmen, after part performance, abandoned the job, without legal cause, in the absence of jDroof, Bhowing the assent of the employer to such abandonment, or his acceptance of the work unfinished, it was held that there could be no recovery for the amount of work done.Sy' If a mechanic or other person undertake to make a chattel, such as a boat, carriage, table, etc., the party for whom it is made is not bound to lake it, and pay for it, unless it is made according to con- tract; or if there was no express contract, he is not bound to take it unless it is made in a workmanlike manner.(l) Questions of a very embarrassing nature sometimes arise upon contracts for building. (e) 13 Johns. 94; 12 Id. 165. is found to be defectively per- (f ) 2 Mass. 147; 14 Id. 282; and see formed, the contract, and not ante, p. 778 et seq. the benefit to the property as- (g) 6 Ohio St. 505. Where work is sessed for the payment of the done upon a street under a work, constitutes the basis for contract with a special road ascertaining the amount to bo district, and has been accepted recovered. 25 Ohio_^t. 134. by the trustees, but the work (1) See ante, pp. 788, 789. B56 WORK AND LABOR. [OHAP Performance. If there is a special contract, no compensation can be recovered, as we have already seen, unless the contract has been entirely ful- filled. If a builder has undertaken to build a building according to a paiticnlar plan, and for a specified price, and he deviates from that plan, or does not complete the work, or does it imperfectly or nn- skillfally, it seems that he can not recover any part of the stipu- lated compensation ; for he has not brought himself within the terms of the contract.'' But if the employer see the work go on in a difi'erent manner from the terms of the contract, and make no objection, or if such change or alteration be with his assent, the builder may recover.'(l) v^ When the special contract is so entirely abandoned by the con- sent of both parties that it is impossible to trace it, the workman will be permitted to charge for the whole work done, according to its value, as if no contract as to the price had been made; but if not wholly abandoned, the contract will operate so far as it can be traced, and the extra work and alterations only, will be estimated at the usual rate of charging^ (h) 3 Taunt. 52; Story's Bailm. 287; work and labor. 3 T. E. 590, see 7 East, 479; 11 Eng. C. L. 592, note -6; 8 Johns. 892; 9 414; 3 Campb. 451; 2 PhlL Id. 115; 4 Cow. 556; 20 Ohio Ev. 83, note a. St. 361. (1) 4 Taunt. 474; 4 "Wend. 285; 4 (j) 4 "Wend. 285; 3 Eur. C. L. 85; Cow. 564; 7 Pick. 181. In 11 "Wheat. 253; 2 Eng. C. L. such case, the action should 388. not be on the contract, but for ^(1) H. contracted, in writing, to build a house for L, at a certain time, of certain dimensions, and in a certain manner, on L.'s land ; and afterward built the house within the time, of the dimensions agreed on, but in workmanship and materials varying from the contract. L. was present almost every day during the building, and had an opportunity of seeing all the materials and lar bor ; and objected at times to parts of the materials and work, but continued to give directions about the house, and ordered some variations from the con- tract. He expressed himself satisfied with parts of the work, from time to time, though professing to be no judge of it. Soon after the house was done, ho refused to accept it ; but H. had no knowledge that he intended to refuse it, until after it was finished. It was held by the court that H. might maintain an action for his labor and the materials ; and that the rule for estimating their value was to deduct so much from the contract price of the house, as the house was worth less, on account of the variations from the contract in regard to work, materials, etc. 7 Pick. 181 ; and see 20 Ohio, 361 ; 26 Ohio St. 101. 1XXII.J WORK AND LABOR. 857 Extra work — Compensation. A recovery may be had for the value of the work, when a special contract has been waived, or put an end to, by the agreement of the parties ; or where the plaintiff has been prevented by the de- fendant from doing the work.^ Where one of the parties to a contract claims its rescission (thai is, to put an end to its obligations) on account of a default in the performance of its stipulations by the other, good faith requires that he should give notice of his claim or purpose to rescind when- ever his failure to do so would reasonably lead the defaulting party to incur trouble or expense in further performance of the contract. If he willfully induce such further performance by his silence or acquiescence, when he ought in fairness to speak or act, he will be regarded as waiving such default, or as electing not to rescind for that cause; and will not afterward be permitted on account of a de- fault thus waived, to exercise the rights incident to a rescission, but his remedy, if any, will be for damages for the default.' ^ Where a workman is employed to do a particular job, and he chooses to perform some additional work without consulting his employer, he can not recover for such additional work."" And in case of a building contract, where the contract is departed from, the employer is not liable for additional work merely from the fact of his having been made aware of the departure without dissent- ing, unless he were also aware (by express notice, or from neces- sary inference) that the departure would occasion additional ex- pense." Though there be an agreement that a specific sum shall be paid for the performance of any work, the claim may be reduced by showing that the work or materials were of an insu£Scient and inferior description and value; and the demand may be altogether defeated, by showing that the work is totally inadequate to answer the purpose for which it was undertaken to be performed." But if the employer has accepted and paid for the work, he can not re- cover th« money back,? notwithstanding that the workman may be liable to an action on the contract for not performing the work in a proper manner. (k) Wriglit, 705; 5 Ohio, 362. (o) Kev. Stat., 25072; Chitty's Con. . (1) 16 Ohio St. 321. 168 ; 14 Johns. 877 ; 1 Campb (m) Story's Bailm.287, 288; 20Eng. 88, 191. C. L. 246; 1 MoCord, 22. (p) Wright, 591 (n) Chitty's Con. (8 Am. ed.) 168, notef. 858 WORK ANB LABOK. [CHAP. Compensation. Where the contract is put an end to by the defendant, when part performed, the plaintiff may recover the actual loss sustained; and as to the work done, the contract price will be prima facie onlj tlie rule of recovery therefor.' v Where there is a special contract fixing the price of the work, in general, that price, and not the value of the work, fixes the amount of the recovery; and the measure of damages for the breach of a contract is, as a general rule, the loss which has been sustained thereby. Thus, the plaintiff entered into a written contract with the defendants to make certain excavations for them on a section of railroad-bed, at eleven cents per cubic yard. The plaintiff did the least expensive part of the work, and received payment accord- ing to the contract price ; but it was really worth twenty cents per Qubic yard, and the balance of the work, if done, would cost the plaintiff about forty cents per cubic yard. Before the plaintiff finished the job, the defendants terminated the contract, and em- ployed others to finish the work. The plaintiff then brought hia action for work and labor, to recover twenty cents per cubic yard for the work done. The court held that the contract price was the measure of compensation as to the work done, and that the value of the work done could not be a subject of inquiry; and in respect to the breach of the contract by the defendants terminating the contract, the plaintiff could recover only such damages as he suf- fered by not being permitted to perform the contract at eleven cents per cubic yard.''*' If one employ another to do work, and nothing is said about the compensation, the law implies a promise to pay the usual wages, at the time and place of performance for the like services; and the price can not be enhanced by showing that the services were beneficial to the employer in an extraordinary degree." If the testimony be conflicting as to the price agreed upon for work, it is proper to show the value of such work at the time the contract was made, as tending to show what was the agreed price.' Where the laborer has failed to perform fully his contract, and consequently can not maintain an action thereon, and his employer sues him for damages, the defendant can not set off a com- pensation for what he has done against such claim for damages. Thus, A. was employed to saw, by a given time, 300,000 feet of ^r) 12 Ohio St. 360. (t) 22 Ohio St. 188. (s) Wright, 242, 704. LXXII.] ■WORK AND LABOR. 859 Compenaation. boards, at a stipulated price per 1,000 feet. He sawed 144,000 feet, which were received by his employer, and failed to saw the residue. Suit was brought against him for a breach of the con- tract, and it was held that he could neither be allowed, as a set-off, a compensation for the quantity sawed, nor recover a compensation for his labor, having failed to perform his agreement."'''(l) v 35. agreed to cultivate A.'s land, find part of the seed, harvest the crop, and then take one-half of it as a compensation for his labor, and deposit the other half ,in such place as A. should direct. B. cultivated the land; but belbre the crop was harvested, absconded, being insolvent. It was hold that B. had not such an interest in the crop as rendered it liable to seizure for his debts ; but that A. had a right to harvest and take the whole crop, as B. had aban- doned the contract.' An executory contract for personal services, to be paid for as per- formed (as, for instance, monthly), can not be assigned by the em- ployer, unless the employe assents to the substitution; and it seems, if the employe continued after the assignment to work a part of the time for the assignee, and was paid by him, this does not show such assent and substitution.'^ In mechanical and manufacturing business, ten hours is an im- plied day's work in the absence of any express agreement as to time.^ ^\x) Ifi. Ohio, 838; 4 Wend. 604; and (v) 10 Pick. 205. See ante, p. 548. see I Mason, 93, cited in Coxe's y(w) 31 Ohio St. 421. Dig. 615. (x) Eev. Stat., g 4365. t- (1) The reader may suppose that the rule here laid down conflicts with that which is found on page 777. There, however, the property delivered belonged to the seller; but the case here is one where the employer oould not redeliver the articles without parting with his own property . PART III. CRIMINAL CAUSES. LXXni.] PEOCEEDINGS IN CRIMINAL CAtTSES. 863 Jurisdiction in criminal cases. CHAPTER LXXIII. PROCEEDINGS IN CRIMmAL CAUSES. Sec. I. Jurisdiction in criminal cases. II. Arrest without warrant. III. Application tor a common state warrant, and the affi- davit and docket entry. IV. Security and judgment for costs, V. Issuing and form of common state warrants. VI. Of the service and return of the warrant. VII. SUBPENA FOR WITNESSES. VIII. Adjournment op the trial of the complaint, with forms. IX. The examination or trial, recognizance, mittimus, docket entries, etc. X. Search warrant;, the affidavit, writ, service, Eia, WITH forms. XI. Proceedings for offenses committed in another state. XII. The proceedings, with forms on complaint to keep thb peace. XIII. Disturbances and affrays in presence of the justice. XIV. Qui tam actions and suits for fines and penalties. XV. liEPORT OP fines, AND PENALTY FOR NEGLECT. XVI. Criminal docket. Sec. I. Jurisdiction in criminal cases. Every justice of the peace is a conservator of the peace, and has jurisdiction in criminal cases throughout the county in which he is clfi'tcd and wliere he resides, on view, or on sworn warrant, to taiiso i.vcry person charged with the commission of a felony or niisdemeunor to be arrested and brought before him or some other ju'atico, to inquire into the complaint, and either discharge or recog- nize to appear before the proper court, or otherwise dispose of the comphiint, as provided by law. He may hear complaints of the peace and issue search warrants.^ (y) Eev. Stat., § 610. 864 PROCEEDINGS IN CRIMINAL CAUSES. [CHAP. Jurisdiction in criminal actions. Fines, forfeitures, and penalties, under by-laws and ordinances of municipal corporations, may, in all cases, and in addition to any other mode provided, be recovered by a suit before a justice or other competent authority in the name of the municipal corporation.' On the other hand, mayors of municipal corporations, in general exercise the like criminal jurisdiction as justices of the peace." A justice of the peace of a township in which a hamlet or any part of it may be situated, or the president of the board of trustees of such hamlet, has jurisdiction in any prosecution for the violation of any ordinance of the corporation, to hear and finally determiue the same, and impose the prescribed punishment, unless imprison- ment is a part of the prescribed punishment; in which case the justice or president may try the case and inflict the punishment if the accused before the commencement of the trial subscribes and files in the case a waiver of a jury.'' If such waiver is not filed, the accused must be discharged, recognized, or committed as in other like cases." In a village corporation a justice of the peace may be appointed, on the recommendation of the mayor and approval of all the coun- cil, police judge, and may exercise aU the powers of mayor of a village during the term of oflSce of a mayor in his absence, or by reason of his disability, or disability to hold court. The justice will be officially designated as " police judge," signing all process and records by that title, and be provided with a seal by the coun- cil to authenticate his process, etc.* So, in cities of the first class, the mayor, during the absence, in- ability, or disability of the judge of the police court, may select a justice of the peace of the city, officially known as " acting police judge," and as such sign all process and records during the time he shall serve, and perform all other acts pertaining to the office. When so selected, the justice is paid for the time occupied in the same manner and at the same rate as the police judge.° A trial and sentence to imprisonment by a magistrate of a person charged with a violation of an ordinance, or for a misdemeanor, are illegal where there is no plea of guilty, no means of a trial by (z) Bev. Stat., 2 1864. As to bill of (b) Rev. Stat., ?§ 1833, 1834. particulars in such suit, see (c) Eev. Stat., § 1835. Id. lb. (d) Eev. Stat , ?? 1831, 1832, which de- (a) Eev. Stat., §§ 7131, 1822, 1830, scribe the seal. 1817 et seq., 1824 et seq. (e) Eev. Stat., §| 1802, 1803. liXXIII.] PROCEEDINGS IN CRIMINAL CAUSES. 865 Arrest without warrant. " jury provided, and no waiver of a jury before the commencement of the trial.^ The legislature, however, may provide for trial by jury and punishment of persons guilty of petit larceny and other misdemeanors without indictment by a grand jury.s Sec. II. Arrest without warrant. It is by express law made the duty of every sheriff, deputy sher- iff, constable, marshal or deputy marshal, watchman or police officer, to arrest and detai n any persons found violating any law of this state, or any legal ordinance of any city or incorporated village, until a legal warrant can be obtained.'' When a felony has been committed, any person may, without warrant, arrest another who he believes, and has reasonable cause to believe, is guilty of the offense, and may detain him until a legal warrant can be obtained.' Where an officer finds a person in the act of committing such offense, it is not necessary to the lawfulness of the attempt to ar- rest him, to first inform him of the charge upon which the at- tempted arrest is to be made, where the officer and the cause of the arrest are known to the offender ; and in such case, the officer may use the necessary force to make the arrest, or to defend himself from the attack of the offender, although in doing, so, the offender is killed.J \/ If, however, the official character of the officer is not known to the offender, or the charge upon which it is proposed to arrest him is not known by the offender, then the officer should, before taking the offender into custody, make known to him his official character and the nature of the offense.^ v If no offense has in fact been committed, and a private individ- ual arrests without warrant, such arrest is illegal, though a consta- ble or other officer would even in such case be justified in making the arrest without warrant, provided he acted on information from another which he had reason to rely upon.' The mere suspi- cion, however, of the officer, without a warrant, and without any (i) 12 Ohio St. 124. \^i) 19 Ohio St. 248. (g) Const., art. 1, sec. 10; 29 Ohio St. (k) Chitty's Grim. Law, 15; 4 Wend. 226 ; 32 Id. 24; 4 Id. 161. 353; Doug. 359 ; 4 Black. Com., (h) Eev. Stat., ni29. note (14); 3 Eng. C. L. 163, ( i) Kev. Stat., § 7130. note ; 3 Camp. 420 ; 6 T. K. 315. 866 PROCEEDINGS IN CRIMINAL CAUSES. [CHAP. Arrest •without warrant. direct charge being made by a citizen, and where no offense wan in fact committed, will not justify the officer in arresting an inno- cent person.' The mere act of arresting without a warrant, when there is a di- rect charge made to the officer by a citizen, or reasonable suspicion before his cj'es, does not oblige him to continue the detention of the prisoner till brought before the magistrate. The charge ra.^y be retracted, or his suspicions may vanish in the way; and as these, in such case, are the only grounds of the arrest so the absence of them is a sufficient reason for the release of the pris- oner. His duty is merely that of an honest and zealous and faith- ful servant of the law. Where, however, the plaintiff being drunk and disorderly in a public place, the defendant, a police officer, arrested him without a warrant, as directed by a statute for such case provided, and which also directed that the offender be taken before a magistrate, and the defendant kept the plaintiff in custody for an hour, and then discharged him without taking him before a magistrate, it was held that the defendant was liable for an assault and false im- prisonment ;™ for tlie officer should not have detained the accused if he did not intend to take him before the magistrate. Any affray or assault is a disturbance of the public peace which justifies an arrest. A constable or police officer may enter a house the door of which is unfastened, in which there is a noise amounting to a breach of the public peace, and to arrest any person disturbing the peace there in his presence." These principles of law are established for the purpose of pre- venting the escape of criminals ; the very small evil of a tempo- rary arrest, in case of innocence, being infinitely compensated by the advantage to the public peace and security in having crimes promptly iDreventcd, and criminals instantly restrained. When an offender is not likely to abscond before a warrant can be obtained, it is, in general, better to apprehend him by a war- rant than for a private person or officer to arrest hira of his own accord. When it is certain that an offense, punishable by imprisonment in the penitentiary, has been committed, or that a dangerous wound (1) 3 Eng. C. L. 163, note. (n) 108 Mass. 426. (m) 108 Mass. 116. LXXIII.] PRO0EED[NGS IN CRIMINAL CAtTSES. 867 Common state warrant, affidavit, and docket entry. has been given, and the offender being pursued, takes refuge in his own house, either a private person or an officer may, without any warrant, break open the doors after demand of admittance. Sko. III. Application for a common state warrant, and the af- fidavit AND DOCKET ENTRY. Justices, mayors, and police judges may issue process against any person charged with a criminal offense, examine into the charge, and require the accused to enter into a recognizance with security, or in default of bail, to be committed to the jail of the county to answer for the offense." In general, the application for process is made to a magistrate of the county in which the offense is alleged to have been committed, and where the accused is sup- posed to remain ; if, however, a person charged with an offense ab- sconds or removes to another county, any magistrate of the county in which such person maybe found, is authorized to issue a warrant for the arrest and removal of such person to the county in which the offense was committed, to be there delivered to any magistrate of the county, to be dealt with as in other cases.? To authorize issuing a warrant for the arrest of a person accused of a criminal offense, a complaint in writing and upon oath, signed by the complainant, must bo filed with the magistrate."! The form of this complaint is prescribed by statute as follows :' Form of affidavit whereon to issue a state warrant. State of Ohio, county, ss. Before me, G. H., personally came A. B., who being duly sworn according to law, deposes and says that on or about the day of , 18 — , at the county of , \liere describe the crime or of- fense committed, in the words of the statute defining the offense, and as nearly according to the facts as the case will admit.'] [Signed,] A. B. Sworn to and subscribed before me, this day of , A. d. 18-. &• H., Justice of the Peace. (o) Eev. Stat., |? 610, 7131. (q) Rev. 8ta.t., ? 7133. (p) Key. Stat., H 7130, 7131, 7140. (r) Key. Stat, § 7134. 55 868 PROCEEDINGS IN CRIMINAL CAUSES. [CHAP. Security and judgment for costs. For form of aflSdavit for selling intoxicating liquors, see Rqv. Stat., § 7135. Upon receiving the affidavit, the magistrate will enter the case on his docket. Form of docket entry on complaint for state warrant. The State of Ohio v. C. D. No. — . October 22, 18 — . Complaint in writing, upon oafh, and signed by A. B., filed with me, charging that A. B., on or about the day of , at the county of , [here describe the crime or offense, as in the complaint."] The next step for the magistrate is to determine whether he will issue the warrant with or without security for costs. Sec. IV. Security and judgment for costs. When the offense charged is a misdemeanor — that is, any offenso of a lower grade than such as are punished by death or imprison- ment in the penitentiary — the magistrate, before issuing the warrant, may, at his discretion, require the complainant to acknowledge him- self responsible for costs ill case the complaint shall be dismissed. This acknowledgment must be entered on the docket.^ It may be in the following form, and should be entered on the docket after the statement of the complaint :' Docket entry of complainant's responsibility for costs. Thereupon I required the complainant to acknowledge himself responsible for costs, who then signed the following : I acknowledge myself responsible for costs in case the above complaint shall be dismissed. [Signed,] A. B. Signed and acknowledged before me, this day of , 18 — . G. H., J. p. In case the magistrate shall consider the complainant wholly irresponsible, he may refuse to issue any warrant unless the con)- pjainant procure some responsible security, to the satisfaction of tli 1 magistrate, for the costs, in case of dismissal. The acknowledgment of such security is taken and entered on the docket.' (s) Kev. Stat., § 7136. LXXIII.] PROCEEDINGS IN CRIMINAL CAUSES. 869 Issuing and form of common state warrant. Form of docket entry whSn security for costs is taken. - I consider the complainant wholly irresponsible for costs, and required him to procure some responsible security therefor. There- upon E. F, was accepted as satisfactory security, and entered into {he following acknowledgment : I acknowledge myself security and responsible for the costs in case the above complaint shall be dismissed. [Signed,] E. F., Taken and acknowledged before, me, this day of , A. d. 18—. G. R., J. P. On dismissal, the magistrate may, if, in his opinion, the complaint v.'as without probable cause, enter a judgment for the costs against the complainant or the person acknowledging himself security for costs. Form of judgment against complainant or security for costs. First enter the dismissal of the case, thus: On hearing the testi- mony, I dismissed this complaint and discharged the defendant. ]n my opinion, the complaint was without probable cause; it is therefore considered by me, that the said [here insert the name of the person or persons liable for the costs^ pay the costs herein, taxed at dollars cents; and judgment therefor is hereby rendered against him. f3EC. Y. Issuing and form of common state warrant. Upon the complaint being filed, if no security for costs is re- quired by the magistrate, or being required, security is given, it ia his duty to issue a warrant for the arrest of the accused, if he shall have i-easonable grounds to believe that the offense charged by the complainant has been committed." If, however, there be no rea- sonable grounds to believe that the offense has been committed, the magistrate, notwithstanding the affidavit of the complainant, may decline to issue the warrant. The warrant must be directed to the sheriff or to any constable of the county, or if the same be issued by an officer of a municipal corporation, then to the marshal or other police officer of such cor- poration, and must show, by a copy of the affidavit inserted therein, or annexed and referred to, or recite the substance of the (u) Eev. Stat., § 7133. 870 PROCEEDINGS IN CRIMINAL CAUSES. [CHAP. Issuing and form of common state warrant. accusation, and must command the oflSecr forthwith to take the ac- cused and bring him before the magistrate or court issuing the warrant, or some otber magistrate of the county having cognizance of the case, to be dealt with according to law," A warrant substantially in the form following will be deemed sufficient : ^ JVo. 110.] Form of state warrant. The State of Ohio, county, ss. To any constable of said county, greeting : ' "Whereas, there has been filed with me an affidavit, of wjiich the following is a copy : [Sisre copy the affidavit.^ These are therefore lo command you to take the said E. P., if he be found in your county, or, if he has fled, that you pursue after him into any other county in the state, and take and safely keep the said E. F., so that you have his body forthwith before me, or some other magistrate of said county, to answer the said complaint, and be further dealt with according to law. Given under my hand, this day of , . A. B., Justice of the Peace. No. 111.] Form of state warrant to arrest and remove one who has absconded.'" The State of Ohio, Erie county, ss. To any constable of said county, greeting : Whereas, complaint has been made before me, one of the justices of the peace in and for the county aforesaid, upon the oath of A. B., that C. D., late of the county of Wood,'d\d, on or about the day of , 18 — , at said county of Wood [here state the offense as directed inthe preceding page.] and that the said C. D. hath removed from the said county of Wood to said Erie county. These are therefore to command you to take the said C. D., if he be found in your county, and -remove him to the said county of Wood, where the said offense is alleged to have been committed, and there deliver him to the magistrate orcourt having cognizance of the case, to be dealt with according to law. Given under my hand [and seal], this day of , a. d. 18—. G. H., J. p. (v) Eev. Stat., ? 7137. (w) Rev. Stat., ? 7140. If the offense is a felony, the compensation for the removal is paid by the county auditor. Rev. Stat., § 7180. (x) Kev. Stat., g 7138. LXXITI.] PROCEEDINGS IN CRIMINAL CAUSES. 871 Of the service and return of a warrant. Sec. VI. Op the service and return op a warrant. A lawful warrant from a magistrate, who has jurisdiction of the cause, will justify the oificer who executes it, although irregularly awarded ; the oflficer, however, is not excused if the magistrate who issued the warrant had no jurisdiction of the offense.'' In all cases where an arrest is made, it is proper for the oflScer to produce his warrant if demanded ;y and it is his duty to do so where he executes the warrant out of his county, or if ho be not generally known.' In executing a warrant for the arrest of a person charged with ■an offense, or a search warrant, the officer may break open any outer or inner door or window of a dwelling-house or other build- ing, if, after notice of his office and purpose, he be refused ad- mittance. But an officer, in executing a search warrant, has no authority to enter any house or building not described in the war- rant." If the goods mentioned in the search warrant can not be found, the party accused can not be arrested on the search warrant. If any person charged with the commission of an offense flees from justice, the officer holding the warrant against him may pur- sue and arrest the accused in any county in the state', and convey him before the magistrate or court issuing the warrant, or other magistrate or court of the county having cognizance of the case.' After a party has once been actually arrested and escapes from custody, the right of the officer to break open doors and windows, after notice of his office and purpose, still continues.'' If the officer takes the wrong person on a warrant, he will be a trespasser.* When the officer has made the arrest, whether in the county where the justice who issued the warrant resides or on pursuit in any other county in the state,* he must immediately, or within a reasonable time, convey the pris.oner to the magistrate or court who issued the warrant, or other magistrate or court of the county having cognizance of the case.^ The prisoner has no right to direct before whom he shall be taken. (i) "Wright, 710 1 6 Ohio, 144 f Com. (a) Key. Stat., g 7141. Dig. Impris. H. 8, 9. (b) Rev. Stat., ?§ 7189, 7130. (y) 8 T. Pv. 188. (oj 1 Chit. C. h. 58. (z) 19 Ohio St. 248; Hale's P. C. (d) Com. Dig. Impris. H. 7. 116. (e) Kev. Stat., g 7142. 872 PROCEEDINGS IN CEI3UXVL CAUSES. [CHAP. Of the service and return of a warrant. "When the officer has a ■warrant against a person accused of mur- der or of an offense punishable with imprisonment in the peniten- tiary, if the person accused fly, and endeavor to resist the attein])t\ to apprehend, or escape after his capture, and he be killed in the resistance or pursuit, an absolute necessity or self-defense will justify the officer in the homicide.'^ But if the warrant be for a less offense, or a mere breach' of the peace, the officer killing the accused in the attempt to take him, will be guilty of manslaughter and a penitentiary offense, unless indeed he do it in self-defense;' for the officer has, in all cases, a right to repel force with force, whilst in the legal discharge of his duty to make an arrest, and to defend his own person in so doing.' When a legal warrant is tendered by a magistrate to an officer, he is bound to receive it, and it must be immediately executed by him ; and if he neglect or delay to servo it, when in his power, either alone or bj' calling on assistance, and the offense charged is punishable with death, or imprisonment in the penitentiary, the constable will subject himself to a fine not exceeding five luindred dollars, or to imprisonment in the county jail not more than 30 days, or both, at the discretion of the court of common pleas.s When a constable is thus guilty of neglect or delay in serving any other legal warrant issued under a charge of a less offense than those above mentioned, he subjects himself to a fine of not more than one hundred dollars and imprisonment not exceeding twenty days, or both, and may be removed from office by the courts An officer who voluntarily suffers a prisoner to escape, is liable to a fine of from fifty to five hundred dollars, or three months' im- prisonment, or both.'^ The warrant, with a proper return thereon, signed by the con- stable, must be delivered by him to the magistrate before whom the accused is brought.' The return to a common state warrant is as follows : October 23, 1875. I have the body of the within named C. D. Tees, . C. C, Constable. v^f ) 1 Chit. C. L. 62 1^9 Ohio St. inal law applicable to the mis- 248. conduct of justices and consta- (g) Eev. Stat., g 6917. bles, see Kev. Stat., § 6909 et (h) Eev. Stat., g 6903. For the fur- seq. „ ther' provisions of the crim- (i) Eev. Stat., g 7142. I.XXIII.] PROCEEDINGS IN CRIMINAL CATTSES. 873 Subpenas for witnesses — Adjournment of trial, etc. The common return to a searc h warrant may be in the form following : October 23, 1875. I searched for the goods described in the within warrant, at the place therein mentioned, and found the fol- lowing : [describe them.'] 1 have the said goods last mentioned, and the body of the within-named C. D. Fees, . C. C, Constable. October 23, 1875. I made search as required by the within war- rant, and could not find the goods within described. C. C, Constable. Sec. VII. Subpenas for witnesses. On application of the complainant or defendant subpenas will be issued for witnesses. iVo. 112.] Form of subpena for witnesses. / The State of Ohio, county, ss. To any constable of the county, greeting : You are hereby commanded to summon , to be and appear before me, the undersigned authority, at my office in , forth- with, and thereto give testimony, and the truth to say, touching a certain complaint made on behalf of the State of Ohio against CD. Given under my hand, this day of , in the year 18 — . G. H., J. p. In complaints to keep the peace, and in cases of misdemeanor, the subpena must be served within the county; and in other cases it may be issued to, or served in, any county .J The mode of serving and returning subpenas, and proceedings against witnesses for failing to attend, or refusing to answer ques- tions, have already been stated.J Sec. VIII. Adjournment or the trial of the complaint with FORMS. An adjournment of the examination may be had by the com- plainant or the prisoner for any just cause. By consent of the ( j) Kev. Stat., 2 7132. See pp. 93, 94, 114. 874 PROCEEDI.SGS IN CRIMINAL CAUSES. [CHAP, Adjournment of the trial of the complaint, with forms. complainant and prisoner an adjourment may be had for any rea- sonable period. If the prisoner does not enter into recog^nizance for his appearance on the adjourned day, the adjournment can not bo had, except by the consent of the prisoner, for more than four days.'' If, however, he enters into such recognizance, the adjourn ment may be for a period not exceeding twenty days,^ unless the ' prisoner consents to a further delay of the examination beyond twenty days. The magistrate may commit the accused, from time to tirtie, to the jail of the county, for safe keeping, until the cause of the delay of the trial is removed ; the whole time, however, oi such confinement, must not, as above stated, exceed four days.^ Instead of committing the accused to the jail, the magistrate may, by written order, direct the constable to detain such person in custody in some secure and convenient place, to be designated by the magistrate in his order, not exceeding four days. The officer in whose custody the accused is so detained, under the order of the magistrate, must provide for the sustenance of the prisoner while in custody.! When an adjournment is had, the person accused may enter into a recognizance before the magistrate, with good and sufficient secu- rity, to be approved by the magistrate, in such amount as he shall deem reasonable, conditioned for the appearance of such person before the magistrate, at a place and day and hour in the recogni- zance specified.™ The adjournment in such case, as has already been stated, must not be for a longer time than twenty days with- out the consent of the accused. Of course, a person charged with an offense not bailable, under the constitution of the state, can not be let to bail." If the person recognized fails to appear at the time appointed, or fail otherwise to comply with the conditions of the recognizance, the magistrate will declare the same forfeited by entry to that effect on his docket, and transmit a transcript of his proceedings in the case, together with the recognizance, to the clerk of the proper court." In all other cases, forfeited recognizances must be delivered im mediately to the county auditor.? (k) Rev. Stat., ? 7143. (o) The court to wliom the transcripts (Ij Kev. Stat., § 7143. and recognizance are trans- (m) Kev. Stat., § 7144. mitted proceed thereon. Eev. (n) Constitution, art. 1, sec. 9. Stat., § 7145. (p) Bev. Stat., i 7181. I X X.ni.] PROCEEDINGS IN CEIMINAL CAUSES. 875 Adjournment of the trial of the complaint, with forms. Form of docket entry when examination is adjourned. September 30, 18 — . This day came the said A. B. in custody of • . C, constable, who made return of the warrant. September 30, 18 — , rweived this warrant, and have the body of said A. B. C. C, Constable. On motion of A. B. [or say, C. D.] and on account of the absence of W. "W"., a material witness [stating the cause of the adjournment according to the fact^ trial adjourned to Tuesday next, October 2, IS — , at 10 o'clock A. M., at my office. [Thereupon mittimus issued ar,tl delivered to C. C, constable, for commitment of A. B. to jail of county for safe keeping; or, if the prisoner is ordered into custody of the constable, say: Thereuj)on issued written order to 0. C, con- stable, who has the prisoner in custody, to detain him in custody at^ -naming the dwelling-house or place; or, if the prisoner enters into a recognizance for his appearance on the day of trial, say : Thereupon the said A. B., with S. S. his surety, approved by me, entered into a recognizance before me, for his appearance, etc., at the time and place above named for the trial. The recognizance is not entered on the docket, but taken on a separate sheet, so that the original can, if necessary, be filed in court. Form of recognizance on adjournment of trial. Follow the form on page 882 to the asterisk,'^ and then proceed as fol- lows: me, the said G. H., at my office, in the township of , in said county, on the day of , a. d. 18 — , at o'clock in the forenoon, [naming the day and hour to which the trial is ad- journed,'] then and there to answer a charge of [here name the crime or offense with which the party is charged,] and abide my order aa such justice, and not depart without leave, then this recognizance shall be void ; otherwise it shall be and remain in full force and virtue in law. Taken and acknowledged before mo, on the day and year above written. G. H., J. P. ■JVo. 113.] Form of commitment pending a trial. The State of Ohio, county, ss. To the keeper of the jail of the county aforesaid, greeting : Whereas, A. B. has been arrested on the oath [or, affirmation] 876 PROCEEDINGS IN CRIMINAL CAUSES. [CHAP. Adjournment of the trial of the complaint, with forms. of C. D., for [Iiere insert the crime, or offense, stating time, place, and circumstances, and the offense in the language of the statute describing the offense,] and has been brought before nne, and the same has been necessarily postponed by reason of [_here state the absence of a ma- terial witness, or other cause of delay, according to the fact.] Therefore I command you, in the name of the State of Ohio, to receive the said A. B. into your custody in the jail of the cc/nnty aforesaid [or in such other place as the said magistrate may name,] there to remain until discharged by due course of law. Given under my hand, this day of , 18 — . G. H., J. B. The form of the above mittimus is prescribed by statute. Eev. Stat., § 7188. Forin of order to constable to hold a prisoner during adjournment or pending a trial. The State of Ohio, county, ss. To C. C, constable of township, in the said county, greet- ing: Whereas, A. B., of the county aforesaid, has been arrested on the oath [or, aflB-rmation] of C. D., for [here state the crime or offense^ and has been brought before me, G. H., one of the justices of the peace in and for said county, by you, for trial, and which trial has been necessarily postponed until the day of , 18 — , at 10 o'clock, A. M., by reason of [here state the absence of a material wit- ness, or some other cause of delay, according to the fact'] Therefore I command you, in the name of the State of Ohio, to detain the said A. B. in your custody, at [here state the house or place as thus: your dwolling-house] in said county, there to remain until brought before mu on said adjourned day and the time of trial, or until discharged by due course of law. Given under my hand this day of , a. d. 18 — . G. H., J. p. LXXIII.] PROCEEDINGS IN CRIMINAL CAUSES. 877 The examination or trial; recognizance, mittimus, docket entries, etc. Form of docket entry of forfeiture of recognizance. September 30, 18 — . \_The day for the appearance of the accused^ Ibo defendant failed to appear at anytime on the said day ap- pointed, as he was bound to do according to the conditions of his recognizance, and the same became and is hereby declared forfeited. If the defendant was recognized, and during the progress of the trial escape, enter the forfeiture as follows: September 30, 18—, 10 o'clock a. m. The defendant appeared, and this complaint came on to trial; and then, while the said' de- fendant was on trial, he, without leave, departed and failed to answer to said charge, or comply with the conditions of his said recognizance, and the same became and is hereby declared forfeited. Sec. IX. The examination or trial; recognizance, mittimus, DOCKET ENTRIES, ETC. If a person accused- of a misdemeanor (that is, of an offense punishable by fine, or imprisonment in the jail of the county, or punishable by both fine and such imprisonment) is brought before a magistrate on the complaint of the party injured, and pleads guilty to the charge, the magistrate may, at his discretion, sentence the person to such punishment as he may deem proper within the provisions defining the offense, and order the payment of the costs ; or the magistrate may require the accused to enter into a recognizance, with security, to appear at the proper court, as in cases punishable by imprisonment in the penitentiary, and herein- after mentioned-' If the complaint be not by the party injured, the accused, on plea of guilty, must bo recognized to appear at court. If the accused plead not guilty, but waives an examination of witnesses to sustain the charge, and submits to be bound over without such examination, the justice will so state on his docket, and take recognizance or commit, etc., as if the accusation had been found to be true.° Tf the accused plead guilty of an offense punishable by imprison- ment in the penitentiary, the magistrate will require the accused 10 enter into a recognizance, with security, and in default thereof issue a mittimus for his commitment. If there is no plea of guilty, and no just cause for an adjournment, (r) Eev. Stat., § 7146. (s) 23 Ohio St. 562. / 878 PK0CEEDING8 IN CRIMINAL CAUSES. [CHAP. The examination or trial; recognizanue, mittimus, (locket entries, etc. the magistrate must, as soon as may be, in the presence of the ac- cused, inquire into the complaint, whether the same be for a mis- demeanor or penitentiary offense. The witnesses for the prosecution are first sworn and examined,' and then the witnesses for the defense. The same general rules, already stated," in regard to the mode of examining witnesses, and the questions that may be asked, are in general applicable to criminal trials. The magistrate, if requested, or if he see good cause therefor, will order the witnesses on both sides to be examined, each one separate from all the others ; and also order the witnesses for, to be kept separate from the witnesses against the accused during the examination.^ ' No person is disqualified as a witness in any criminal prosecution by reason of his interest in the event of the same, as a party or otherwise ; or by reason of his conviction of any crime ; but such interest or conviction may be shown for the purpose of affecting his credibility.'' Husband and wife, however, are from public policy held to be incompetent to testify for or against each other in criminal prosecutions.==\/^ In all trials of the complaint or other proceedings against per- sons charged with the commission of crimes or offenses, the accused, at his own request, but not otherwise, is to be received as a com- petent witness ; and his neglect or refusal to testify shall not create anj' presumption against him, nor shall any reference be made to, nor any comment upon such neglect or refusal. ^^ The credibility of such a witness is of course to be left to the magistrate ; and a searching cross-examination will, in general, tend to expose his guilt. When the offense charged is a misdemeanor punishable by im- prisonment, and the accused, in a writing subscribed by him, and filed before or during the examination, waive a jury and submit to be tried by the magistrate, ho may render final judgment.^ The waiver may be as follows : (t) For the form of oath, see ante, p. 116. (u) See ante, pp. mO-138. (v) Eev. Stat., § 7148. (w) Kev. Stat., ? 7284. n<(x) 20 Ohio St. 333 ; see ante, p. 596. vXy) Eev. Stat., g 7286. (z) Eev. Stat., § 7147. As to the waiver before a mayor, see Id., Jg 1834, 1825, 1818. As to trial and disposal of boys or girls charged with offenses, see Eev. Stat., §§ 2051 et seq., 2100, 774. LXXIII.] PROCEEDINGS IN CRIMINAL CArSES. 879 The examination or trial; recognizance. Before G. H., justice of the peace, county. On examina- tion of complaint, made in behalf of the state against me, on charge of [name the offense'], I hereby waive a jury and submit to be trifed, by said justice. [Date and signature.] If a jury is not waived in such case, the justice will recognize, commit, or discharge the accused. The recognizance of the accused should be for such an amount as will be likely lo insure a compliance with its conditions. The magistrate ought, therefore, in determining its amount, to take into consideration the nature of the offense and the character and prop- erty of the accused. A wealthy individual, charged with a peni- tentiary offense, would forfeit his recognizance and indemnify his sureties, if the amount were not such as would, be oppressively large when required of a poor person. And if, by the commission of the crime the accused has obtained property and retains it, the magistrate should require a recognizance at least for a larger amount than the value of»such property. The offender should not be permitted to make the crime itself an instrument for his escape: The amount should not be oppressive, but never so small as to hold out an inducement to the accused to forfeit his recognizance. In all cases in which it is made the duty of any court or oflScer to take or accept any bail or recognizance, or approve the security offered on any bond or recognizance, in any proceeding in criminal cases, or cases of a criminal nature, such court or officer may re- quire any person offered as surety on such bond or recognizance to make an affidavit of his qualifications, or to be examined orally under oath, touching such qualifications." The affidavit may be made or the oath administered by the court or officer." One surety in any such bond or recognizance must be, a resident of the countj in which the proceeding is pending, or in which the cause or offense arose, and the sureties must be worth double the sum to be secured, and have property liable to execution in this state, equal, at least, to the sura to be secured." Where two or more sureties are offered to the same bond or recognizance, they must in the aggregate have the qualifications above mentioned." The affidavit of the surety may be as follows : (c) Bev. Stat., §? 7159, 7160. 880 PROCEEDINGS IN CRIMINAL CAUSES. [CHAP, The examination or trial ; recognizance. JVo. 114.] Form of affidavit of surety or bail to justify. The State of Ohio ) V. V Before G-. H., j. p. 0. D. 3 The State of Ohio, County, ss. E. F. offered as surety on recognizance, in the above case, makes oath and says that he is a resident of said county ; that he is worth, when all his debts are paid, at least \here insert double the amount of the proposed recognizance'] dollars; and that he has property in the State of Ohio over and above all exemptions from execution worth at least \here insert the amount of the proposed recognizance] dollars, [Signed.] Sworn to and subscribed before me this day of , a. d. 18—. G. H., J. p. If, on examination, it appears to the magistrate that the accused has committed an offense of a higher grade than that charged, he may be held to answer therefor.'' If the offense be not bailable (that is, in case of murder in the first degree, the proof being evident or the presumption great against the aecused,'=) or if sufficient bail be not offered in cases in which bail is required, the prisoner must be committed to the jail of the county in which the offense is to be tried, there to remain until he be discharged by due course of law.' For this purpose a mittimus is issued in the form given at the end of this section. If, upon the whole examination, it appears that there has been no offense committed, or that there is not probable cause for hold- ing the prisoner to answer the offense, he must be discharged.e U, however, upon the whole examination, it appears that an offense has been committed, and there is probable cause to believe the prisoner guilty, the magistrate, if the offense be bailable, and the prisoner offer sufficient bail, will take a recognizance for his appearance before the proper court, and recognize the witnesses as hereinafter stated.'' The recognizance will be conditioned for the appearance of the accused on the first day of the next term of the proper court, if the (d) Kev. Stat., § 7162. (g) Rev. Stat., § 7140. (e) Const., art. 1, sec. 9. (h) Bev. Stat., g§ 71,61, 7147. (f) Kev. Stat., t 7163. LXXIII.] PKOCEEDINGS IN CRIMINAL CArSES. 881 The oxaminatioii or trial; recognizance of witnesses. court is not in session ; but if the court is in session, then the re- cognizance will be conditioned for the appearance of the accused ibrthwith ; but no recognizance requiring the accused to appear at the next term will be invalid, although the court is then in session.' As to the recognizance of witnesses : If it appears that an offense has been committed, and there is probable cause to believe the prisoner guilty, the magistrate must bind by recognizance such witnesses against the prisoner as he shall deem necessarj' to appear and testify before the court baving cognizance of the offense, on the first day of the next terra thereof, and not to depart from such court without leave. If the court is in session, the witnesses must be recognized to appear forthwith.^' The magistrate must indorse on the transcript of the case the number of miles each witness is entitled. When the magistrate is satisfied that there is reason to believe that any such witness will not perform the condition of his own recognizance, he may, when the offense charged is a felony (that is, a crime punishable by death or imprisonment in the penitenti- ary,) order such witness to recognize with sufficient sureties.^ Any person may recognize in behalf of a married woman or minor to appear as a witness, or the magistrate may take the recog- nizance of either, in a sum not exceeding one hundred dollars, which the statute declares valid, notwithstanding the disability of coverture or minority.^ ^ If any witness so required to enter into a recognizance refuse to comply with such order, the magistrate will commit the witness to jail until he or she comijly with such order, or be otherwise dis- charged according to ]aw.(l) All recognizances of the accused, and witnesses taken by the. magistrate, together with a transcript of the proceedings where the 'defendant is hold to answer, must be certified and returned forth- wiih to- the clerk of the court at which the prisoner is to appear; (i) JXav. Stat., ? 7161. (k) Eev. Stat., ? 7151. (j) Itcv. Stat., i 7150. (1) Eev. Stat, § 7152. ^''(1 ) 21 O hio St. 183. As to entry of rficognizance and transcripts on appear- ance, by the clerk, see EeV. Stat., §716|; and as to forfeiture of recognizance of the accused and witnesses, see Kev. Stat., g 718Q« 882 PROCEEDINGS IN CRIMINAL CAUSES. [cHAP. The examination or trial; recognizance, mittimus. and the' transcript mubt also contain an accurate bill of all the costs that have accrued, and the items composing the same.™ No. 115.] Form of recognizance of the accused.'' The State of Ohio, county, ss. Be it remembered, that on the day of , in the year , E. F. and C. D. personally appeared before me, and jointly and severally acknowledged themselves to owe the State of Ohio the sum of dollars, to be levied of their goods and chattels, lands and tenements, if default be made in the condition following, to wit : The condition of this recognizance is such that if the above bound E. P. shall personally be and appear before • the court of common pleas, on the first day of the next term thereof [or, if the probate court " has jurisdiction of the matter or offense, on the first day of the next term of the probate court for the trial of criminal cases, or, if such court is at the time in session, the recognizance shall require the person to appear forthwith before zY].J then and there to answer a charge of [_here name the offense with which the accused is charged'], and abide the judgment of the court, and not depart without leave, then this recognizance shall be void ; otherwise it shall be and re- main in full force and virtue in law. Taken and acknowledged before me, on the day and year above written. A. B., Justice of the Peace. Wo. 116.] Form of mittimus for the commitment of the party accused." The State of Ohio, county, ss. To the keeper of the jail of the county aforesaid, greetinw : Whereas, C. D. has been arrested on the oath of A. B., for [here describe the crime or offense, with time, place, and circumstances, as fully as in the affidavit, and in the words of the statute defining the offense. The description must show substantially a criminal matter for which a justice of the peace has power to commit. See Rev. Stat, § 5729,] and has been examined by me on such charge J and required to give bail in the sum of dollars for his appearance before [the court of. common pleas of said county on the first (m) Eev. Stat., § 7155. jurisdiction, see Eev. Stat., § (n) Kev. Stat., g 7187. Astorecogni- 6467. zances, etc., in counties in which (o) Rev. Stat., g 7188. probate courts have criminal LXXin.J PROCEEDINGS IN CRIMINAL CAtTSES. 883 The examination 01' trial; rooognizanco of witnesses. day of the next term thereof, or forthwith ; or say. before the pro- bate court, etc., as directed in form. No.llb^and as the fact was,'\^ with which requisition ho has failed to comply. Therefore, in the name of the State of Ohio, I command you to receive the said 0. D. into your custody, in the jail of the county aforesaid, there to remain until he [or she] shall be discharged by due course of law. Given under my hand, this day of— — , 18 — . G, H., Justice of the Peace. No. 117.] Form of recognizance of witness who is required to give security. [Follow the preceding form, No. 115, to the J, and then proceed as follows .] then and there to give evidence and the truth to say on behalf of the state, touching such matters as shall then and there be required of him, and not depart the court without leave, then this recognizance shall be void ; otherwise it shall remain in full force and virtue in law. Taken and acknowledged before me on the day and year above written. G. H., Justice of the Peace. No. 118.] Form of recognizance of witness alone without security. The State of Ohio, county, ss. Be it remembered, that on the day of , in the year- personally appeared before me W. W., and acknowledged himself to owe the State of Ohio the sum of dollars, to be levied of his goods and chattels, lands and tenements, if default be made in the condition following, to wit : The condition of this recognizance is such that if the said W. W. shall personally be and appear before the court of [here insert the proper court and term for the appearance of the witness, as directed in preceding form. No. 115], then and there to give evidence, and the truth to say on behalf of the state, touchijig such matters as shall then and there be required of hjm, and not depart the court with- 56 884 PROCEEDINGS IN CRIMINAL CAUSES. [CHAP. The examination or trial — Mittimus against witnesses. out leave, then this recognizance shall bo void ; otherwise it shall remain in fall force and virtue in law. Taken and acknowledged before me on the day and year above written. G. H., Justice of the Peace. Ko. 119.] Form of mittimus for the commitment of a witness whc refuses to enter into a recognizance for his appearance. Follow the preceding form of the mittimus for the commitment of the accused from the beginning of that form to the asterisk* and then 'proceed as follows: and thereupon I ordered "W. "W., a witness against the said 0. D., to enter into a recognizance in the sum of dollars, to appear and testify before said court, on the said first day of its next term ; and thereupon the said W. "W". refused to comply with said order. Therefore, in the name of the State of Ohio, I command you to receive the said W. W. into your custody in the jail of the county aforesaid, there to remain until he comply with said order, or be otherwise discharged according to law. Given under my hand, this day of , A. d. 18 — . G. H., Justice of the Peace. No. 120.] Form of mittimus for commitment of a witness who refuses to recognize with security. Follow the preceding form of mittimus, page 882, from its beginning to the asterisk,* and then proceed as follows : and the said offense being a felony, and I being satisfied that there is reason to believe that one "W. W., a witness against the said C. D., would not per- form the condition of his own recognizance, I ordered the said W. W. to recognize, with sufficient securities, in the sum of dollars, to appear and testify before said court, on the said first day of its next term, and thereupon the said W. W. refused to comply with said order. Therefore, in the name of the State of Ohio, I command you to receive the said W. W. into your custody in th.e jail of the county aforesaid, there to remain until he comply with said order, or be otlaerwise discharged according to law. Giveo under my hand, this day of , A. D. 18 — . G. H., Justice of the Peace. LXXIII.] PROCEEDINGS IN CEIMINAIi CAUSES. 885 Docket entries — Search-warrant. Form of docket entry on examination of an indictable offense. The State of Ohio v. C. D. September 8, 18 — . Cornplaint in writing on oath signed by A. 73., filed with me, charging that C D. on or about the day of , IB — , at the county of , [here describe the offense as in the (omplaint.'] If there is an order in regard to costs, proceed as directed in third nection of this chapter. September 8, 18 — . Issued warrant against C. D. and delivered to ,C. C, constable. September 9, 18 — . "Warrant returned with body of defendant. Constable's return : [here copy return of constable.] If the trial is adjourned, proceed as is directed in the sixth section of this chapter. September 12, 18 — , 10 o'clock A. M. The defendant appeared ; trial had ; A. B. [etc., naming loitnesses for the state,] witnesses for the state, and W. W. [etc.] witnesses for the defendant, sworn and osamined, and thereupon [here enter the discharge of the defendant and judgment for costs, as directedto the third section of this chapter, or if the defendant is required to appear at court to answer the charge, proceed as follows .-] I find said offense has been committed, and there is cause to believe the defendant guilty thereof; I therefore ordei-ed him to enter into a recognizance in the sum of dollars, with safflcient sureties, for his appearance at court, etc. [which was done accordingly, B. T. and M. T. his sureties ; or say, if the fact be so, and the defendant not offering sufficient bail, I issued, a mittimus for his commitment and delivered the same to C. C, constable.] Recognized the following witnesses for the state : A. B. [etc.] In- dorse on transcript the number of miles each witness is entitled. See Eev. Stat., § 1304 July 13, 188-. Mittimus returned. [Sere copy return to the mit- timus.] Note at the end of the docket entry the items of fees of justice, constable, and witnesses, each separately. Sec. X. Search-warrant. Justices of the peace, mayors, and police judges may issue a • warrant to search any house or place : 886 PROCEEDINGS IN CRIMINAL CAUSES. [CHAP. Seareh-warrant. 1. For property stolen, taken by robbers, embezzled, or obtained under any false pretense. 2. For forged or counterfeit coins, stamps, imprints, labels, trade- marks, bank bills, or other instruments of writing, and dies, plates, stamps, or brands for making the same. 3. For books, pamphlets, ballads, or printed papers containing obscene language, prints, pictures, or descriptions manifestly tend- ing to corrupt the morals of youth, and for obscene, lewd, or inde- cent or lascivious drawings, lithographs, engravings, pictures, da- guerreotypes, photographs, stereoscopic pictures, models, or casts, and for instruments or articles of indecent or immoral use, or in- struments, articles, or medicines for procuring abortion, or for the prevention of conception, or fol* self-pollution. 4. For any gaming table, establishment, devioBj or apparatus kept or exhibited for the purpose of unlawful gaming, or to win or gain money or other property, and for any money or property won by unlawful gaming.^ No warrant for search shall be issued until there has been £led with the magistrate an affidavit particularly describing the house or place to be searched, the person to be seized, and the things to toe searched for, and alleging substantially the offense in relation thereto, and that affiant believes, and has good cause to believe, that such things are there concealed.^ The warrant for search shall be directed to the proper officer, and shall show, by a copy of the affidavit inserted therein, or an- nexed and referred to, or recite, all tlie material facts alleged in the affidavit, and particularly describe the thing to be searched for, the house or place to be searched, and the person to be seized. It shall command the officer to search such house or place for the property or other things, and, if found, to bring the same, together with the person tobe seized, before the magisti-ate, or some other magistrate of the county having cognizance of the same ; and the command of the warrant shall be that the search be made in the day time, unless there is urgent necessity for a search in the night, in which case such search in the night may be ordered.^ The mode of executing a search-warrant has already been stated,' When the warrant is executed by a seizure of the proj)erty or things described therein, the same must be safely kept by the mag- istrate to be used as evidence." Adjournment and examination, and the proceedings generally (s)^Eev. Stat., § 7120 et seq. (t) See sec. 6 of thia chapter. LXXIII.] PROCEEDINGS IN CEIMINAL CAUSES. 88T Search-warrant — Affidavit. of the magistrate, when the accused is brought before him on a search warrant, are the same as hereinbefore directed in this chap- ter on other ^tate warrants. If, upon examination, the magistrate shall be satisfied that the offense set forth in the complaint in reference to the property, or other thing seized by the officer, has been committed by the accused, he will commit or recognize the prisoner, as in other cases, and it is his duty either to keep possession of such property or other things, or deliver them to the sheriff of the proper county, there to remain until the case against the offender has been disposed of, or the claimant's right has been otherwise ascertained.^ If, however, the magistrate discharges the person accused for want of proof, or being found innocent, the property or othe? things must be returned to the person in whoso possession they were found." No. 121.] Form of eomplaint or affidavit for a search warrant in cases of larceny. The State of Ohio, ■ county, ss. Before me, G. H., oneof the justices of the peace for said 0(j;unty, personally came A. B., who being duly sworn according to law doposeth and saith, that on or about the day of , at said county,(l) the following goods and chattels, the property of , to-wit : [here describe the property or things as particularly as possible, and any colors, devices, or marks on them which may tend to identify them, as thus : three muslin shirts with linen bosoms and cuffs, partly worn, marked A. B. in India ink, the initials of de^ ponent's christian and surname ; one overcoat made of blue pilot cloth, black silk velvet collar, pearl buttons about one inch in diameter, outside pockets in skirt and two pockets each side of breast, one button off in front, etc.]=i= were by some person or persons feloniously taken, stolen, and cai'ried away [out of the house, or say, from the premises of the deponent, or say, one E. H., (tccording to the fact,"] of said county; and that the said goods and (v) Kev. Stat., g 7125. (w1 Eev. Stat., § 7126. 888 PEOCEEDINGS IN CRIMINAL CAUSES. [cHAP. Search-warrant — Affidavit. chattels, as the deponent verily believes, and has good reason to be- lieve, are concealed by one C. T>., he knowing the same to have been stolen, at his dwelling-house, iil which he resides, situate in the township of , in said county; or say, being No. , in street, in the city of , in said county.] If the person who conceals the goods is also believed to be the thief, proceed as in the above to the asterisk,* and then as follows : were feloniously taken, stolen, and carried away ; and this deponent says he verily believes, and has good reason to believe, that one C. D. is guilty of the above fact charged, and now conceals said goods and chattels at his dwelling-house, in which he resides, situate in the township of , in said county. [Signed,] A. B. Sworn to and subscribed before me, this day of , A. d. 18—. G. H., Justice of the Peace. 'No. 122.] Form of complaint or affidavit for a search-warrant in cast of embezzlement. Follow the preceding form to the [1], and from that point proceed ai follows: One C. D., then over eighteen years of age was in the em- ploy of one E. F., as [here state the kind of employment in the language of the statute, R. S., § 6842] ; and while so the [clerk, or say, servant, or say, agent, according to the f act, 1 of the said E. F. did, as deponent verily believes [embezzle, or say, convert to his own use, according to the fact, and in the language of the statute describing one of the offenses set forth in the statute,"] without the consent of his said employers, certain goods and chattels of the value of — — dollars, the property of the said E. ¥., and which were then in the possession of the said C. D., by virtue of his said employment, to wit : [Jiere describe the property as directed in the preceding form,] and the deponent says that the said goods and chattels, as he has good reason to believe, and does verily believe, are concealed by the said C. D. at [here describe the place, as directed in the preceding form.] [Signed,] A. "B. Sworn to and subscribed before me, this day of , a. d. 18—. Gt. H., Justice of the Peace"; LXXTII.] PKOCEEDINGS IN CEIMINAL CAUSES. 889 Proneedings for offenses committed in another state. No. 123.] Form of search warrant. The State of Ohio, county, ss. To any constable of said county, greeting : "Whereas, there has been filed with me an affidavit, of which the following is a copy : [JTere copy the affidavit^ These are, therefore, to command you, in the name of the State of Ohio, with the necessary and proper assistance, to enter in the day time \or, in the night time] into \here describe the house or place as in the affidavif] of the said 0. D., of the township of , in tlie county aforesaid, and there diligently search for the said goods and chattels, to wit: [^Here describe the articles as in the affidavitl And that you bring the same, or any part thereof, found on such search, and also the body of C. D., forthwith before me, or some other magistrate of the county, having cognizance thereof, to be disposed of and dealt with according to law. Given under my hand, this day of . G. H., Justice of the Peace. As to the service of a search warrant, see ante, p. 871, As to form of return by the officer, see ante, p. 873. Sec. XI. Proceedings eoe offenses committed in anothee state. When an affidavit is filed before a magistrate within this state, setting forth that any person charged with the commission of a criminal offense against the laws of any other state, or any of the territories of the United States, and which, if the act had been committed in this state, would, by the laws thereof, have been a crime, is, at the time of filing such affidavit, within the county where the same maybe filed, it is lawful and by law made the duty of such magistrate to issue his warrant, directed to the sheriff or any constable of the county, commanding him forthwith to arrest 890 rROCEEDINGS IN CRIMINAL CAUSES. [CHAP. The proceedings, with forms on complaint to keep the peace. £ind bring before the officer issuing such writ the person so charged." The magistrate issuing the warrant must hear and examine the charge, and tipon proof by him adjudged sufficient commit such person to the jail of the county in which such 9xamination is made, or caiise such person to be delivered to some suitable person, to be removed to the proper place of prosecution.'' If the magistrate commits such person tO\the jail of the county, he must forthwith give notice, by letter or otherwise, to the sheriff of the county in which the offense was committed, or to the person injured by such offense.^ The person so committed can not be kept in jail longer than is necessary to allow a reasonable time to the person so notified, after they shall have received such notice, to apply for and obtain the proper requisition for the person so committed.'' The form of the mittimus and docket entries may be readily made up from those already given. Sec. XII. The proceedings with forms on complaint to keep THE PEACE. Whenever any person makes complaint in writing, upon oath, before a justice of the peace, mayor, or police judge, that he lias just cause to fear, and does fear, that another will commit any offense against the person or property of himself, his ward or child, the magistrate before whom the complaint is made will issue a war- rant, in the name of the state, to any constable of the county, or if issued by an officer of a municipal corporation, then to the marshal or other police officer, commanding him forthwith to arrest the per- son complained of, and him to take before such magistrate, or any other magistrate of the same county above named, to answer to such complaint.^ The complaint to keep the peace may be in the form -following : Wo. 124.] Form of complaint before a justice. The State of Ohio, county, township, ss. A. B. makes complaint on oath before G. H., justice of the peace of said township, and says that he is a resident of county, Ohio, and that * he has just cause to fear, and does fear, that one 0. D., of said county, will unlawfully, maliciously, and willfully [Iiere state the injury feared as thus, if an injury to the person : as- (x) Kev. Stat., g 7156. requisition, etc., see Eev. Stat., (y) Kev. Stat., §? 7157, 7168. As to ?§ 95-97. (z) Eev. Stat., § 7106. liXXIK.J PROCEEDINGS IN CRIMINAL CAUSES. 891 The proceedings, with forms on complaint to keep the peace. sault and beat him; or say, stab and kill him; or say, shoot and kill him, according to the threats; or if the fear is injury to property, say, burn his dwelling-house; or say, burn his barn; or say, burn his stacks of hay ; or say, fences ; or say, timber ; or say, poison his caltle; or say, kill his horses; or say, kill his sheep; or say, kill his cows; or say, kill his swine, according to the threats.']. [Signed,] A. B. Sworn to and subscribed before me, this day of , A. d. 18—. * G. H., J. p. of township aforesaid. If the complaint is fear of injury to ward or child, proceed as in the preceding form to the asterisk,* and then as follows: that he ia [the guardian of the person duly appointed; or say, he is the father] of E. B., an infant of the age of , and that he has jus\ reason to fear, and does fear, that one C. D., of said county, will uiJawfully,,.maliciously, and willfully assault and beat his said [ward, or say, child, as the case may he, stating the injury to per- son or property of the^ward or child, as in preceding forms, according tQ the threats.] No. 125.] Form of warrant on complaint to keep the peace. The State of Ohio, — > — county, ss. To any constable of said county, greeting : Whereas, complaint hath been made before me by one A. B... upon oath, that he [or she] hath just cause to fear, and does fear, one C. D. will [here state the threatened injury or violence, as in the complaint.] These are, therefore, to command jou to apprehend the said C. D., and bring him forthwith before me, or some other magis- trate having cognizance of the matter in said county, to show cause why [he, or say, she] should not find surety to keep the peace, and be of good behavior toward the citizens of the state generally, and the said A. B. especially ; and for [his, or say, her] appearance be- fore the proper court. Given under my hand, this dayof , in the year 18—. G. H., Justice of the Peace. (a) Kev. Stat., ? 7107. 892 PROCEEDINGS IN CRIMINAL CAUSES. [ClIAP Tho proceedings, with f..i'ni.i on complaint to keep the peace. The warrant is served and rotiirnod like other state -warrants, aa directed in the sixth seclrion of this chapter. When the party complained of is brought before the magistrate, he must be heard in his defense; tho witnesses examined under oath, as in other criminal trials. If, upon such examination, the magistrate is of the opinion that there is just cause for tho com plaint, he will order the person complained of to enter into a rec- ognizance, with good and sufficient security, in any surn not less than fifty dollars nor more than five hundred dollars, for his ap- pearance before the court of common pleas, on the first day of the next term thereof, and, in the meantime, that he shall' keep the peace and be of good behavior generally, and especially toward the person complaining. In counties, however, wherein the probate court has jurisdic- tion of minor crimes and offenses, the recognizance must be for tho appearance of the accused before the probate court, at the next term thereof for the trial of criminal cases; or if tho pi-obute court be in session at the time the recognizance is entered into or com- mitment made and a transcript filed, such recognizance and com- mitment will not thereby become void ; but the defendant appear- ing in court, may, with the consent of the prosecuting attorney, be tried at the then present term of the court.* A transcript and the recognizance must, as u.sual, be filed by the justice." No. 126.] Form of recognizance to keep the peace, etc. ■Follow the form of the recognizance on page 882, ante, to the as- terisk,* and then proceed thus : the [court of common picas, or say, if the probate court of the county has jurisdiction of minor offenses, the probate court] of ,(1) on the first day of the term thereof next to be holden in for the county aforesaid [Aere add if the de- fendant is to appear in the probate court "for the trial of criminal cases,'' and then proceed as folloics:'] then and there to answer to the charge of one A. B., that he has just csiuse to fear, and does fear, that said 0. D., will unlawfully, willfully, and maliciously [Aere state the injury feared, as in the complaint,'] and abide the or- der of the court thereon, and, in the meantime, keep tho peace and (a) Rev. Stat., §§ 7108, 7109, 7111. (1) If tlie court is in session, omit tho words "on the first day of the term thereof next to he," and suhstitute therefor the word "forthwith." LXXin.] PKOCEEDINGS IN CRIMINAL CAUSES. 893 The proceedings, with forma on complaint to keep the peace. be of good behavior toward the citizens of the state generally, aiid CHiJecially toward the said A. B., then this recognizance shall bo void; otherwise, to be and remain in full force and virtue in law. [Signed,] CD., E. P. Taken and acknowledged before me, on the day and year first above written.(l) G. H., Justice of the Peace. In default of such recognizance and security, the magistrate must commit the person complained of to the jail of the county, there to remain until discharged by due course of law.*" The form of the mittimus for the commitment of the person complained of may be as follows : N'o. 127.] Form of mittimus for want of recognizance to keep the peace. The State of Ohio, county, ss. To the keeper of the jail of the county aforesaid: Follow the form of the mittimus on page, ante, 882, from the begin- ning to the asterisli-X and from that point proceed as follows: And whereas, I, being of the opinion that there is just cause for the complaint, thereupon ordered the said C. D. to enter into recog- nizance, with security, in the sum of 'dollars, as the law di- rects, which he hath refused to do. Therefore, the State of Ohio hereby commands you to receive the said 0. D. into your custody in the jail of the county aforesaid, there to remain until discharged by due course of law. (b) Kev. Stat., § 7110. (1) A recognizance, it will be observed, is not a bond or simple undertaking of the accused and his sureties, but a record by the court or magistrate of what tr.anspired in open court, by way of the acknowledgment of a debt and its con- ditior. Hence, if the magistrate take the bond or undertaking of the accused and his sureties and indorse at the end " accepted and approved," it is not a re- cognizance or debt of record and is invalid. 3 Ohio St. 510. In regard to a recognizance the court say : All its solemnity and authenticity dejiend upon the magistrate's certificate that the acknowledgment it sets forth was made openly before him by the parties in person. Having a high legal character it must be so framed as to be certain, and must show itself to have all the qualities which warrant courts, in acting on it as a record, not to be contra- dicted. No such loose words as "attested and approved" can give it these characteristics. Id. lb. 894 PROCEEDINGS IN CRIMINAL CAUSES. [CHAP. Disturbances and affrays in presence of the justice. Given under my hand, this day of , in the year 18—. G. H., Justice of the Peace. If the magistrate, on examination, shall be satisfied that there is na just cause for the complaint, he must discharge the accused and render judgment, in the name of the state against the party com- plaining for the costs of the prosecution. Execution may issue and tho costs will be collected as in 'civil cases." Sec. XIII. Disturbances and affrays in presence of the justice. Every person who, in the presence of a justice of tho peace, mayor, or police judge, shall make an affray, that is, fight at a public place to the terror of others, or shall threaten to kill or beat another, or to commit any offense against the person or property of another, and every person who, in the presence of any such magistrate, shall contend with hot and angry words, to the disturb- ance of the peace, may be ordered without process, or any other proof, to give such security as above mentioned in tho preceding section of this chapter, and in case of failure or refusal, he may be committed in like manner as therein mentioned.* The form of the recognizance and mittimus maybe as follows: No. 128.] Form of recognizance to answer for disturbance or affray, etc., in presence of the magistrate. Follow the form of recognizanpe, ante page 882, to the asterisJc,X and then proceed to state the disturbance or other offense committed in the presence of the magistrate, as thus, if the offense is for contending with hot and angry words: [contending with hot and angry words, in the presence of the undersigned at said county, with one H. H. to the disturbance of the peace ;] and abide the order of the court and not depart without leave, and in the meantime [etc., following the form of recognizance, ante p. 892.] [Signed,] A. B., G. S. Taken and acknowledged before me, this day of , a. u, 18—. ■ G. H., ' justice of the peace. (0) Kev. Stat., ? 7108 , 7112. (d) Bev. Stat., § 7115. LXXIIl.] PROCEEDINGS IN CRIMINAL CAUSES. &95 Qui tarn actions, and suits for fines and penalties. No. 129.] Form of Mittimus for want of bail to answer for an af- fray, etc. The State of Ohio, county, ss. To the keeper of the jail of the county aforesaid, greeting : "Whereas, A. B., late of said county, in the presence of the uu- dcr.signed, G. H., a justice of the peace in and for sai(J;.county did, \Jiere state the dishurhance or affray committed by the ac&used, accord- ing to the facts, as thus, if an affray : unlawfully, and in the pres- ence of other citizens, at said county, fight with one L. M., and make an affray to the terror of others, after stating the disturbance or affray proceed as follows .-] Thereupon I, the undersigned, ordered the said A. B. to giye security in the sum of dollars, for his appearance to answer for said offense before the court of common pleas of said county, on the first day of the next term thereof, and in the meantime to keep the peace, which the said A. B. has failed to do. Therefore, in the name of the State of Ohio, I command you to receive the said A. B. into your custody, in the jail of the county aforesaid, there to remain until he shall be discharged by due course of law. Given under my hand, this day of , A. D. 18 — . G. H., J. p. For a disturbance in court, state the offense thus : The said 0. D., in the presence of the undersigned, at his office in said township, on the day of , A. d. 18—, whilst the undersigned was holding court as justice of the peace, contended with one L. M., and with hot and angry words, saying in a hot and angry manner these words, {Jiere give the words,"] to the disturbance of the' public peace. The justice will enter on his docket his proceedings as in other cases. Sec. XIT. Qui tam actions and suits for einbs and penalties. There are various statutes forbidding certain acts, injurious to the public or to particular individuals, from being done, under certain money penalties, and authorizing private individuals or c(»rpora- tions to sue for the penalties in an action of debt. The same stat- ute that creates the penalty, in general, points out the person who shall be plaintiff. Nothing need be said of such cases, as the jus- tice must simply follow the directions of the statute. Where a stat- 896 PROCEEDINGS IN CRIMINAL CAUSES. [CHA?, Qui tam actions, and suits for fines and penalties. uto creates a penalty, and authorizes a recovery before a justice by an action of debt, but is silent as to the person or corporation in whoso name the penalty shall be prosecuted, the action should, in general, be brought in the name of " the State of Ohio." In such cas«. ho'wever, if tbat which is prohibited, and out of which the forfcit- uie arises, be prejudicial to any particular person, to whom tiie penalty is to be paid, that person may sue and recover in his own name' But if part be given to him, or to any other informer who shall sue, and a part to some other person or corporation, then the suit should be brought by the party aggrieved, or by the informer; who, with the person or corporation entitled to a portion of the j)enalty, should be named in the process, and on the docket — thus : A. B. [the name of the party aggrieved, or the informer,'] who sues as well for [here name the person or corporation entitled to th^ portion of the penalty,'] as for himself Where the penalty is to be paid over, when recovered, to a par- ticular fund, or to a particular officer or coriDoration, and the stat- ute is silent as to who shall sue, perhaps the safest course will be to bring the suit in the name of the State of Ohio, for the use of the fund, corporation, or person named in the statutes The State of Ohio is always the plaintiff in proceedings of a strictly criminal nature; and the above remarks are applicable only to certain statutes which create a penalty or forfeiture in the nature of a debt. Thus, if a person drive faster than a walk over certain bridges, he is liable to a penalty of not less than one, nor more than five dollars, which may be recovered by the owner of the bridge. It is to offenses of this and the like nature that the above observations are particularly applicable. When a court, justice, or other magistrate is vested with power to fine any offender and shall have rendered judgment for such fine, such court or officer may issue execution for the same, with costs taxed against the party offending, to be levied on the goods and chattels of such offender, and, for want thereof, upon the body of (f) 13 Petersd. Ab. 278, note; Holt, (g) 5 East, 315; 1 Chitty^s Plead. 128 610 i 5 Mod. 313. (6 Am. ed.) LXXIII.] PROCEEDINGS IN CRIMINAL CArSES. 897 Qui tarn actions, and suits for fines and penalties. Baid offender ; and the officer in whose hands siich execution is placed for service may pursue and-arrest such person in any county in the state, and convey him to the county whence the execution issued, there to be committed to the jail of said county until the fine and costs are paid, or secured to be paid, or the offender other- wise discharged according to law. If the offender has left or re- sides out of the county in which the judgment is rendered, the oxowuioii ill suc:h case maybe issued by trie court or the miigis- traic, directed lo the sheriff of the county where the offending party resides or may be found, or where ho may have property ; and the sheriff will serve the same by taking the body of the offender, and convey him to the county whence such execution issued, and commit him to the jail thereof, and deliver to the sher- iff of the last-named county a certified copy of such execution, whose duty then is to hold and imprison the offender until such fine and costs are paid, or secured to be paid, or he is otherwise discharged according to law.' Form of sentence and judgment for fine and costs. Enter the proceedings on the docket previous to the judgment and sentence, as in the preceding forms, according to the facts, and then proceed as follows: I do find the defendant guilty as above charged, and do sentence him to pay a fine of dollars and the costs, herein taxed at dollars and cents. If ordered to he committed, add: and that he bo imprisoned in the jail of county until said fine and costs be paid or secured to be paid, or the defendant is otherwise dis- charged according to law. Form of mittimus on above order. Follow form,, page 882, to the asterisk, % and then recite the above sentence and judgment, after which proceed as follows : Therefore, in the name of the State of Ohio, I command you to, receive the said 0. D. into your custody in the jail of the countjy afurcsiiid, there to remain until he pay said fine and costs, or secui *• the same fo be paid, or he be otherwise discharged according Ui law. Given under my hand, this day of , 18 — . G. H._, Justice of the Peace. (i) Rev. Stat., ?? 7328, 7329; 26 Ohio St. 195. As to discharge by county auditor, see Kev. Stat., g 1028. 898 PROCEEDINGS IN CRIMINAL CAUSES. [CHAP. Eeport of fines and penalty for neglect. No. 130.] Form of execution for fine and costs. The State of Ohio, township, county, ss. To C. C, constable of said county: Whereas, on the day of , a. d., 18 — , [naming the plain- tiff, as thus : The State of Ohio] obtained a judgment against 0. D., before me for tlie sum of dollars cents, being a fine for \here state the offense,'] and also recovered the sum of dollars cents, the costs taxed against said 0. D. therein. You are therefore commanded to make the said fine and costs by levj'' upon the goods and chattels of the said 0. D., and for want of the same, upon the body of the said C. D., and him commit to the jail of the county, there to remain until said fine and costs are paid, or secured to be paid, or he be otherwise discharged according to law. Tou will make return of this execution and a certificate thereon, showing the manner in which you have executed the same, in thirty days from the time of your receipt hereof. Given under my hand, this day of , 18 — . G. H., J. p. The rules in relation to costs, J stay of execution,^ and an appeal,' have already been stated. Upon conviction under an ordinance, a bill of exceptions may be taken, or a statement of the facts must be entered on the docket or record at the request of any party. In all summary convictions by a justice, punished by fine or imprisonment, bills of exception must be signed and sealed by him." His fees are ten cents for signing and sealing the bill ; and for copying and certifying the transcript of his proceedings and the bill of exceptions, ten cents for every hundred words, to be taxed in the bill of costs, and col- lected as other costs are collected.™ Sec. XV. Eeport op fines and penalty for neglect. Every justice must make out, annually, on or before the first day (j) See pp. 233-235. to the petition in error, etc., (k) See p. 258. see Kev. Stat., I 7366 et soq., (1) See p. 238. 614. (m) Kev. Stat., §§ 614, 615, 1752. As LXXin.J PEOOEEDINGS IN CRIMtNAL CAUSES. 899 Criminal docket. of February, and- deliver to the auditor of the county, a statement, in writing, of all fines assessed by liim for the year ending on the first day of January next preceding ; containing in each case the name of the party, the amount of the fine, the costs thereon, the time when assessed, whether execution has issued, the return thereof, or if no execution has been issued, the reason for not issuing the same. If any fine has been made and collected, the justice must produce to the auditor the receipt of the proper ofiicer for the payment of the same. In case no fines have been assessed by the justice for the aforesaid period, he must, notwithstanding, report that fact at the time mentioned." The statement must be certified by the justice to be a true and correct transcript from his docket; and he must in the same re- port make like statements as to all causes in which, prior to said year, fines were imposed, which, or any part thereof, have been col- lected within the year." All fines collected by a justice must be paid by him, unless other- wise provided by law, to the treasurer of the county where the offense was committed, for the use of such county, within thirty days after the same are collected.? M the justice fails to pay over such moneys, the treasurer of the county is required to sue for the recovery of the same, with interest, and the court is required to add ten per cent, to the amount the justice should have paid over.i Sec. XYI. Criminal Docket. The justice muet provide himself with good and substantial criminal docket, and enter criminal cases with the same particular- ity as is required in his civil docket' as to civil actions, with an alphabetical index of all defendants, and references to the pages of the entries.^ He may retain out of any fines or other money ■ belonging to the county that comes to his hand in criminal pro- ceedingsthe amount paid for the criminal docket, returning his re- ceipt instead of the money ; but criminal dockets received from a predecessor, if suitable, must be first used so far as they have blank leaves.' The personal representative of the justice, in case of his resigna- tion, removal, or the expiration of his term without re-election, or in (o) Eev. Stat., ? 619. (r) See ante, p. 207. (p) Eev. Stat., g 617. (s) Eev. Stat., § 611. (q) Eev. Stat., g 618. (t) Eev. Stat.. ?§ 613, 612. 57 900 PBOCEEDINCiS IN CRIJIINAL CAtTSES. Ci'iiiiiiiiil docket. case of his death, .must deposit his criminal docket with his suc- cessor in office, or if there be none, then with the clerk of the town- ship ; and the trustees of the township will designalte the justice to whom it naust be delivered. With the docket will be delivered all other dockets and papers, and the justice receiving the docket may proceed with pending causes as if originally commenced be- fore him.* (u) Eev. Stat., §5 613, 612. PART IV. COETEYANCES, AGREEMENTS, WILLS, ETC. LXXIV.] lOBMS OF CONVEYANCES, ETC. 903 Subject of chapter. CHAPTEE LXXIV. CONVEYANCES, AGREEMENTS, WILLS, ETC. Sec. I. Eequisites of instruments affecting lands. 1. The signing, sealing, attestation, and acknowledgment. 2. Power of attorney to affect land, and their record. 8. Instruments made in other states. 4. Eecording of deeds, mortgages, etc. n. FoEMS OF vaeious instruments. 1. General warranty deed. 2. Eelease, or quit-claim deed. 3. Mortgage. 4. Short lease. 6. Long lease. 6. Power of attorney to sell lands. 7. Power of attorney to lease lands. 8. Power of attorney to collect debts. 9. Warrant of attorney to confess judgment in the court of com- mon pleas. 10. Articles of partnership — Limited partnership. See ante, p. 684. 11. Arbitration bond and award. 12. Common bond with a condition. 13. Indentures of apprenticeship. 14. Bill of sale, and mortgage of goods and chattels. 15. Promissory note. 16. Bill of exchange. 17. Eelease and receipts. 18. Agreements. ni. Last will and testament. 1. General requisites of a will. 2. Porm of a will. 8. Form of a codicil to a will. 4. A short will. 904 POEMS OV CONVETANOE, BTO. [CHAP. Bequisltes of instruments affecting lands. Seo. I. Eequisites or instruments affecting lands.(I) 1. The signing, sealing, attestation and acknowledgment. — The act to provide for the proof, acknowledgment and recording of deeds, and othersinstruments of writing, provides,' that when any man above the age of twenty-one years, or female above the age of eighteen years,'' shall execute, within this state, any deed, mortgage, or other instrument of writing, by which any landj tenement, or hereditament, shall be conveyed, or otherwise affected or incum- bered in law, such deed, mortgage, or other instrument of writing, must be signed and sealed by the grantor or grantors, maker oi- makers ; and such signing and sealing must be acknowledged by such grantor or maker, in the presence of two witnesses, who must attest such signing and sealing, and subscribe their names to such attestation ; and such signing and sealing, must also be acknowl- edged by such grantor or grantors, maker or makers, before a judge of a court of record in this state, or a clerk thereof, a county sur- veyor, a justice of the peace, notary public, mayor, or other pre- siding officer of a municipal, corporation, who must certify such ac- knowledgment on the same sheet on which such deed, mortgage, or other instrument of writing may be printed or written, and must subscribe his name to such certificate." When a husband and wife, she being eighteen years of age or upward, shall execute, within this state, any deed, mortgage, or other instrument of writing, for the conveyance or incumbrance of the estate of the wife, or her right of dower in any land, tenement, or hereditament, situate within this state, such deed, mortgage, or other instrument of writing, must be signed and sealed bythe hus- band and wife ; and such signing and sealing must be attested and acknowledged in the manner prescribed by law. And in addition thereto, the officer before whom such acknowledgment shall be made, must examine the wife separate and apart from her husband, and must read, or otherwise make known to her, the contents of such deed, mortgage, or other instrument of writing ; and if, upon such separate examination, she shall declare that she did voluntarily (c) Eev. Stat., §? 4106, 1175. See § 4149. (1) The following is a good conveyance, when duly executed and acknowl- edged: "I, A. B., for one dollar paid by C. D., do grant and convey to him and his heirs in-lot No. 245, in Columbia." 4 Kent's Com. 261. LXXIV.] POEMS OF CONVEYANCES, ETC. 905 Bequisites of instruments affecting landa. sign, seal, and acknowledge the same, and that she is still satisfied therewith, such officer must certify such examination and declara- tion. of the wife, together with the acknowledgment as aforesaid, on such deed, mortgage, or other instrument of writing, and sub • scribe his name thereto.* 2. Powers of attorney to affect lands, and their record. — All powers of attorney authorizing the sale, conveyance, or mortgaging of any real estate, must be signed, sealed, attested, acknowledged, and cer- tified, in the manner before pointed out in the case of deeds, mort- gages, etc. ; and when the right of the wife in lands is to be con- veyed or relinquished, she must join her husband in the execution of the power of attorney for that purpose, which power must be executed, attested, and acknowledged, agreeably to the above re- quisitions.^ A conveyance made under a power executed as aforesaid, must contain the name of the wife, and will divest her of all claim to the estate ; provided, that the wife may, at any time before a sale and conveyance, revoke such power, so far as it relates to her in- terest ; but such revocation does not take efieet until recorded in the county where the lands are situate.' All powers of attorney authorizing the execution of any deed, mortgage, or other instrument of writing, for the sale, conveyance, or incumbrance of any lands, tenements, or hereditaments in this state, must be recorded in the office of the recorder of the county in which such lands, tenements, or hereditaments are situated, previous to such sale, or the execution of such deed, mortgage, or other instrument of writing, by virtue of such power of at- torney.s 3. Instruments affecting lands made in other states. — ^All deeds, mortgages, powers of attorney, and other instruments of writing, for the conveyance and incumbrance of any lands, tenements, or hereditaments situated within this state, executed and ackuowl- cdgcd, or proved in any other state, territory, or country, in con- formity with the laws of such state, territory, or country, or in (d) Ksv. Stat., §4107. As to infor- (e) Eev. Stat., H108. raalities in the execution, etc., (f ) Eev. Stat., § 4109. of a deed, etc., by attorney, etc., (g) 74ev. Stat., § 4132. Kev. Stat., g§ 4110, 4144, et seq. 9^6 FORMS OF CONVEYANCES, ETC. [CHAP Requisites of instruments affecting lands. conformity with the laws of this state, shall be as valid as if executed within this state, in conformity with the foregoing pro- visions.'' It may be acknowledged before a United States consul resident abroad, or a commissioner appointed for that purpose by the governor of this state.'' 4. Becording of deeds, mortgages, etc. — All mortgages executed as above mentioned, must be recorded in the ofSce of the recorder of the county in which such mortgaged premises are situated, and will take effect from the time they are delivered for record — and if two or more mortgages are presented for record on the same day, they take effect from the order of presentation for record ; the first presented must be the first recorded, and the first recorded will have preference.' All other deeds and instruments of writing for the conveyance or incumbrance of any lands, tenements, or hereditaments, exe- cuted agreeably to the foregoing provisions, must be so recorded within six months from the date thereof; and if such deed or other instrument of writing be not so recorded within the time herein specified, the same will be deemed fraudulent, so far as it relates to any subsequent bona fide purchaser having, at the time of making such purchase, no knowledge of the existence of such former deed or other instrument of writing : provided, that such deed or other instrument of writing may be recorded after the expiration of the time herein set forth, and from the date of such record, will be no- tice to any subsequent purchaser.' Nothing in the laws above referred to can be construed to afiect the validity of any lease of school or ministerial lands, for any term not exceeding ten years ; or of any other lands, for any term not exceeding three years ; or to require such lease to be attested, acknowledged, or recorded.^ All deeds, mortgages, and other instruments of writing hereto- fore executed, in conformity with the provisions of the laws in force at the time of their execution, will be valid as if executed accord- ing to the provisions of the laws above mentioned.' (h) Rev. Stat., ? 41H. (k) Rev. Stat., § 4112. ( i) Rev. Stat., I 4133. ( 1) Eev. Stat., § 4146, el seq. (j) Eev. Stat., § 4134. LXXIV.] FORMS OF CONVEYANCES, ETC. 907 General warranty and release or quitclaim deeds. Sec. II. Forms of various instruments. 1. General warranty deed Know all men by these presents, that we, A. B., and C. B., wife ot said A. B., of the county of , Ohio, in consideration of the •sum of dollars, in hand paid by E. F., of the same place, have bargained and sold, and do hereby grant and convey unto the said E. F., his heirs and assigns, forever, the following premises, situate in the county of , in the State of Ohio, and in the , [efc.,] and bounded and described as follows : [here give a descrip- tion of the premises by metes and bounds.'\(V) To have and to hold said premises, with the appurtenances, unto the said E. F., his heirs and assigns, forever.* And the said A. B., for himself and heirs, doth hereby covenant with said E. F., his heirs and assigns, that he is lawfully seized of the premises aforesaid ; that the premises are free and clear from all incumbrances whatsoever(2) ; and that he will forever warrant and defend the same, with the appurtenances, unto the said B. F., his heirs and assigns, against the lawful claim of all persons whomsoever. In testimony whereof, the said A. B. and C. B. have hereunto set their hands and seals, this day of r, in the year of our Lord one thousand eight hundred and . Signed, sealed, and acknowledged in' presence of edged in") E. S. [ T. U. 3 A. B. [seal.] C. B. [seal.] For the form of the acknowledgment, see page 331. 2. A release or deed of quitclaim. Know all men by these presents, that we, A. B., and 0. B., wife of said A. B., in consideration of the sum of dollars in hand paid by E. F., do hereby remise, release, and forever quitclaim, unto the said B. F., his heirs and assigns forever, all our title, in- terest, and estate, legal and equitable, in the following premises, with the appurtenances, situate in [e terms of credit, and to such person or persons as he shall think fit, the whole or any part of the following premises, situate in , [efc.,] and bounded -and described as follows: \here describe the premises.']' Hereby ratifying and confirming all such bargains, receipts for purchase-money, agreements, and deeds, as shall be made, executed, or acknowledged, in the premises, by our said attorney, the same as if wo were personally present and did the same. In witness whereof, etc. For the form of the acknowledgment, see page 331. This power of attorney should be executed, acknowledged, and recorded in like manner as a deed. See pages 904, 905. An attorney should sign a deed or other instrument thus : A. B. \the name of the 'principal^ [seal.] by E. P., his attorney in fact.(l) [seal.] 7. Power of attorney to lease lands. Know all men by these presents, that I, A. B., of , do hereby constitute and appoint E. F., of , my attorney, for me and in my name to demise, lease, and to farm let, by leases, duly executed, for such term or number of years, to such person or persons, at such yearly or other rents, in money or kind, as he may think fit, the following premises, or any part thereof, situate in , [ete.,] and bounded and described as follows : {here describe the premises:] Hereby ratifying and confirming all such agreements, receipts for rent, leases, and other things, which shall be made, executed, or acknowledged in the premises, by my said attorney, the same as if I were personally present, and did the same. In witness whereof, etc. For the form of the acknowledgment, see page 331. This power of attorney should be executed, acknowledged, and recorded in like manner aa the preceding power of attorney to sell land. " (1) See p. 842, and Bev. Stat., § 4110. 912 FORMS OF CONVEYANCES. ETC. [CHAP, Power of attorney — "Warrant of attorney — Articles of partnership. ■ 8. Power of attorney to collect debts. Know all men by these presents, that I, A. B., of , do hereby constitute and appoint E. P., of , my attorney, for me and in my name, and.for my use, to collect by suit or otherwise, and upon payment to him to receipt for (by release, under seal, or otherwise,) nil debts or demands whatsoever due or owing to me ; and es- pecially [here may be stated any particular debt which the attorney is to collect, though such statement is not, in general, necessary.] What- soever my said attorney shall lawfully do in the premises, I do hereby confirm, the same as if I was personally present, and did the same. In witness whereof, etc. 9. Warrant of attorney to confess judgment in the court of common pleas. I do hereby authoi-ize and empower A. B., [here naming an at- torney at law,] or any other attorney at law in the State of Ohio, to appear in any court of record in said state, at any regular term of such court, and waive the issuing and service of process, and con- fess a judgment against me, and in favor of 0. D., for the sum of dollars and cents, and costs, with interest from this date, to the time of the rendition of said judgment, and thereupon to release all error, and waive all right and benefit of appeal in my behalf. January 7, 1875. Y. X. [seal.] 10. Articles of partnership. Articles of partnership made this day [etc. J, between [names of partners']. WJtnesseth : 1. The parties hereby form a partnership, for the period of -r-. — years from the day [etc.], under the firm name of A. B. & Co., in the trade and business of , at . It may be terminated at any time by either of the partners, on six months previous written notice. 2. The capital is fixed at dol- lars, and brought in by the partners in the following proportions : [State, and when to be paid, and interest account] 3. The profits and losses shall be apportioned as fallows : [State, and when profits to be divided.] 4. Each partner may draw from the concern for his own use, not exceeding, in the aggregate, in any quarter, the sum of , on which interest, at the rate of per cent, per annum, shall be charged in the division of profits, etc. 5. A full inventory and balance sheet shall be made up on [etc.] next, and on the same day of each year thereafter, and a record thereof kept. 6. Each LXXIV.] FORMS OF CONVEYANCES, ETC. 9l3 Arbitration bond. partner shall give his entire time to the business of the firm without charge, except actual traveling expenses on firm business, of which the items shall be promptly rendered before reimbursement. 7. No partner shall make himself personally liable, or sign individually for any one any instrument, as surety, guarantor, or the like, with- out first obtaining the written consent of the other partners. 8. "Upon the dissolution of the partnership from any cause [but death, see ante, p. 677], the property and assets of the concern and its good will shall be disposed of, and its liabilities settled as follows : IState.} 12. Arbitration bond and award.Q.} ARBITKATION BOND. Know all men by these presents, that I, A. B., am held and bound to C. D., in the sum of dollars, for the payment of which I do hereby bind myself. Sealed with my seal, and dated this day of , in the year . The condition of this obligation is such, that if said A. B., or his executors or administrators, on his or their part and behalf, should abide by and pei-form the award of E. F., G-. H.. and I. J., or any two of them; (2,) and which arbitrators have been chosen by said A. 1\, and C. D., to award and determine all differences, damages, claims, and demands whatsoever, both in law and equity, nowex- isting between them,(3) so as the said award be' made in writing, ander the hands of the said arbitrators, or any two of them, and ready to be delivered to said parties, on or before the day of A. D. , and the said arbitration to be held at the office of K. M., in the townsliip of , in the county of , on the day of , A. D. , the arbitrators having liberty there- after to adjourn from time to time, but not beyond the period above (1) As to arbitrations generally, see p. 385, et seq. (2) If three arbitrators are mentioned, omit the part between the two stars. (3) As to the effect of these general words used in the submission, see p. 389, If the parties wish to confine the award to a particular difference, a brief state- ment of that difference should be given in the bond, in the place of these gen- eral words. 914 FORMS OF CONVEYANCES, ETC. [CHAP. Award. mentioned, for the delivery of the said award; and in case the said arbitrators should not be able to agree, if the above-bound A. B., or his executors or administrators, on his or their part, should in all things abide by and perform the umpirage of Gr. H., a person indifferently chosen by the said parties, [or, if the umpire is to be appointed by the arbitrators, instead of saying "Gr. H.," say, of such other person as said arbitrators shall verbally or otherwise at any time appoint,] as umpire in the premises, so as the said umpire make his umpirage in writing, and ready to be delivered to the said parties on or before the day of , A. d. , then the above obligation to be void and ofnoeifect; otherwise to be and remain in full force and virtue in law. [Sere add, if the award is, to be made a rule of court : and the said A. B. doth hereby con- sent and agree that this, his submission, shall or may be made an order or rule of the court of common pleas of county .](1) AWARD BY THREE ARBITRATORS. Whereas, differences have arisen between A. B. and 0. D., and they, on the day of , A. D. , [date of the arbitration bond,"] by arbitration bonds, then executed by them, submitted to the undersigned to determine and award upon [here stating what matters are submitted to them, as thus: all differences, damages, claims, and demands whatsoever, both in law and equity then ex- isting between them.] In pursuance of said submission, the undersigned arbitrators met at [here state the time and place directed by the arbitration bonds for the first meeting of the arbiirators,\ (the parties being present,) and having then and there taken upon ourselves the burden of said sub- mission, heard the proofs and allegations of said parties, and ad- journed to meet at the same place on the day of , then next; and at the time and place last mentioned we again met, [the par- ties being present.] And now, at the time and place last men- tioned, the undersigned do'hereby make and publish the following as their final award in the said premises. We do order, adjudge, [I lid award : First. That the said A. B., on or before the day of , in tlio year , pay the said 0. D. the sum of . Second. That the said 0. D., upon receiving the said sum of - dollars, execute to the said A. B., a release under seal, of all ae- (1) See, aa to awards, being made a rule of court, Rev. Stat.§ 5601, et aeq. LXXIV.] FORMS OF CONVEYANCES, ETC. 915 Common bond — Indentures of apprenticesRip. mands, claims, aild damages whatsoever, both in law and equity, which existed between them at the time of the execution of said arbitration bonds, [stating the matters awarded.'] In witness whereof, we have hereunto set our hands, this day of , A. D. . [Signed,] There should be duplicates made of the award, and one delivered by the arbitrators to each of the parties.'" 13. Common Bond, with a Condition.(l') Know all men by these presents, that I, A. B., am held and firiply bound unto 0. D., in the sum of dollars, for the pay- ment of which I do hereby bind myself. Sealed with my seal, and dated this day of , a. d. . The condition of this obligation is such, that whereas, the said A. B. hath agreed to [here state what the obligor has promised to do, and when he is to perform.'] Now, if the said A. B. shall faith- fully perform the several matters and things above mentioned at or before the time above mentioned, then this obligation to be void; otherwise to be and remain in full force. A. B. [seal.] 14. Indentures of apprenticeship. Indenture of apprenticeship between A. B.j [ihe name of the parent or guardian,] and C. D., [the name of the master, or officer, or (m) Kev. Stet., g 5607. (1) For the form of a bond for tbe payment of money, see p. 698. Official bonds made since February 25, 1869, are legal and binding, although signed and sealed when the penal amounts are in blank, if such blanks are filled up before or at the time of their approval and accepiance ; and such filling up may be done in the absence of the obligors, and without any express authority from any of the obligors. And this rule applies to all official bonds of officers, and to bonds of executors and administrators, and guardians; to all bonds required or authorized to be taken by or before any court, judge, public board, or officers, judicial or ministerial, such as sheriifs, constables, etc. ; to all bonds of indem- nity; and to all other bonds Qonditioned to become void on the performance by the parties thereto, of all the conditions and stipulations therein contained. Of course, every person, officer, or board still retains any right or power pos- sessed by him or it, to require all parties to such bonds to be present before him or it at the time of the execution of such bonds. 66 v. Laws, 15, 16 ; K. S., i 6. 58 916 FORMS OF CONVETANCES, ETC. [CHAP. Indentures of apprenticeship. official name of officers, as, " The Trustees of township,"] and B. F., [ifAe name of the apprentice,'] witnesseth : The said ]E- F., \the apprentice^ aged years, on the day of , in the year , by and with the consent of the said A. B., his guardian, [or say, his father, as the case may be,"] hath and doth hereby bind himself as an apprentice unto the said 0. D., until the day of , in the year , from the date hereof, to learn the trade and occupation of a -^ — . And the said B. P., for himself, and [omit the words " for himself and," if the child is too young to understand the nature of the inden- ture,"] by his said guardian [or father,] doth hereby covenant with said 0. D., to faithfully serve him, and correctly demean himself during the term of his apprenticeship. And the said C. D. doth hereby covenant with said A. B. and E. F., and each of them, that he will teach the said B. F. the said trade and occupation, and will provide him, during said apprentice- ship, with meat, lodging, medicine, washing, clothing, and all other necessaries suitable for an apprentice. And the said C. D. doth hereby further covenant with the said A. B. and E. F. that he will send the said E. F. to a common school for at least twelve weeks in each school year during his said apprenticeship [after he arrives at eight years of age. [ Whether the apprentice be a male or female, add the following .•] And at the expiration of said term of service will furnish the said E. F. with a new bible, at least two suits of good clothes, and [here insert whatever other things the master is to give the apprentice at the expiration of the term of service.] In testimony whereof, the parties have hereunto set their hands and seals, this day of ^, in the year 18 — . 4.. B. [seal.] C. D. [seal.] E. F. [seal.] The indentures must be signed and sealed by the father, or in ease of his death, by the mother or guardian." If the indenture is made by the trustees of the township, their (n) See p. 878. tXXlV.] FORMS OP CONVEYANCES, ETC. 917 Mortgage of goods — Bill of sale — ^Promissory note. names must be inserted in the place of the guardian or father in the preceding form'; and they should be described as the '• Trus- tees of township, county;" and it should also be stated in the indentures that the child is either "a destitute orphan, of township, in county," or " the child of E. S., who will not provide for it."(l) 15. Bill of sale, and mortgage, of goods and chattels." In consideration of the sum of- dollars in hand, paid by C. !>., I have bargained and sold, and do hereby sell and convey to said C. D., the goods and chattels mentioned in the schedule hereto annexed.* In witness whereof, etc. A. B. [seal.] Schedule of property referred to in the above bill of sale : [^Eere give a schedule of the jproperty.'\ If the sale is by way of mortgage, add the following condition at the*: Provided always, and these presents are upon this condition, that, whereas the said A. B. is indebted to the said C. D. in the sum of dollars and cents, payable on the day of ,in the year , with interest from , by note of even date herewith, for [here state particularly how the debt arose.] Now, if the said A. B. shall punctually pay said sum of money, with the interest, when the same shall become due, then this con- veyance to be void ; otherwise to be in full force. The said A. B. is to retain possession of said property until said debt becomes due, and upon default of payment of said moneys, shall redeliver the said property to the said 0. D. {Add statements, etc. See forms, ante, pp. 645, 651.J . 16. Promissory note. For value received, I, [or, if there be two who sign the note, say we, or either of ns,] promise to pay C. D., or order, dollars and cents, on or before the day of , in the year , with interest from date. A. B. Columbus, January 7, 18 •. (o) See p. 648, et seq. (1) As to what statements and stipulations should be contained in indentures, etc., see pp. 377, 378. 918 POEMS OF CONVETANOES, ETC. [OHAP. Bill of exchange — Keceipt — Agreements. / 17. Bill of exchange. Columbus, January 7, 18 . Thirty days after date, pay A. B., or order, dollars •cents. C. D. To C. S. 18. Belease and receipts.(l) RELEASE. In consideration of the sum of one dollar, received of C, D., I do hereby release him from all actions, claims, damages, and demands whatsoever, which I now have, or ever had, or which my heirs, ex- ecutors, or administrators shall have, from the beginning of the world to the day of the date hereof. Jtinuary 4, 18 . [seal.] RECEIPTS. Eeceived of C. D., the sum of dollars, in full of all demands to this date. January 4, 18 . Eeceived, January 4, 18 , of C. D., the sum of , on a certain bond made by him to me, dated , and which is indorsed thereon. 19. Agreements. COMMON FOEM OF AN AGREEMENT. (2) Articles of agreement entered into this day of , in the year , between A. B. and C. D. : The said A. B. doth hereby covenant and agree with said C. D., to do and perform the matters and things following : 1st. He- will, on or before the day of , in the year, [etc. Here state all that A. B. is to do."] And the said 0. D. doth hereby covenant and agree with said A. B., to do and perform the' matters and things following: [etc. Sere state all that 0. D. is to do.'] (1) As to the effect of a release or receipt, see p. 330. (2) It is in all cases advisable, when a change in the terms of a written or sealed contract is agreed upon, to indorse it upon the instrument, and have it signed, and also sealed by the parties, if the original contract is under seal. It is not uncommon for parties to reduce part of a contract to writing, and leave a part to a verbal understanding. It is much better not to enter into any written agreement j for the part that is written will, in general, be deemed the whole a^eement. LXXIV.] FORMS OF CONVEYANCES, ETC. 919 In witness whereof, the said parties have hereunto set their hands and seals. A. B. [seal.] 0. D. [seal.] AN AGREEMENT FOR THE SALE OF LAND. Articles of agreement, entered into this day of , in the year , between A. B. and C. D , witnesseth : That said A. B. hath sold, and doth hereby agree to convey in fee-simple, unto said C. D.. by a good and sufficient deed of general warranty, on or before the day of , in the year , (upon the punctual payment by said C. D. of the consideration money hereafter mentioned,) the following premises, situate in [here mention the range, township, section, lot, entry, or survey,"] and bounded and described as follows : [here insert the boundaries.'] And the said 0. D. doth hereby agree to pay the said A. B. the sum of [here insert the amount of the consideration money,] the consideration money for said premises, in the manner following; dollars, on or before the day of , in the year ; and dollars, on or before the day of , in the year — , with interest annually. The said A. B. hereby agrees that the said C. p. shall have immediate possession of said premises, to use and improve as his own, in a good and husbandlike manner. In testimony whereof, the said A. B. and C. D. have hereunto set their hands and seals. AGREEMENT FOR WORK AND LABOR. Agreement between A. B. and C. T>. The said 0. D. hereby covenants and promises to faithfully work and labor for said A. B. for the term of , commencing on the day of , A. D. , in the business of , and perform such other services and labor as the said A. B. may reasonably require ; for which the said A. B. hereby covenants and agrees to pay said C. D., for said term of service, at the rate of dollars per month, in manner following : [etc.] Either party may put an end to this agreement, by verbal notice thereof, or otherwise ; but in such case the said A. B. agrees to pay the said C. D. for the time he may have worked, at the rate of dollars per month. In witness whereof, the parties have hereunto set their hands and seals, this day of , A. D. . 920 rOEMS OF CONVEYANCES, ETC. [CHAP. Agreements. AGREEMENT FOR BUILDING A HOUSE. An agreement of this kind must be made out as follows : First. A drawing should be made, showing the dimensions of the house, the thickness of the walls, the height of each story, tho dimensions of each room, the doors, windows, fire-places, clothes- presses, pantries, sinks, etc., etc. Second. Specifications of all the work, and the mode in which it is to be done. Third. The agreement between the builder, carpenter, etc., and the employer. A drawing_can not of course be given here ; and practical works containing drawings and all the details of specifications, are now BO accessible, that no one should build an expensive house without either consulting them or an architect. FORM OF AN AGREEMENT FOR BUILDING A HOUSE. This agreement between A. B. and 0. D. witnesseth : That the specification hereunto annexed, marked Ifo. — , and every clause thereof, is made a part of this agreement ; and said C. D. hereby agrees, on or before the day of , in the year , at , to do, perform, finish, and complete, in the manner therein stated, all the work set forth and referred to in said speci- fication. The work to be commenced on the day of . A. D. . And the said A. B. agrees to furnish all the materials Inecessary for said work, as the same shall be wanted ; and to pay said 0. D. for said work, reference being had to said specification in the admeasurement of said work, as follows : \here state the ■pay- ments^ If any alteration of, or addition to said building, or any part thereof, should be directed by said A. B., such alteration or addi- tion shall be estimated by deducting ten per cent, from the CinciU' nati bill of prices for the like work, and paid for by said 0. D. ac- cordingly; and if by such alteration or addition any work included in said specification is not done, the value of such work shall be deducted from the price agreed to be paid for the whole, and esti- mated in like manner as last mentioned. C. D. shall dismiss any hands employed by him in said work, whenever said A. B. shall so direct. In witness whereof, etc. LXXIV.] FORMS OP CONVEYANCES, ETC. 921 Wills. Sec, III. Last will and testament. 1. General requisites of a will. — A last will and testament, in order to be valid, must, in general, be signed by the party making the same, at the end thereof, or by some other person, in the pres- ence of the testator, by his express direction ; and must be attested and subscribed in the presence of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge the same.? A male under the age of twenty-one years, and a female under the age of eighteen years, can not make a will.iv/ Devises and deeds of conveyance of real estate must be made to some person or persons in being, or to the immediate descendant or descendants of such as are in being at the time of making the will or deed, and if an estate is given and limited to certain issue . of a particular person so as to create and limit an estate in a cer- tain line of descendants, the estate will notwithstanding become an absolute estate in the issue of the first donee, to whom and to whoso special heirs the estate was limited. Upon this subject the statute to restrict the entailment of real estate provides : " No estate in fee-simple, fee tail, or any lesser estate in lands or tenements, shall be given or granted by deed or will to any person or persons but such as are in being, or to the immediate issue or descendants of such as are in 'being at the time of making such deed or will ; and all estates given in tail shall be and remain an absolute estate in fee-simple to the issue of the first donee in tail."^ The evil against which this statute is directed is the perpetuating the estate in the issue of the first donee in tail, and, to effect this, restricts the entailment to the immediate issue of such firstdonee, and, on the determination of the interest of the first donee, in the estate and of such rights as the law annexed to it, while held by him, the statute enlarges the estate tail, in the hands of such i.ssue of the first donee, into an absolute estate in fee-simple. Hence, the first donee in tail under the statute, holds not merely a life estate, but an inheritable estate; so that the issue of the firstdonee in tail during the life of the first donee has no right or estate which he can transfer,' and if the first donee in tail is a married woman, (p) Eev. Stat., § 5916 and note. (s) 24 Ohio St. 416; 7 Conn. 250; 17 ,^q) Kev. Stat., ?? 3136, 5914. Ohio St. 447. (r) Eev. Stat., I 4200. 922 FORMS OF CONVEYANCES, ETC. [CHAP. Wills. hor husband will, upon her decease, be entitled to curtesy,' and the wife of the first donee in tail will, upon his decease, be entitled to dower; but the first donee in tail can not convey an estate that would endure beyond his own! life.' The statute' provides that any person of full age and sound memory, having an interest in lands, tenements, or hereditaments, or any annuity or rent charged upon or issuing out of the same, or any goods, chattels, rights, credits, chosesin action or possession, or any other property of any description whatever, may give and devise the same to any person, by last will and testament, lawfully executed ; subject, nevertheless, to the rights of creditors, and to the provisions of this act, and of an act entitled " an act to restrain the entailment of real estate;" provided, that if such testator or testatrix shall die, leaving issue of his or her body living, or their legal representatives, or shall leave an adopted child or children living, or their legal representatives, and said will give, devise, or bequeath such estate, in whole or in part, to any benevolent, relig- ious, educational, or charitable purpose, or to any person in trust for any of such purposes, whether such trust appears upon the face of the instrument making such gift, devise, or bequest or not, to the State of Ohio, or any state or country, to any county, township, city, incorporated village, or other corporation or association, in this or. any other state or country, in such case said last will, as to such gift, devise, or bequest, shall be invalid arid void, unless such will (or if contained in a codicil thereto, then such codicil) shall have been duly executed according to law at least twelve cal- endar months prior to the decease of such testator or testatrix. The right of the widow to dower can not be affected by a will, unless there be a devise to her, and the widow, within one year after citation served on her, makes known to the probate court her election to relinquish her dower, and claim under the will." A will may be revoked by the testator tearing, destroying, can- celing, or. obliterating it, with the intention of revoking it, or caus- ing it to be done in his presence ; or by making a subsequent will or codicil, in the manner above mentioned.^ A will made while the testator has no children, will, in general, be void, if he afterward have a child.^ (s) 24 Ohio St. 416; 7 Conn. 250; 17 (u) Eev. Stat., g 5963. Ohio St. 447 ; 27 Id. 86. (v) Kev. Stat., g 5953. (t) Bev. Stat., i 5915. (w) Kev. Stat., ? 5959, et seq. LXXIV.] FORMS OP CONVEYANCES, ETC. 923 Wills. If a witness to a will is a devisee, or a legatee, ahd the will can not be proved except by the testimony of such witness, the bequest or devise will be void; but if the witness would hiive been entitled to any share of the estate, in case such will were not established, ho will be entitled to so much of such shar6 as will not exceed the devise or bequest.^ The testator may direct that an appraisement and sale of his personal property be dispensed with, and that his executor be not required to give bond/ A verbal will is valid in relation to personal property only, and when made in the last sickness of the deceased, and proved by two competent disinterested witnesses, who can testify that the testator was of sound mind and memory, and that he at the same time called on some person present to bear testimony that such was his will.'' Such will, however, will not be valid, unless committed to writing, and subscribed by the witnesses within ten days after it is made, and proved before the probate court within six months from the time the testamentary words were spoken.' The father, or if he be dead or gone to parts unknown, the mother, may, by will, appoint guardians of his or her children, then living or born afterward, during their minority or a less term.* 2. Form of a will. In the name of the Benevolent Father of all : I A. B., of , do make and publish this my last will and testa- ment : Item 1st. I give and devise to my beloved wife, in lieu of her dower, the farm on which we now reside, situate in , [etc.,J con- taining about acres, during her natural life ; and all the stock, household goods, furniture, provisions, and other goods and chattels which may bo thereon, at the time of my decease, I give and be- queath to her absolutely ; [she, however, selling so much thereof as may be suflScient to pay my just debts.] At the death of my said witc, the" real estate aforesaid, I give and devise to my sons, 0. B. and 11. B., and their heirs. If, however, either of my said two sons should die before the decease of my said wife, leaving no children living at the decease of my said wife, then the share of said prop- (x) Kev. Stat., § 5925. (a) Eev. Stat., ? 6992. (y) Rev. Stat., §2 5996, 6074. (b) Eev. Stat., § 6266. {z) Kev. Stat., 2 5991. 924 FORirs OP convetajjces, etc. [chap. Wills. erty above devised tb such dcccuscd son, is hereby devised and be- queathed to my son, S. B., and his heirs. If both my two sons, C. B. and E. B., should die before the decease of my said wife, leav- ing no children at the decease of my said wife, then I devise and bequeath my said prop&rty, after the decease of my said wife, to my two sons, S. B. and L. B., and their heirs. If my said wife should not survive me, then I devise and bequeath the proj)erty aforesaid to my two sons, C. B. and R. B., and their heirs forever. Item 2d. I devise and bequeath to my son, L. B., and his heirs, the farm on which S. R. now resides, situate , [etc.,] containing , [etc.] Item 3(J. I do hereby nominate and appoint my beloved wife guardian of my daughter, M. B., until the said M. B. arrives at the age of years, or intermarries; but in case my wife should again marry, her guardianship of said child shall cease and determine upon her intermarriage; and in her place I do hereby nominate my esteemed friend, P. W., to have the guardianship of my said daughter, until she arrives at the age of , or intermarries. I do hereby nominate and appoint my esteemed friend, P. W., guardian of my sons, B. B. and E. B., until they arrive at the age of twenty- one years. If the said P. W. should die before my said two sons arrive to majority, they or either of them surviving him, then I do appoint L. M. their guardian during their minority after the decease of said P. W. My said guardians are hereby enjoined to give my children a good English education, and to rear them in habits of industry, and inculcate upon them, as far as may be, christiau faith and charity. Item 4cth. 1 do hereby nomiaate and appoint E. M. and L. TV., executors of this my last will and testament, hereby authorizing and empowering them to compromise, adjust, release, and dis- charge, in such manner as they may deem proper, the debts and claims due me. I do also authorize arid empower them, if it shall become necessary in order to pay my debts, to sell, by private sale, or in such manner, upon such terms of credit, or otherwise, as they may think proper, all or any part of my real estate, and deeds to purcliasers to execute, acknowledge, and deliver, in fee-simple. I desire that no appraisement and no sale of my personal prop ertj' be made, and that the court of probate direct the omission of the same, in pursuance of the statute. I do hereby revoke all former wills by me made. LXXIV.] FORMS OP CONVEYANCES, ETC. 925 Codicil — A short will. In testimony hereof, I have hereunto set my hand and seal, this day of , in the year 18 — . A. B. [seal.] Signed and acknowledged by said A. B., as his last will and tes- tament, in our presence ; and signed by us in his presence. E. S. T. U. 3. Form of a codicil to a will. Whereas, I, A. B., on the day of , in the year 18 — , made my last will and testament of that day, do hereby declare the following to be a codicil to the same : I do hereby give and bequeath to , etc. In witness whereof, etc. (1) 4. A short will. First, it is my will that my just debts and all charges be paid out of my estate. Item. I give and devise all the residue of my estate to B., my wife, to be to her and her heirs, forever. Item. I appoint and make the said B., executrix of this my last will and testament. (1) A codicil mtist be signed and witnessed in like manner as a will. INDEX. ABATEMENT OF SUIT— eflfeot of death of parties, and form of docket entry in such case, 42, 43 ; transfer of interest does not abate ac- tion, 43. ABSCONDING DEBTOR— how proceeded against, with forms of process and docket entries, 403, et seq. (see Attachment) ; statute of limita- tions does not run against debt due by, 637. ABSENCE — of justice six months, vacates his office, 10; of debtor, pre- vents statute of limitations from running, 637 ; of plaintiff or de- fendant, or both, at time for trial, effect, 98 ; of justice, at the time for trial, its effect, 101. of witness : from county, of attesting witness to any instrument, what proof of the execution of the instrument may be received, 153; witness failing to attend a trial, how proceeeded against, 94; or failing to attend to have deposition taken, 114. of parties to commercial paper : when absence of maker of note or bond, or the drawee or acceptor of a bill, will excuse demand on them, and when not, 731, 732; when absence of a party to a negotiable instrument, upon whom notice should be served, will excuse notice, and when not^''730, 731. (See Bill of Exchange; Prom- issoRT Note.) ACCEPTANCE OF A BILL OF EXCHANGE— what it is, 713. (See Bill op Exchange.) ACCEPTOR OF A BILL OF EXCHANGE— who is so called, 697. ACCIDENTS— liability for, 656, 657. ACCOMMODATION ACCEPTOR— who is so called, 737, 738 ; his rights, 788. ACCOMMODATION INDOBSER— who is so called, and his rights if to a bill, 738; if to a note, 576 to 578. ACCOMMODATION PAPER-— what is so called, and the rights and lia- bilities of the parties thereto, 737, 738, 576; no notice of demand and non-payment need be given to the party for whose accommoda- tion the paper is executed, 731; when accommodation drawers en- titled to notice, 730; who is liable for costs, 575. (See Surety.) (927) 928 AGO INDEX. ACT * ACCORD AND SATISFACTION— what, 323; must be a consideration for an agreement to compromise, 323, 324 ; what is a consideration, 512; when accepting less than the debt, in discharge of the whole, is binding, and when not, 323 ; an accord must be performed before it will bar an action for the debt or injury, 324, 325 ; payment for goods wrongfully taken makes the goods the wrong-doer's, 834. admissions to obtain not received in evidence, 175. ACCOUNT AND ACCOUNT-BOOK, 327— (as to the rights, etc., of parties when an account is assigned, see Assignments ; as to account for work, see Work and Labor;) assignee of, may sue, 35. what is an account-book, 327, 328 ; may be sued on before a justice, if balance due is less than three hundred dollars, 15; suit on may be joined in one action with other claims, 26 ; in what cases an account-book is admissible in evidence, 326, 327; when the ledger must be produced, 329 ; if voluminous, witness may tes- tify to general balance, from memory, 144; what are proper sub- jects of charge in an acoount-book, 329; when interest may be charged on an open account, 608 ; payments made on, may be ap- plied to the earliest items, 690 ; eflFect of settlement of account as to mistakes, etc., 330 ; when master liable for property sold by servant for him, 339, 340 ; when husband liable for goods sold to his wife, 592, 593. action on, must be commenced within six years, 633 ; when the six years begin to run, 636. (See Limitation op Actions.) bill of particulars must be filed, 20. (See Bill of Particulars.) form of entry on the docket, 30, 209. ACCOUNT STATED — means that the parties met and struck a balance, within what time an action on, barred by the statute, 636. (See Lim- itation OF Actions.) ACKN DWDEDOMEMT— of service of process, 55. (See Evidence.) ACKNOWLEDGMENT OP DEEDS, ETC.— form of, 331 ; may be taken by justice in any township in his county, 13 ; what instruments must be acknowledged, how, etc., .904, 905 ; fees for certificates of, 226. ACT OF GOD — what is so deemed, 656, 451. (See Carrier of Goods.) ACTION — old names and forms abolished, 25 ; joinder of, ib. ; does not abate by transfer of interest therein, 43; docket entries in, 205 to 222 ; action on commercial paper before grace expires, 722 ; dividing cause of action to multiply suits, 202. (See Parties to Action; In- fants; Husband AND Wife ; Partners and Partnership.) Cannot be brought until breach of contract or injury done, 636, n.; except again.st a fraudulent creditor, 435 ; within what time an action is barred by statute of limitations, 633, 634. (See Limitation of Actions) commencement of: how, etc., 45. fSee Summons.) may be without process, 45 ; one partner can not sue his copartner, unless, etc., 681 ; what distinct causes of action maybe joined in one suit, 25, 26 ; joint action against makers and indorsers of ne- gotiable paper, 40". A.DD INDEX. ADM 929 Action — Continued. of trespass to land, in what cases it may be brought, 16. (See Tres- pass TO Lands.) ADDITIOJJAL BOND— of a justice, 7 ; in stay of execution, 261 to 264. ADJOURNMENT OF CAUSE— fees for, 225. when suit is by summons only : for what period the cause may be ad- journed, 87 to 90; form of affidavit for, 88, 89. unauthorized: works discontinuance, 90; of appearance hour, by the justice, 98 ; after case is argued, can not be adjourned for further testimony, unless by consent, 181. on order of arrest : how, and for what period granted, forms, etc., 102-104 ; in action for forcible entry and detention, 547. in criminal cases : how long to be granted, 873 ; docket entry thereof, 875 ; form of recognizance in such cases, and forfeiture, 875, 876 ; form of mittimus on an adjournment, 875 ; order to constable to hold prisoner, 876. ADMINISTRATOES AND EXECUTORS— can alone sue on a contract made to decedent, 37 ; must sue for injuries done decedent's land be- fore his decesise, ib. ; what crops must be taken by them, ib. ; order of arrest can not be issued against, 64; when personally liable on a promise to pay decedent's debts, 336. may transfer and indorse negotiable instruments belonging to deca- dent, 708 ; their liability on such indorsement, ib. ; how liable by continuing share of decedent in a partnership, 671 ; form of affidavit to authenticate account against, 334; general directions as to rejecting claims against estate, 334; how to describe them in a summons, 51 ; when their admissions may be given in evi- dence, 126, 169; reference of claim to arbitration, 336; form of docket entry and judgment in suit against, 219; when liable for costs, 231 ; form of execution against, 273 ; wh^t property may be taken on, 284; form of return to, 305 ; appeal by, how taken, 335; of sister state, may sue and be sued here, ib. ; how made party plaintiff or defendant in place of decedent, 43, 204, 218, 318. liave no power over a ward of decedent, 588 ; have no authority over an apprentice of decedent, 379 ; warranty on sale, 794. form of entry on the docket where plaintiff sues as, 219. how to establish claim by decedent's account-book, 326, 327; in suits by and against, what demands may be set off, 798, 799 ; the rights and liabilities of administrators and executors of husband or wife, for the debts, property, etc., of each, 590, 592, 598 (see Hus- band AND Wipe) ; when statute for limitation of actions operates on claim due decedent, 636, 637. (See Limitation of Actions.) i ADMISSIONS AND CONFESSIONS— of contents of contract can not be substituted for it, 144. general rules, as to : 168 to 177; how received and construed, 176; of a conspirator, 168 ; of an executor or administrator, when binding, 169; by one joint promisor, 168, 169; by a partner, 169; recitals 930 ADU INDEX. AGE Admissions and Confessions — Continued. in deeds, conclusive upon the parties, 170; of assignor and vendor as to property, admissible against claimant under him, 170; of an agent, when conclusive against principal, 171; of a wife not admissible against husband, exceptions, 171 ; upon which others have acted, where binding, 171 to 174; implied from silence, when, 174; to obtain a compromise, not received in evidence, 175; of a criminal not received unless voluntary, 175. (See Evidence.) ADULTERY — when husband liable for necessaries after his wife has committed, 594. ADVERTISEMENT— (see Notice;) fees of constable for writing or set- ting up, 227; of sale on execution, how to be made, and form thereof, 301, 302 ; of the issuing an attachment against a debtor, and how and when to be made, and form thereof, 416; affidavit to prove, ib. by husband, forbidding persons to trust his wife, is, in general, use- less, 593, 594; by partners, of the dissolution of partnership, its effect, 677, et seq. ; by taker-up of stray, when to be made, and form thereof, 804 ; of sale of stray or drift by constable, how to be made, 809 ; of appraisement of stray or drift, 804. AFFIDAVIT — fees for certifying proof of an account against an estate, 225 ; for certifying and administering oath in other cases, ib. ; form of oath to, 180; in what cases admitted as evidence, 123. form of : whereon to issue order of arrest before judgment, 64 to 77; or after judgment, 248 ; or a common state warrant, 867 , or a search warrant, 887; or a warrant to keep the peace, 890; to au- thenticate an account against an estate, 334 ; to procure an ad- journment of a cause, 88, 89; to procure writ of attachment, 405; against a garnishee, 424; to prove notice published, 416; when bail for stay of execution require an execution against the defendant, 260 ; by woman, to obtain warrant against the father of a bastard child, 486; to procure appeal from an award, 199; to change place of trial, 90 ; to establish acpount under mechan. ics' lien law, 630 .of surety or bail to justify, 104, 880. AFFIRMATION. (See Oaths and Apfirmatioxs.) AGENT, SERVANT, AND PRINCIPAL— broker, factor, etc., defined, 337, 338 ; who deemed general and who special agent, ih. ; how agent authorized, implied authority, and its extent, 338 to 342; as to e.xe- cuting instruments under seal, 342, et seq. ; as to making and in dorsing notes, bills, etc., 343 to 345, et seq. ; when principal bound. • though agent deals in his own name, 345; when principal liable for frauds, injuries, negligences, etc., of the agent or servant, or of a ser- vant of the agent, 345, 346 ; personal liability of agent or servant to third persons, 348, 356; when principal or master, and not the agent or servant lialjle, 347 to 349; when there are intermediate agents and servants who must be sued, and who is the superior, 349 A OB INDEX. ANI 931 AoENT, Servant, and Prncipai. — Continued. to 352; when master liable in vindictive damages for acts of a ser- vant, 346, 347 ; when servant or agent is alone liable for his acts, 348, 349 J how far principal liable for negligent injuries done by his sub- ordinates to each other, 352 to 354 ; or for not furnishing them proper implements, fellow-employes, 354, 360; rights and obligations of agent and principal to each other, 358 to 360 ; notice to an agent, 360; revocation of authority and effect of death of principal, 361, 362 ; liability of municipal and quasi corporations for negligence and injuries by officers, 354 to 356, 832. form of acknowledgment of a deed, etc., by an agent, 332, payments made to, 691 ; when debt due from agent or his principal maybe set off, 789, 790; 'what admissions of, bind the principal and master, 171 ; when the wife is deemed the agent of the husband, 595, 171 ; a tender by or to an agent, for his principal is good, 816. AGREEMENT— (see Contracts;) form of, 918 to 921; entry of action without process, 45. AIDERS AND ABETTORS — of an injury to real or personal property> are liable the same as if present, 40. AIR AND LIGHT— prescriptive right to, 18, n. ALLOWANCE — (see Fees and Costs;) how made, ascertained, and recov- ered for keeping a stray, 808, 809; when nothing allowed for keeping stray, 81 1, 804 ; officer keeping, removal, etc., goods, live stock, etc., 227. ALTERATION — (see Amendment;) effect of fraudulently altering a writ- ten instrument by erasure, etc., 526, 527, 741, 749; rights of parties- when a bank pays an altered check, 749 ; what alterations may be made in entries on the docket, 208 ; penalty for altering, 222. AMBASSADORS— of foreign state, and their servants, can not be arrested, and property of, can'not be taken on execution, 62. AMBIGUITY — ^which appears on face of instrument, can not be ex- plained by proof, but if it arises from some fact referred to in the in- strument, it may, 161. AMENDMENT- of the bill of particulars, 30 ; what defects in entries on docket may be amended, 208. by constable, of his return, 86. (See Mistake.) ^ ^ ANIMALS— (see Strays;) property, etc., in wild animals, 363, 364; inju- ries by and to animals, 365 to 370 ; evidence that animals at large with- out fault of owner, 367. trespassing not exempt from execution, 275. liability of owner for injuries by, 365, et seq. ; penalties, 368. effect of license or permit, 366, 367. duties and liabilities of railroad in transportation, 452, 453; injuring by collision with, on railroad, 370 to 375; possession presumed ownership, 370; cruelty to animals, R. S., g 6951; poisoning, R. S., § 6852; maliciously killing, R. S., § 6851 ; animals running at large, R. S., § 4202; diseased sheep, etc., R. S., §g 6855, 4210. 932 APP INDEX. APP APPEAL — may be taken: general provisions as to, 237 to 244; from final judgments generally, 237; from judgment rendered for a penalty, 238 ; from judgment rendered on an award before a justice, and how, 198, 199; in attachment, 421. can not be taken : from contested elections of justice, 5 ; nor from judg- ment rendered in criminal cases, 238 ; nor in certain other cases, 237; within what time to be taken, undertaking for, etc., 238 to 240. when transcript to be filed in court, and effect of not filing it, etc., 240, et seq. ^ Jiow taken, amount of undertaking, and form thereof, 238, 239; by administrators and executors and other trustees, 335, 336. who to pay costs on the appeal, generally, 238. ■what papers the justice must transmit to court, and when, 240; after appeal bond is executed, justice must recall execution, and how, 242 ; can do nothing more until he receives a certificate from thfl clerk of the court, 240, 242. liow justice to proceed if both parties fail to enter appeal in coiirt^ 242 ; or if the appeal is quashed, 242 ; or if the appeal is dismissed, 242. ■when the appeal is not entered, or is quashed, the surety for the ap- peal is discharged, 242 ; action against th« surety, 242, 243. AVPEARANCE TO THE ACTION— may be entered by agreement, 45 ; one hour allowed, 98. appearing to defend the action is equivalent to service and due return pf service, 55, 414 how to proceed when plaintiff", or defendant, or both parties, or the justice, fails to attend, 98, 102. APPOINTMENT — when justice may appoint a constable, and form theroi^ 496, 497 ; fill vacancies in board of trustees df township, 841. APPRAISEMENT AND APPEAISEES— of property exempt from exe- cution, 275, 278. of property taken on attachment, 411. of a stray, 805 ; appointment of the appraisers of decedent's real estate, 333 ; appointment of the appraisers of decedent's personal estate, 334. APPBENTICE AND APPRENTICESHIP— indentures of, a form for, 915; what statement and covenants they should contain, and how executed, 377, 378; effect of omissions or mistakes in this respect, 379, n. 1 ; when to be recorded, and effect of not recording, 379 ; can not be assigned, 383; how canceled, 379, 381, 382. who may be bound out to service, and for what time, 376; who may bind out infants, 376, 377; how apprenticeships may end before the term of service expires, 379; is entitled to medical attend- I ance at expense of master, 380; proceedings against him for bad joonduct, with forms, 382; may be corrected by his master, 383. ABB INDEX. ARE 933 Apprentice and Apprenticeship — Continued. '' proceedings against master for cruelty, neglect, etc., with forms, 380; rights and remedy of master when apprentice is enticed away, harbored, or employed by another, 383 ; costs in proceedings by and against master, how recovered, 382, 383. (See Master and Servant. ) ARBITRAMENT AND AWARD— definitions of, 385; fees relating to. 227; form of common arbitration bond, 913; form of award under an arbitration bond; 914. submission to arbitration : what, 385 ; may be by arbitration bond, ver- bally, or otherwise, 385 ; how and when it may be revoked, 387. of suit pending before a justice : when it may be referred to arbitrators, and form of proceedings, appeal, etc., 195 to 199; fees of, 197, 227. award: what, 385; when void, 386 to 388; when void in part and good in part, 388 ; the effect of a valid award as a defense to an ac- tion brought upon the matter submitted, 388 to 390. an award can not be made a rule of a justice's court, 385. ARGUMENT— upon a trial, 181. JlRREST— order of, defined, requisites of, 61. on civil process before judgment : who are privileged from, 61 to 64; by whom, when and where made, 79 to 84; proceedings upon, before trial, 102 to 106 ; deposit of money, or undertaking, discharges, 247; irregularity in issuing a writ, when it excuses an arrest, 501, 502; must not be served if defendant is sued by a wrong name, 84 ; after return of no goods, and defendant not found, may pro- ceed on undertaking, 247; does not dispense with summons, 45 ; when doors and windows may be broken open to make an arrest, 80 to 82. (See Escape.) on civil process after judgment : general provisions as to, and forms, 247 to 257 ; service and return of, 250 ; must be on or before return clay, 251 ; liability of constable, 250, 251 ; need not be made until search for goods, 251 ; must be made if not sufficient goods to satisfy the whole execution, ib. ; when it shall be made, though there is a mistake in the defendant's name ; ib. ; what must bo done with the person arrested, 251, 253 ; escape and recapture, 253 (see Escape); how far it satisfies the judgment, 252; dis- charge of defendant, or one of two defendants from arrest, dis- charges the judgment, 253. I ■in criminal cases : who may arrest without a warrant, 865, et seq. ton a common state warrant : officer not liable for, though warrant irregu- larly issued, 871 ; officer should first produce his warrant, if de- manded, ib. ; what doors may be broken open, and how to make an arrest, ib. ; accused may be pursued to any county in the state, ib. ; if wrong person arrested, officer liable, ib. ; when officer may kill the accused, 872; liability of officer for delay in arrest- 934 ASS INDEX. ATT Arrest, Order of — CotUinued. ing, ib. ; for delay in bringing accused before justice, 866. (Sea- Escape.) ore a search warrant : if the property not found, 871. (3e8 Search WaBt KANT.) of witnesses : for non-attendance, etc., 94 to 96. of jurors : for same, 97. ASSAULT AND BATTERY— civil action for, can not be brought before a justice, 17. ASSEMBLY— unlawful, who may suppress, E. S., §§ 6894, 1849, 3097. ASSETS (see Hosband and WiPE)^-what crops must be taken by adminis- trator or executor, 37, ASSIGNMENT OF A CLAIM (other than commercial paper) — assignee- can sue on, in his own name, 392 ; how the transfer may be made, 392, 393 ; indorsement of, without delivery, gives no right, ib. ; rights of the assignee against the debtor, 393, 394; rights of the assignee- against the assignor, 393, 395 ; rights of the debtor against the as- signee, ib. ; rights of assignee when assignor is garnisheed, 428 ; claim • assigned as collateral security, 397 ; transfer of forged claim, 397 ; conditional assignment, 396 ; assignee of bill of lading, 462 to 464 ; warehouseman's receipt, 469 to 471 ; lease, 398 to 401 ; debt secured by mortgage on real estate, 397, 398 ; contract for personal services, 859: ASSIGNOR — is the person who makes the assignment, 391 ; admissions of evidence against claimants under him, etc., 170. ASSIGNS — this word, or "bearer," or "order," necessary in note, bond, or bill, to make it»commercial paper, 701. when a negotiable instrument is payable to A. or his assigns, it must, be indorsed by A. before it can be transferred, 706 ; when so pay- able, and indorsed in blank by A., it may be afterward transferred by mere delivery, 706, 707. ATTACHMENT AGAINST DEBTORS— when and for what causes it- may issue, 403, 404, 435 ; on what claims, 404 ; form of the affidavit to procure attachment, 406 ; the undertaking to obtain the attach- ment, and its form, 405, 406; the frauds which will authorize an action to be brought and attachment, before a debt is due. 435 ; mode of proceeding where action is brought before claim is due, 435 ; in what cases attachment may issue against the putative father of a bas- tard, 491 ; order against garnishee, and action against, 426, 427. order of attachment, its requisites, and form, 408, 409 ; service and- return of the attachment, 409, 410; if it accompanies the sum- mons gives jurisdiction throughout the county, 14; does not dis- pense with summons, 45. service of summons in the action, and publication and proceedings- if not served with forms, 415, 416; sale of live stock and perish- able property, 416, 417; proceedings, rights, when two or more attachments are issued, 417, 418; attachment discharged, by undertaking in such case, its form, and remedies thereon, 418 to- ATT INDEX. BAQ 93S Attachment against Debtors — Gontinued. 420; motion to discharge attachment, 412; trial of claimant's right to property attached, 420; trial, judgment, appeal, etc., in the action, 420, 421 ; proceedings against garnishee, 424, et seq.; assignee of judgment may sue garnishee, 35 ; order of sale and distribution, 423, 424. the return and forms of returns to order of attachment, 430, et seq. ; proceedings when there are lands, 432 ; form of docket entries, 432 to 435; appeal, 421, 422. fees and costs : in the proceeding against garnishee, how adjusted and jyaid, 429, 430 ; in the proceeding by claimant of property, 295 ; how the other costs are paid, 423, 227. ATTACHMENT FOE WITNESS— 94, 110. (See "Witness.) ATTESTING WITNESS— no one but the subscribing witness can be ad- mitted to prove the execution of the instrument, 153 ; exceptions to this rule, ib.; his testimony, 131. there must be two to a deed, etc., and to a wUl, 904, 921. attorney at law must attest a power of attorney to confess judgment made by a person in custody, 5 1 1 . ATTOENEY. (See Agent; Attorney at lat; Warrant op Attorney; Power of Attorney.) ATTORNEY AT LAW— when privileged from arrest, 63; can not testify- as to professional communications, 128, 129; but must as to other communications,, 129 ; must sign power of attorney to confess judg- ment, when made by a person in custody, 611 ; his implied duties, malpractice, etc., 654, 349; payment to him oriis clerk, 691. ATTOENEY, WARRANT OF. (See Warrant op Attorney.) AUCTION — the effect of combination among purchasers to prevent com- petition, 303 ; at what time bidder may withdraw his bid, ib. ; when auctioneer may set up his property a second time, and make first bidder pay the difference in the two bids, 303 ; by-bidders, ib. auth:^ntication of copies of ebcoeds and TEANSCRIPTS— how witness may prove that a paper is- a copy of a record, 145, 152, 147. what copies are proved, and how, by the certificate of an officer, 145, et seq. form of certificate of a justice to authenticate his transcript, 314. AWARD — ^what, 385; form of, under common arbitration bond, 914; when suit before justice is submitted to arbitration, proceedings of justice, etc., how set aside, appeal from, etc., 195 to 199. when void, 386 to 388 ; when void in part, and good in part, 388 ; in suit on, what defense the defendant may set up, 388, 389; the effect of a valid award as a defense to an action brought upon the matters submitted, ib. ; an award can not be made a rule of a justice's court, 385. BAGGAGE OF PASSBNGEES— what is, 474,' 475. when carriers liable for loss of, 475 ; lien on, 475. 936 bAI index. bar BAIL — in civil cases : may arrest the principal, 79 ; affidavit to justify tak- ing bail, 104. (See Undertakinq and Soreties.) in criminal cases : form of recognizance when case is adjourned, 875 .. forfeiture thereof, 876 ; form of recognizance of the defendant and the witnesses, on final examination, 882, 883; to keep the peace, when it may be required, 892; form of recognizance, 892 j form of affidavit to justify, 880 ; affray, form of recogni- zance, 894. BAILEE — who is, 438. (See Hirer op Articles.) BAILMENT— is the delivery of goods in trust for some specific object 438 ; always implied contract that care will be taken of the goods^ ib. ; express contract, or orders, dispense with such implied con- tract, ib. what is ordinary care, ib. deposit to be kept without reward, rights and liabilities of parties in. such case, 439 to 441. carrier of goods, 449; rights, remedies, and liabilities of carriers of goods, 449 to 464 (see Carrier op Goods); of borrower of goods^ 422; of hirer of goods, 445, et seq. ; of pawner and pawnee of" goods, 443 ; of carrier of passengers, 471 to 477 (see Stage Pro., prietors); carrier without reward, 441. BAILOR— who is, 438. BALANCE OF ACCOUNT— is the debt, 689; when statute of limitation commences operating on, 636. , BANK. (See Bank-bills ; Bank-check; Blank Signatures.) suits by, and against, must be in corporate name, 38. rights of parties who are in fact sureties, 483. rights of depositor of money, and claims of bank on a deposit, 441. effect of loaning at a greater rate of interest than 6 per cent., 483,'484. BANK-BILLS — may be levied on and applied to an execution, 281 ; what are legal tender, 817. remedy of party who receives counterfeit bills or bills of a brokett' bank, 690, n. ; half of bill lost by mail,'745. rights of parties when a bank-bill has been lost, stolen, etc., 742; are a legal tender if not objected to at the time of tender, 817. BANK-CHECK — rights, obligations, and liabilities of parties to, 746, et seq. ; forged, altered, etc., 744, 745, 749; certified check, 748. BANKERS' LIEN— for general balance, 614, 615 ; on deposit, 441. BANKERS' DRAFTS, 721— rights and liabilities of parties to checks, 746, et seq. ; forged and altered checks, 744, 745, 749; certified checks, 748; lien on deposit, 441. BANS— puiblishing, 640. BAR — dismissal does not operate as, 201. BARGAIN — for sale of property, is complete and binding when th»- terms are agreed upon on both sides, 766, 509, 510. the difference between an offer to promise and a promise, 571. BAB INDEX. BIL 937 BAB8 OE GATE — leaving open, when using private way over neighbor** land, 829, n. ; or at private railroad crossing, 371. BASTARD — proceedings against father, by mother of, with forms, 4S5' to 494. BEARER — the word bearer, order, or assigns, necessary in commercial paper, 701 ; if payable to A. or bearer, or to bearer without a name, or to a fictitious person, how transferred, 706 ; when indorsed in blank, ib. of a lost or stolen negotiable instrument, his rights, 741, et seq. BEASTS. (See Animals; Steats.) BEHAVIOR — surety for good ; when recognizance to keep the peace, etc.,. may be required, and proceedings in such case, 890. BENEVOLENT FUNDS— exempt from execution, 277; when bequest by will valid, 922. BETTING- — wager can not be recovered, 517. BIDDER AT SALE — ^may withdraw his bid before article is struck oW, 303 ; how liable, ib. ; combination among bidders for public work,. 303, n. efifect of combination among bidders to prevent competition, ib. ; by- bidders, ii. BILL OF COSTS — (see Fees and Costs;) particular items must be made out and signed by an officer on demand without charge, 23(5 ; conse- qences of neglect in such case, ib. BILL OF EXCEPTIONS— in what cases allowed, for what and when taken, 186 to 192; general requisites, 188; forms of, 190, 191; docket entry of, 192 ; need not be entered on docket till after judgment, 208; not evidence, etc., in subsequent trial, 148. BILL OF EXCHANGE- what is, and form thereof, 697, 918; action against drawer and indorsers, 40, 47. when the bill must be filed with the justice, and indorsed and re- turned by him after judgment, 34; when appeal taken must be filed in court, ib. , when defendant's signature must be proved, 152, 153 made by infant, void, 691, 692. interest on, rate of, and when to commence, 608. (See Intebest.) within what time the suit to be commenced on, 633. (See Limita- tion or Actions.) how party who is surety may discharge himself by notice to holder to sue the principal, 581, 582. . rights of surety to note or bill payable to a bank refused discount and then sold, 574 ; burden of proof when acceptor sets up de- fense of want of consideration, 739. parties thereto described, 697. requisites of : as to date, 700; good, though made on Sunday, ib. to whom payable ; bearer only, or a fictitious person, or blank, or when a mistake is made in the name of the payee, 700, 701 . 938 BIL INDEX. BIL . ■ ■ Biu. OP Exchange — Continued. the word " order," " bearer," or " assigns," or " to the order of," 701. in what it must be payable, 702, 703. when payable : time of payment can not be varied by proof of mistake, or a different intention from that expressed in the instrument, 703 ; when due if payable certain days after date or on demand, or certain time after sight, 703, 704 (see Days op Grace ; Time) ; " on or before," 704. the words "for value received" not necessary, 704. drawer of: is the one who makes or draws the bill, 697; liability, 712; when liable to the drawee, 712 ; is liable before bill is due if it is not accepted by drawee, 714, 715; when acceptor liable to him, 716. acceptance of, by the drawee : is a promise to pay the bill when due, 714; what amounts to, 713, 714 ; may be by promise to accept before or after the bUl is drawn, ib. ; conditional or limited acceptance, ib. ; when drawee refuses to accept, notice thereof to be given to the drawer and indorsers, to render them liable, 715 ; striking out acceptance by mistake, its effect, 710. , presentment for acceptance to the drawee : at what time to be made on bUl payable a certain time after sight or at sight, 713, 714; conse- quences of neglect or delay in such case, 714 ; may be made before bill is due, 713; bankers' drafts need not be presented for, 746 if presented before it is due and acceptance is refused, notice thereof must be given to the drawer and indorsers, to render them liable, 714; but not bankers' drafts, 746. drawee of: is the one upon whom the bill is dr^wn, 697; not liable unless he accepts or promised to accept or pay the bill, 713, 715 ; is called the acceptor after he accepts the bill, 714. acceptor of bill: the drawee is so called after he accepts or promises to pay the bill, 715; is liable the same as the maker of a note, 715 ; no demand on him necessary unless the bill is payable at sight, or a specified time after sight, ib. ; not discharged by a de- lay of demand or notice of non-payment, ib. ; is liable to drawer and other parties, but not for their costs, 716 ; is liable though the bill be forged, 744 ; when acceptor liable to an innocent holder of a bill who received it from a thief, etc., 745. ■ who may transfer or indorse, 707, 708. how transferred : when by delivery only, and when the bill must be in- dorsed, 706 ; when the payee is a fictitious person, 701 ; can ijot be transferred for only part of the amount due on it, 707. indorsement of: who to make, 707, 708; form of, 710; form of, by an agent, 709; in blank, how made and its effect, 709, 710, 396, 397; may be filled up by the holder so as to make it payable to any one, 709; may be stricken out by the holder of the bill, 710; in full, what is the legal effect, and the form thereof, 710, 711 ; when 80 made, what will divest the indorsee of his legal title to the BIL INDEX. BII, fS9 Sill of Exchange — Continued. bill, 707, 708; may be canceled by the holder of the bill, 710; effect of indorsing to "my use," 711. how indorsed to prevent its negotiability, 711 ; waiving demand and notice of non-payment, how made, 712 ; without recourse on the indorser, form of, 712; striking it out by mistake will not discharge the indorser, 710. indorser of : is the person who transfers a bill by indorsement, 697; conditions upon which he is liable, 716 ; not liable unless due demand of drawee, and notice of the non-acceptance or non- payment, ib. ; only liable to the person to whom he indorses and to those to whom thebill is afterward ti&nsterved, 717, 739, 740 ;, may take up the bill by paying and then suing all previous parties, 717; need not in such action produce receipt or reindorsement, 718 ; when an indorser is paid by an indorser, all who indorsed after the party did who is paid, are discharged, 717, 739, 740; can not recover his costs from the other parties, 717, 718; can not recover from co-indorsers a ratable share of amount paid, 718 ; exception to this rule, 737, 738 ; who pays and takes up the bill may again negotiate it, 718 ; if he pays the bill is entitled to its possession, 723 ; always warrants that the bill is not forged„ 744; is discharged from liability by the holder delaying to make de mand of payment of the drawee or acceptor, 719; is disohairged by not receiving due notice of such demand and non-payment, 725; when demand and notice excused, 730; when discharged by time being given to other parties, 739 to 741. transferrer of, by mere delivery without indorsement, when liable, 718. fwlder of: who is so called, 697; may sue all the parties at once, 717. .demand of payment of drawee : not necessary to render acceptor of liable, 716 ; not necessary if the bill has been refused acceptance, 7 14, 715. (See Accommodation Paper.) alued, 275; of head of family, 275, 276; of an unmarried woman, 276; of benevolent, funds, 277; of regalia, etc., of benevolent society; ib. ; if mortgaged, not exempt, etc., 277; officer bound to notice exemption, 277, 278; selection by debtor, when, effect, etc., ib.; what is a levy, 285 ; when and what force may be used in entering houses, and breaking open trunks, doors, etc., to obtain property, 79 to 82, 285 ; duty of the officer to seek for goods, and his liability for neglect, 278 ; what property may be taken as goods, and what not, 279 to 285 ; upon property mortgaged or hired, 282, 283, 277; upon property sold but not delivered, 766, et seq. ; against a firm, 681 ; can not be made after the decease of a party to the execution, 301 ; may be made on return day of the execution, but not after, 273, 274 ; what is a good levy and what not, 285 to 287 ; if made before or after the officer has paid the execution, it is void, 293 ; effect of a levy, 287, 288 ; when sufficient goods are taken to pay the execution, while the levy subsists, the judg- ment is satisfied, though the goods are afterward wasted by the officer, 288; officer liable to both parties after the levy, for the due application of the goods, 287 ; officer responsible for the property, and must sue person taking it, ib. ; not responsible for fire, theft etc. , 289 ; liability of officer taking goods not belonging to the defendant, or for not taking goods of the defendant, 279; when and how a priority of a levy will gain a preference, 291) ; is destroyed if plaintiff stays proceedings, etc., after the levy, 293 ; or permits the property to remain with the officer an unreason- able time, 294 ; when the levy is so destroyed, how it may be re- stored, 294; delay to sell, by officer, effect of, 294; defendant can not control the property, 288, except for safe-keeping, 280, 288, 291 ; officer or debtor may sue for iiyuries to, 292, 293. replevy of: proceedings, etc., 289. E X C INDEX. E X 961 Execution — Continued. two or more executions rights and proceedings on, 290. redelivery : bond, etc., 291. discharge levy before sale, how, and its effect, 293. redelivery to the debtor of goods levied on .-.if done by the direction of the plaintiff, without bond for redelivery, it may destroy the levy, 293, 294 ; property levied upon may be left in the possession of the debtor by the constable or plaintiff, 291; form of bond for re- delivery in such case, 291 ; liability of officer if goods are not re- delivered, ib. \ may sue to recover, 292. trial of claimant's right of property, how conducted, etc., 294 to 299; not tried by jury, 295. sale on : may be made, though both parties to the execution die after the levy, 301 ; how sale to be advertised, and form of advertise- ment, 301, 302 ; in attachment is made as in other cases, 423 ; property must not be sold in a. mass 302; need not be miade if the property will be greatly sacrificed, ib.; penalties, 'etc., if justice or constable purchase, 304; effect of combinations at, by purchasers, to prevent competition, 303; bid of minor, in- solvent, or insane, not taken, 303; if bidder refuses to pay, re- turn, ib. ; will be good, though made on the. youngest of two executions, 290 ; when property of a partnership is levied on to satisfy the debt of one partner, 682. what title the purchaser acquires by a sale on, 303, 304. rights and remedies when property not belonging to debtor has been sold, 299 to 301. against goods and body, 272 (see Obdeb op Aebest) ; arrest oh ordei discharges the judgment, 252 ; when to be returned, 305. ' form of returns : to execution against goods and chattels, 304 to 309 , to order of arrest, etc., 250. how money collected on, must be demanded of officer,, and its pay- ment with penalty enforced, 311, 501. liability of constable for false return, for not making return, or for not paying over money collected on, ,501. (See Con- stable. ) priority of: when two executions issued against same debtor, how preference obtained, 290 ; if priority los,t by delay of a constable, he is liable therefor, ib. proceedings to obtain execution from common pleas on judgment of justice, 310, 311; on judgments of another justice, 313. money collected, how disposed of 311," 319. if not issued in five years, etc., judgment dormant, 315 to 318. EXCHANGE— (see Sales;) rights of the assignee against the assignor, when a note or other claim is exchanged for property, 396, 718 ; when and how a party may put an end to a contract of exchange, and re- 962 EXO INDEX. FEE Exchange — Continued. cover back the property exchanged, on account of fraud in quality, or a false warranty, 787, 792. EXECUTORS AND ADMINISTRATORS— (see Administrators and Ex- ecutors ;) payment to, when appointed under a forged will, 691. EXECUTORY AND EXECUTED— contract, what, 509. EXEMPLIFICATION OF RECORD, 144 to 147. (See Copies of Instru- ments.) EXEMPTION— from jury, 178; of property from execution, 274 EXPENSES. (See Fees and Costs.) EXPERTS— evidence of, 132. EXPRESS AND IMPLIED PROMISE— what is, 509, EXTORTION — in what cases money or property paid by, may be recov- ered back, 692, 693. (See Interest; Frauds.) EXTRA WORK — when the value of it may be recovered, and when not, 857. FACTOR — what, 337; when debts due from the factor, or his principal, may be set off, 798, 799 ; has a lien on goods for his advances, etc., 614. (See Agent.) FALSEHOOD — which will render a person guilty of it liable to suit, 557. FALSE PRETENSES. (See Fraud.) FALSE RETURN. (See Constable.) FATHER. (See Parent and Child.) FEAR OF INJURY — when recognizance to keep the peace may be re- quired, and proceedings in such case, 890. FEES AND COSTS— of justice : items of, generally, 224 to 226; in rela- tion to strays, 805, 806, 809, 810; when acting as coroner, 535; how recovered in civil cases, 231 to 233 ; how recovered in criminal cases, 233, 897, 898 ; justice not to tax costs in favor of constable unless the items are stated and returned, 227. payment of, may be refused if particulars and receipt is not made out when requested, 236. security for : in what cases it may be required in civil actions, before or after action brought, 22; form of undertaking for, and how prosecuted, ib.; security in criminal cases, with forms of docket entries, etc., 868, 869. of' constable : items of generally, 226, 227 ; the items of, in relation to strays, 809; for advertising a township election, and for notifying townsliip ofBcers elect, 500; how his fees may be recovered in civil cases, 227; when the election of a justice is contested, 5 : how obtained in criminal cases, 233 to 235 ; if the items are not returned on the process, the constable can not recover his fees, 227. assistants of constable, 227. of witnesses : items of, 228, 120; how recovered in civil cases, 233 to 235 ; when the election of a justice is contested, 5 ; how obtained FEE INDEX. FEN 963 Fees and Costs — {Continued.) in criminal cases, 233 ; his demand of fees, 93 ; entitled to fees if subpenaed and not examined, 230. of jury : in civil cases generally, 227; when to be paid, etc., 185 ; trial of right of property taken by sheriff, and how taxed and paid, 838, 840. of arbitrators : and how taxed and recorered, 227. for depositions : to be taxed, 228. upon appeal, 238. of freeholders, and appraisers and clerk, in matters relating to strays, 805, 806, 809, 810. •when security may be required from an administrator or executor of a sister state, 335. how made out and stated, each party separately, etc., 229. if not provided for by law, can not be charged, etc., 235. penalty for overcharge, etc., 236, what are the costs of the plaintiff, and those of the defendant, 229 to 231. what costs must be inserted in the judgment and execution, and what indorsed on the writ, 229, 230. each party is, in general, liable for the costs he makes, though judg- ment is rendered in his favor, 231. who liable for : generally, 230, 231 ; in criminal cases, 233, 868 ; how collected, in civil suits, 231 to 233 ; when party brought up to keep the peace is discharged, 893; in proceedings against and for apprentices, 381, 383 ; when place of trial is changed, 91 ; when judgment by default set aside, 99; when documents, etc., are not admitted before trial to be genuine, 154; when judgment of justice is proceeded upon by execution from common pleas, 311; when justice has power to fine, etc., or suit is brought for a pen- alty, 234; in suit against an administrator or executor, 231 ; when there is a trial of right of property taken by a constable, 295 ; or by a sheriff, 838; or by a constable, on an attachment, 295, 420; in proceedings in attachment against the garnishee, 429 ; when sureties pay costs, 585, 716; when an infant sues or is sued by a guardian, 604; in suits upon negotiable instruments, 716. in proceedings relating to strays and drifts, 805, 806, 809, 810. for pursuing a fugitive from justice, etc., 234, 235 ; must be a legal charge made against the accused, 235; reward, ib. 514. how affected by tender of debt or damages before, or offer to give judgment after suit, 814, 822. (See Tender.) FEMALES— (see Apprentices ; Infants; Htjsband and Wife;) privileged from arrest for debt, etc., 61. FENCES— and liabilities, etc., for trespassing animals, 365 to 370; dam- ages assessed by viewers, 836. 61 ^64 FEE INDEX. FOR J"ences — Continued. fences of railroad and injury .to ammals, 370 to 375 ; liability for animals trespassing over partition fence, 368, 369. (See Ani- mals ; fence contracts with railroads, 372.) FERRYMAN — when a common carrier, 450. FIGHTING— in presence of justice, 894. FILING PAPERS, WRITINGS, ETC.— what contracts, etc., upon which suit is brought, must be filed with and indorsed by the justice, and retained by him, 34, 204; such papers and depositions, etc., must; on appeal, be transmitted to court, 204. PINAL PROCESS— what is so called, 44. FINDER OF PROPERTY— his rights, liabilities, and duties in relation to goods found, 440. has, in general, no lien, but may sue for his charges, 613; the owner is entitled to them on demand, though sold by the finder, 772. when innocent holder from finder of negotiable instrument can re- cover on, and when not, 743, 744. rights of parties to a lost bank bill or check, 748, 749. right of owner when half of bank-bill is lost by mail, 745. TINES— how collected, 896, et seq. FIRE — ^liability for accident by fire, fire-arms and fire-crackers, 657, 662, et seq. J'lXTURES — when erected by a tenant, can not, in general, be removed by him, 280, 833 n. ; exceptions to this rule, 281. when they may be levied on and sold as goods and chattels, 281. FLOOD — liability for accidents by, 656. J-ORCIBLE ENTRY AND DETENTION— in what cases it may be brought, 540 ; within what time, when, and before whom, 541, 542. notice to leave the premises, when and how given, and form of such notice, 542; complaint of plaintiff, requisites, and form of, 542 to 546; when to be filed, 542; the issuing, service, and return of summons, 546, 547. how to proceed when the justices or parties fail to attend at trial, 98 ; for what period the cause may be adjourned, and undertak- ing in such case, 547; evidence, etc., on the trial, 547 to 551; the trial by a justice, 551 ; the trial by a jury, with forms of oath, verdict, judgment, etc., 552 to 554; writ of restitution and service, 555 ; docket entry, 556 ; no appeal allowed, but petition in error on exceptions, etc., 552, 553; how costs taxed, 552. FOREIGN CORPORATIONS— service of process upon, 56; forms of re- turn to, 59. FOREIGN JUDGMENT— how it must be authenticated, 145, 147; its conclusiveness, 146, 148. (FOREIGN LAWS, RECORDS, ETC.— how proved, 144 to 149; effect of a certificate of an insolvent debtor procured in another state or country, 63. FOR INDEX. FKA 96S ,5FoREiGN Laws, Records, etc. — Cimiinued. their effect upon the construction of contracts, the rate of interest charged upon a claim payahle in another state or country, and sued hare, 522, 700 ; as to interest, 607. fOBFEITUEB. (See Recogitizance ; Bail; Penalties.) ■FORFEITURE OF THE CONDITION. OF A BOND. (See Bond.) FORGERY — (see Counterfeit Monet;) payment to executor under forged will, 691. rights and obligations of parties to a forged note, bill, or check, or a forged indorsement of a genuine note, bill, or check, 741, et seq, 749, 750. alteration of a contract, 526, et seq. FORMER RECOVERY, 201, 202. (See Judgment.) FORMS. (See Entries on the Docket ; Summons ; Warrant ; Execution ; Recognizance; Oaths and Affirmations; Afpidatits; Bond; Contract; Deed ; Bill of Sale ; Power of Attorney ; Mortgage ; Will ; Under- taking, ETC.) J'RAUDS, AND FRAUDULENT MISREPRESENTATIONS— for which order of arrest may be issued, 64 ; when a person may sue another for a falsehood, 557. when a person is liable for misrepresenting the pecuniary circum- stances of another, 557; or for misrepresenting the pecuniary- circumstances of a debtor when transferring a claim to a third person, 395, 557. or of the quality of things sold, 784, et seq. remedy and damages in such case, 785 et seq., 800. ■or in exchange of articles, 787. ■to defeat creditors : when conveyance by debtor is void as against his creditors, 560; conveyance for the benefit of one's self, ib. ; con- veyance not recorded, U>.; conveyance by an insolvent after his application for relief under the insolvent law, ib. ; when debtor retains goods sold or mortgaged, 643 ; a gift made by a parent to a child, 561 ; if fraudulent sale, it is void, though the buyer paid full price and took possession, 562 ; it is not void as between the parties to it, 563, 516, 518; when purchaser from the fraudulent buyer will hold the property, 563 ; property transferred so as to give some creditors a preference, 562, 563 ; proof of fraud, 560, 564. -what concealments from a surety will discharge him, 579. if a buyer induces a sale by false pretenses or fraud, when the gooda may be recovered back, 772, 773. master and principal, in general, liable for fraud of his servant, agent, apprentice, etc., 345, 346. who of two innocent persons that are cheated must bear the loss, 559. f BAUDS STATUTE OF. (See Frauds; Surety; Contract; ADMntisTBA^ TORS and Executors.) 966 PRE INDEX GTTA FREEHOLDER — in what township or county he may be sued, 13. FREIGHT. (See Caeeieb op Goods.) FREIGHT BOATS. (See Carrier of Goods.) FREIGHT CARS— liability of carriers for defects in, 451, 459. FUGITIVE — who may pursue, and where, 234, 871 ; fees for arresting one- charged with crime who removes from county, 234; proceedings against felon from a sister state, 889, 890. FURNITUEE — what property exempt from execution, 274. GAMING — action can not be brought to recover a wager or bet, 517. (Se&- E. S. § 4269.) GARNISHEE — who is so called, 424 ; proceedings against, 424 ; liable to assignee of judgment, 35. GATE — liability for leaving open at private way, 829, n. ; for leaving open at railroad crossing, 371. GENERAL ASSEMBLY— members privileged from arrest, 62. GIFT — ^promise of gift not binding, 616; replevin of keepsakes, 757. when delivered, can not be recovered back, nor compensation for it^, 515, 516. " by parent to child, when void, as against creditors, 561, 562. GLEANING- in another's field, 829. GAOLER. (See Jailer.) GOLD COIN — which is a legal tender, 817; standard of alloy and weight, 817, n. GOOD BEHAVIOR, SURETY FOR— when it may be required, and pro- ceedings in such cases, 890. GRACE, DAYS OF, 720, 721. GRANTOR AND GRANTEE— what parties to a deed are so designated,. 391, n. GUARANTY — (see Sureties;) is an undertaking that a certain stipula- tion will be performed by another person, 565. it will be void under the statute of frauds if not in writing, 566; what undertakings come within the statute, and what do not, ' 566 to 569. it will be void unless there is a sufficient consideration for it, 569 j this rule illustrated, 569 to 571. what is a sufficient agreement in writing, with instances, 571 ; the- extent of the contract, and its nature aUd construction, 571 to 579. the guarantor will be discharged if the guaranty was obtained by concealing the extent of the risk, 579 ; or by the guarantee giv- ing further time to the debtor, 580 ; or by guarantee parting with property received to secure the debt, and limit to this rule, 580, 581 ; or by neglecting to make demand of the debtor an unrea- sonable time, or to make demand, or to give the guarantor notice of the non-payment by the debtor, 575, 576 ; the effect of mere delay to sue the principal, 581 ; effect of delay to sue when notice is given to sue the principal, 582. QUA INDEX. HOR 967 iGuARANTT — Continued. the rights and remedies of the guarantor against the debtor, 584, 585 ; contribution between co-sureties, 585, 586. ■GUAEDIAN. (See Infants; Parent and Child.) may bind out his ward as an apprentice, and how long, 319, 377; muat protect the ward during his apprenticeship, 380; proceedings by guardian for benefit of apprentice, against the master, ib. when his power as guardian ceases, 587. extent of his power over the person and property of his ward, 587. how he is to sue and be sued, and his general duties and liabilities, 588. when liable for costs of suit prosecuted by him as guardian, 588. parent may appoint in his will, 923. form of such appointment in a will, 924. ■GUN — accident from firing, 657. HANDWRITING — of attesting witness to an instrument, when it must be proved, 152, 153. of the maker of a written instrument, must, in general, be proved before the instrument can be received in evidence, ib. ; excep- tions to this rule, 153. (See Evidence.) can not prove the handwriting by a witness who only knows it from mere comparison, 154 ; exceptions, ib. HEARSAY EVIDENCE, 164 to 168. (See Evidence.) HEIRLOOMS— what, and replevy of, 757. HEIRS — may sue foK injuries to land, done after decease of ancestor, 37. HIGHWAYS — right of the adjoining owner of land, 830, 831 ; • accidents on, 656, 657, 370; encroachments upon its width by owner, 831 ; right of abutting owner to, as graded, 832, n. when impassable a traveler has right to go on the adjoining land, 829. HIRE OF ARTICLES, OR GOODS— the rights, remedies, and liabilities of the hirer and letter of property, 445 to 447. when rights of the letter must appear in writing and be recorded, 447. HIRING AND SERVICE. (See Woek and Labor.) HOLDER — of promissory note, bill of exchange, or negotiable bond, who is so'called, 697. HORSES — taking up of a stray stoned horse, 811 ; such horse at large, 368. what concealment of defects, or misrepresentation of quality of, will render the seller liable to action, 784 to 787; warranty of, on a sale, that the seller is the owner, 787 ; what amounts to a war- ranty of quality, 790, 791 ; must be made at, or form a part of the terms of sale, ib. ; if made after the sale, is void, ib. ; to what defects warranty of soundness - extends, 791 ; when the buyer may return the horse and recover back the price, and when not, 786, 792 ; remedy against the seller when there is both fraud in. 968 HOU INDEX. IND Horses — Continued. and warranty of, the quality, etc., 783; damages upon a breach', -of a warranty, 785, 786, 793 ; accidents in street, 370, 656. if taken by a buyer on trial, when to be returned, 793. HOUSE OF EEPRBSBNTATIVES— arrest on civil process can not be made in, 79. HOUSE. (See Building, contract tor ; and as to breaking open doors to serve civil or criminal process, see Doors.) HOUSEHOLDBEi — in what township or county he may be sued, 13; of one county, when he may be sued in another, ib. HUSBAND AND WIFE— rights of husband in his wife's property, 589 to 592; effect of conveyance of land to husband and wife, 590; rights'- of the husband in leases belonging to the wife, ib. ; to whom they go on his or her decease, ib.; rights of husband in debts, etc., due the wife, 591 ; the personal property of the wife, ib. ; when he is liable for necessaries and other things furnished hftr, 592 ; of notice not to trust her, and its effect, 593; when he is liable for crimes and in- juries committed by her during the marriage, 594; when she can act without her husband, 590, 591, 595 ; when her admissions are evidence against him, 171 ; when they are incompetent witnesses for or against each other, 596; when they must join as plaintiffs, 598 ; when he must sue alone, ib. ; when she may sue alone, 597 ; who must sue on the death of husband or wife, and the effect of their- death upon suits pending, 598, 599; lien for repairs, etc., 599, n.; deed of husband and wife, 907. IGNORANCE — is no excuse for not properly performing what one under- takes, 442. (See Mistake.) ILLEGAL CONSIDERATION— what is, 516; promise founded on is void, ib. ; if paid, it can not be recovered back, 518 ; effect of part of the consideration being illegal and part good, 519. ILLEGAL CONTRACTS — are such as tend to promote crime or immor- ality, 516; rule illustrated, 516 to 519. ' ILLEGITIMATE CHILDREN. (See Bastards.) IMMORALITY— contract which encourages, will not be enforced, 516; instances of the application of this rule, 516, et seq. IMPEACHMENT— of witness, 135 to 138. IMPLIED PROMISE OR CONTRACT— what is, 509. IMPRISONMENT— for debt only in case of fraud, 64 (see Arrest);, when it avoids a contract, 511. (See Limitation op Action.) IMPROVEMENTS— which tenant can and can not remove, 280, 281; levy on, ib. ; must remove before lease expires, 833, n. INCOMPETENT-WITNESS, 125. (See Witness.) INDEBTEDNESS— proofs of to be filed, indorsed, etc., in action, 34. INDENTURES AND APPRENTICESHIP— (see Apprentice and Apprbs- tioeship;) form of, 915. INDEX— of docket, to be kept, forms of, etc., 206, 207. IND INDEX. INS 96» INDOKSEMENT. (See Peomissort Note; Bill op Exohakge; NegotiA' BLE Bond.) of amount of judgment upon note, etc., 204. INDOESER AND INDORSEE— who are so called, 697. (See Assignment!- OP Claims; Promissory Note ; Bill op Exchange; Negotiable Bond.)! [NDUCEMENTS— held out for others to act upon, can not be denied,, 171 to 174. INFANTS— who are deemed, 600; on what day they become of age, 826; when their age excludes them from testifying, 125 ; when liable for necessaries furnished them, and when not, 600, 601 ; wheiji par- ents liable for necessaries furnished them, and when not, 667; what contracts of an infant are void, or voidable, 601, 602; for what injuries liable, 602 ; how, by whom, etc., they may be ap- prenticed, 376 (see Apprentice) ; how they may confirm a voida- ble contract, 603, 604 ; liability of a "person who contracts with them, 603; how they should sue and be sued, 603 (see Parent AND Child) ; how served with process, 57 ; how guardian for an infant liable for costs, 588, 604; when claims in favor of are barred by statute of limitations, 637; at what age they may marry, 640; can not marry without the consent of parent, etc., ib. ; how justice should be satisfied thereof, 641 ; parent can not lease land, or recover rent or other debts of, 667 ; but may sue for injuries done to his child, ib. ; parent entitled to earnings of child, 668 ; but may permit his child to contract for his services, ib, ; the rights and powers of a guardian over the person and property of his ward, 587, 588 (see Guardian); injuries to, by negligence, 656, 657. INNKEEPERS- rights, duties, and liabilities, 477 to 481. INNER DOORS. (See Doors.) INQUEST OF CORONER, 530. INSANE PERSONS, AND INSANITY- when plea of insanity is a good defense against a contract, and who to prove it, 510; in criminal case, ih. n. ; within what time a claim in favor of must be sued, 637; former testimony as witness admitted, 168; how to sue, etc., R. S., § 4998. INSOLVENT DEBTOR— when privileged from arrest, 63. of another state, when privileged from debt and arrest, ib. copy of his certificate should be returned by constable with the pro- cess, 252; form of such return, 254; when his assignment or sale of property is void, 560 to 563; when his contracts are void, 516, 517; negotiable instruments due him may be indorsed by com- missioner of insolvents, 708. INSOLVENT LAWS OF OTHER STATES— how they affect the debt of the insolvent when he comes to this state, 63. INSPECTION — of books, etc., when and how ordered, 155, 156. INSTALLMENTS— how interest to be computed, 608, 609. INSTRUMENT. (See Contract ; Evidence.) 970 INT INDEX. J 01 INTEREST — what rate of interest may be contracted for and recov- ered, 605, 606; usurious interest can be recovered back, 606, 607; by a bank, 605, 606; contracts with national banks, 483, 434; what rate recoverable on contracts made or payable in other states, 607 ; may be calculated from the time a claim is due if the contract is silent as to interest, 608. when it commences : on a note payable on demand, 608; on a due-bill, ib. ; on a merchant's or other account, ib. ; on cash advances, ib. ; on uncertain damages and amounts, ib. how computed : when payment is made before the debt is due, 608 ; or exceeds or is less than the interest, 609 ; example of calculation, 610, n. ; when interest upon interest may be computed, 610. in what cases interest may be stopped by tender of money, 819. when payment of interest on a debt barred by the statute of limita- tions will revive the debt, 638. INTERLINEATION— effect of fraudulently altering an instrument after it is made, 526, 527, 741, 749. INTERPRETER — form of oath to, when the witness does not under- stand the English language, 180. INVENTORY— of goods levied upon and sold on execution, 304, 305; form thereof, 307, 309 ; penalty for neglect, 305. appraisement and inventory of property attached, and how made out, 411; form thereof, iS. IRREGULARITY (See Waebant ; Mistake; Execution.) JEWS — how oath to be administered to, 180; arrest of, 63. JOINDER OF DIFFERENT CAUSES OF ACTION IN ONE SUIT— what causes of action may be joined in one suit, 25, 26; when the plaint- iff's claim is entire, he can have but one suit, 202 ; when the property of different persons is taken or injured, they must sue separately, 37. JOINT PROMISE OR CONTRACT— (as to contracts made by and with partners, see Partner and Partnership; as to rights, etc., of Sure- ties, see Surety) — ^what are joint promises, and what are joint and several, 39, n. ; who to sue, 37; who to be sued, 39; can not join in same action a claim against two or more defendants with a claim against one, 25, 26 ; so, can not set off a joint demand against a sep- arate debt, or a separate debt against a joint demand, 798 ; how to sue when two or more joint promisors reside in difierent townships or counties, 46, 47; judgment taken against those served when others not served, 86 ; execution in such case, 269, 272 ; justice to deliver the note or claim to the plaintiff to sue thereon, 204 ; defense when those not served are afterward sued, 315; effect of omissions or mis- takes in making parties to the action, 40; release or discharge of one joint promisor, 325; admissions of one joint promisor are evidence against all, 1 68 ; such admissions will revive a debt barred by the statute of limitations, 639 ; action against party not served, 204, 205. JOINT WRONG-DOERS— how sued when they reside in different town- ships, 46, 47; claim against all and a distinct claim against one can J U D INDEX. J U D 971 Joint Weong-iioeks — Continued. not be joined in the same action, 27; but a distinct injury by all may, 40. they may be all sued separately and judgments had against each, but only one satisfaction, 40; liability of promoter of injury, ib., release or discharge of one will discharge all, 325 ; declarations by one, when evidence against all, 168. as to suing each other to recover back a portion of the money paid, 834, 835. JUDGE — duties of probate judge on the trial of a contfested election of a justice, 3, 4. is privileged from arrest for debt, etc., and when, 63. JUDGES OF AN ELECTION— form of oath to, 539. JUDGMENT— (see Entries); revival of, 315, 317, 633 n may be taken against defendants served, when others not served, 86 ; foreign, only prima fade evidence, 148; how impeached, 146. on the merits of a cause: form of, fdr the plaintiff, 210; for the defend- ant and for costs, 216, 217; for the defendant for a balance dua him, 213; effect of, as "to bringing a new action for the part re- mitted, 193, 801, 802; only evidence against the parties them, selves, and those who claim under them as assignees, etc.,. 193, 201; when to be entered, 200; neglect to enter, not breach of justice's bond, 201; upon order of arrest, form of, etc., 201; dif- ferent kinds of, ib. ; entries before judgment, 214, 220; after judgment, 220 to 222. on the merits : is final, effects of, etc., 201, 202; record, the only proof of it, 202. sureties : certificate as to, in the judgment, 203. higher security than original claim, ib., n. 1. indorsement of amount of, must be made upon the note, etc., 204. by confession : on warrant of attorney can not be taken, 204; form for, 912; by voluntary appearance, 217; no appeal from, 237. by default: its amount to conform to indorsement on summons, 99; form of, 217 ; may be rendered in absence of the defendant, 98, 99; how it may be set aside and a new trial had, 99. of nonsuit: form of, 216; when to be rendered, and efiect of, as to bringing a new action, 201, 801, 802. dismission without prejudice : in what cases it may be entered, generally, 98 ; form of, 214, 215 ; its effect, 85, 201. ^f discontinuance : done away with, 201. as to costs : fees for entering various judgments or satisfaction thereof, 225. (See Fees.) whose costs to be entered in the judgment, and whose to be indorsed on the execution, 229. (See Fees and Costs.) forms in special cases : in replevin, 763, 764; its effect, 759, 760. on trial of right of property taken by constable or sheriff, 297. in attachment, 434, 209. 1)72 J U D INDEX. J U B Judgment — Concluded. in forcible entry and detainer, 654. for a fine, 897, 113; on an award, 197. hm discharged : by lapse of time, 140 ; by seizure of sufficient goods- on execution, though the officer wastes them, or their proceeds, 287, 288; by releasing the body of defendant after his arrest on an execution, 252 ; term of imprisonment and how discharged, ib. general effect of, 201, 202 ; when rendered for the value of goods wrong- fully taken, and is paid, 834 ; when a person has but one, entire cause of action, and sues for and recovers a part, 202 ; but may remit excess, 801, 802; judgment on the merits satisfies claim, itself, 203, n. ; money paid on, however unjust, can not be recov- ered back, 693 ; defense to an action on a judgment, 140, 146, 148, 201. in criminal cases : against surety for costs, 869 ; order to enter recogni- zance, 885; for fine and costs, 897. how authenticated, 145; how assigned, 392; assignee may proceed on, etc., 35; how reversed, vacated, etc., 244. limitation of action on, 633, n. ; wheil dormant, 315; action against- joint party not served in first suit, 204, 205. JULY FOUETH — arrests by civil process can not be made on, 179 ; special bail, may arrest, ih. ; injury by fire-crackers,etc., 657. JUDICIAL EECORD— how proved, etc., 145 to 147. JUEISDICTIOlSr OF JUSTICE— m civil proceedings : in general, limited to township, and three hundred dollars, 12; exclusive when claim does not exceed one hundred dollars, 14; costs in common pleas on recovery of less than one hundred dollars, 15; in what cases co- extensive with the county, 13, 14; in what cases a justice has no jurisdiction, 16; in actions against railroads, 16; consent of parties will not give jurisdiction, 20; consequences of proceeding without jurisdiction, ib. ; when amount of plaintiff's claipi exceeds jurisdic- tion, may remit altogether the excess, 193 ; if defendant's claim ex- ceeds jurisdiction, how to proceed, 801, 802. as to the person sued: as to freeholder or householder of township,. county, or another county, 46, 47; exceptions, 13, 14. in cases against a constable and his sureties for official misconduct, 500, 501 ; in forcible entry and detention, 542 ; against water- craft by name, 842, 843; against other justices, 13; as chan- cellor, 19. in criminal cases : extends to county, 867. persons accused of crimes, 867 ; to keep the peace, 890 ; breaches of the peace, 894; as police judge, police justice, and mayor, 864, 865. how to punish for contempts and disturbances while holding court, 505, S94; to disperse riot, R. S. g 6894; to prevent prize-fights^ E. S. §g 7117-7119. JUEY— when jurors privileged from arrest, 63. (See Tbial.) JUD INDEX. JUS 973' ■s JxTKT — Continued. in what cases allowed in civil cases, 96 ; must be electors, 96 ; who- exempt, 178. process etc. . issuing, service, and return, 96, 97 ; arrest of, and penalty for non-attendance, 97; impaneling, talesmen, challenging, 177, 179; form of oath and affirmation to, 179; conduct of the trial, 181, 182; verdict and its form, 182, 183; proceedings when jury can not agree, 184; withdrawing juror, 184; voluntary dismis- sion of action by plaintiff, ib. ; payment of jury fee, entry of verdict and judgment thereon, 185; new trial with docket en- tries, 186; bill of exceptions, 185 to 192. in an action of forcible entry and detention : form of oath and affirmation . to jury, 553; their verdicts, 553, 554; on trial of right of prop- erty taken by sheriff, 838, 839 ; not allowed on trial of right of claimant of property levied on by constables, 295. fees in relation to : issuing venire for, 225 ; service of venire for, 226 ; fees of jury generally, in civil oases before justice, and who tO' pay, and when, etc., 185; on trial of right of property taken by sheriff, 840. JUSTICE OF THE PEACE— number in each township, and how in- creased or diminished, 1 ; who eligible, 2 ; term of office, 5 ; when and how elected, 2, 3 ; not affected by township being embraced in city or village, 3 ; how election contested, 3, 4 ; his official oath, and' certificate. thereof, 5, 6; when he must transmit to the township clerk the date of his commission, 7; his official oath, 5; his bond, form of, etc., 6; its record, 7; additional and new bond, -8; what is a breach of its condition for which he and sureties liable, 8 to 10; resignation, notice of, etc., 2, 10; and when the office is vacant by absence, neglect tO' give bond, etc., 7, 10, 11; what must be done with laws, his docket, etc., when, his office becomes vacant by death, expiration of term, or otherwise, 222, 223; may preside, in the absence of a judge, on the trial of a contested election of a justice, 4; to try action against another justice for neglect to pay over money, 13 ; what re- lationship to parties prevents him from trying a cause, 46 ; jurisdic- tion in civil cases, 12 to 16 (see Jukisdiotion op Justice); his duties relating to elections, etc., 536; jurisdiction in criminal cases, 863 et seq. (see Jurisdiction of Justice) ; may arrest, or cause an arrest, without warrant, and when, 894; when to act as coroner of county, 530 (see Coeoneb) ; as police judge, 864; as police justice, ib.; in incorporated hamlet for special purposes, 864, 865 ; has no chancery powers, 19; how trial by conducted, 193; when he may appoint a constable, and how, 497, 498; or trustee of township, 841; substitu- tion of one justice for another, when and how, 101 ; may issue exe- cution, etc., on the docket of justice, 222; may punish, and how, for disturbances, etc., and disobedience of order, 505, 894. Uabiliiy of: for refusing to pay over money, and how it should be de- manded, and its payment enforced, 311; for delay in issuing exe- 974 JUS INDEX. LEA Justice op the Peace — Continued. oution, 267 ; for proceeding without jurisdiction, 20 ; purchasing at sale on execution issued by him, 304 ; for money collected, 312; for stirring up suits, R. S. g 6911; purchasing judgments on his docket, E. S. § 6704. (See Docket; Entries on the Docket.) sureties of: their liability, 8, 497 ; their remedies, 8, 503, 504. JUSTIFCATION OF BAIL— in civil cases and form of affidavit, 104;. in criminal cases and forms of affidavit, 880. KEEPING THE PEACE— recognizance for, 890. LABOREK — compensation of, when he abandons the service, or is dis- missed, 853 ; is liable for negligence, 358 ; his lien for work, 617 to 632 ; wages exempt from attachment, ^74. LADING, BILL OF, 461 to 464, and notes. (See Bill op Lading.) LAND. (See Trespass upon Land; Crops; Forcible Entry and Detention; Landlord AND Tenant ; Lease; Heirs.) what is included in the term land, 827 ; contract for purchase, its ef- fect as to possession, and timber, 828; jurisdiction of justice as to land contracts, 17; authentication of records and instruments affect- ing land, 150 to 152. LANDLORD AND TENANT— (see also Forcible Entry and Detention;) interest of landlord or tenant not affected in certain oases when the crop is levied upon by an execution, 281 ; verbal lease, when binding, 547, 548; tenant only, and not the landlord, can sue for a trespass upon the leased land, 832; but landlord may sue the trespasser for trees cut down, ib. ; tenant may sue landlord for entering without license, ib. ; or for turning him out, ib. ; rights of landlord when ten- ant on shares abandons the crops, 839 ; effect of casualty to build- ings, 909; who liable for taxes, 910, n. ; tenant can not dispute the title of the person under whom he claims, 548 ; exception to this this rule, ib. ; the tenant's estate in the land may be sold by constable as a chattel, 281 ; form of return to execution, and bill of sale in such case, 309, 310; as to levy on crops, 281, 282; what buildings erected by the tenant may be removed by him, or may be sold on execution as his goods, 281; landlord entitled to crops sown by tenant, which ripen after the expiration of the lease, 833, n. ; lien when tenant a cropper, 281; verbal agreement as to repairs void, 158; cutting tim- ber or trees by tenant, 828; tenant can not remove fixtures after lease expires, 833, n. ; rights and liabilities of landlord, assignor, and assignee when lease is assigned, 398 to 401. LARCENY. (See Stolen Property.) LAWS — how proved, 144; of a sister state, how far operative in Ohio, 522, 523. LAWYER. (See Attorney at Law.) LEADING QUESTIONS— what, and who may ask them, 130, 131. LEASE — (see Landlord and Tenant;) form of, 908; verbal lease, when good, 547, 548; by a husband, of his wife's land, 589; parent, unlesi LED IKDEX. LIM 976 Xbase — Continued. appointed guardian, can not lease his child's land, 667; rights and liabilities of assignee and assignor, 398 to 402. LEDGER — when it must be produced on trial, 329. LEGAL-TENDER NOTES, 817. LEGISLATURE— privileged from arrest, 62, 79. LETTER — being mailed, presumed received, 141, 392, 768. LETTER OP CREDIT— what is, and the duties of the person to whom it is addressed, to render the writer responsible, 574 to 576. LEVY. (See ExEcuiieN.) LICENSE — to pass and repass on another's land, how far binding, and how revoked, 828, 829, 514 (see Way) ; excessive charge for a license from city authorities, 692; in what case marriage license must be ob- tained, 640; license for animals to run at large, 366, 367. agreement for sale of land, when an implied license to the Iniyer to take possession, 828. LIEN — what is meant by this word, 612 ; general and particular lien, 613 ; possession, in general, necessary to create a lien, 614; when it exists property can not be taken by process against owner, 282 ; of mechanic* and others at common law, 613, 614; their rights, 614, 616, 282; la- borers, contractors, and material-men, by statute, 617 to 632; deposit without reward, 441 ; finder of goods, 613 ; of borrower, 443 ; factor, 614; pawnee, 444; carrier of goods, 459; carrier of passengers, 475; storage merchant, 613; tavern-keeper 478, 614; livery-stable keeper, etc., 613; landlord, when tenant cropper, 281, 859; bankers, etc., on balance, 614, 615; bank, on stockholders' stock, 395; seller, for price of goods, 616, 617 ; when a lien will be created by the wrong- ful act of a servant or thief, etc., 613, 614; lien is divested by the de- livery of the property to the owner, 614; but is not affected by the owner selling the article, ib. ; replevy of property by or from the lien- holder, 751, 752, 759 ; lien on wife's land for repairs, etc., 599. LIGHT AND AIR^-prescriptive right, 18 n. LIMITATION OF ACTIONS — within what time civil actions must be brought generally, 633, 634; on judgment of a sister state, or recog- nizance, 633, n. ; on a domestic judgment, 140, 633, n. ; promise to pay debt barred, 515. at what period the time limited for bringing the action commences : not until there is a right to sue or breach of contract, 636 ; where a bill of exchange is payable after sight, 635; where there is no breach of the contract until a demand made, ib. ; when a person takes or withholds property from the owner, ih. ; where there is a run- ning account, 636 ; where there has been a settlement by striking a balance, 636 ; where a wrong or injury has been done, and is subsequently discovered, 634 ; where the wrong-doer is afterward discovered, 634; where the cause of action arises in the lifetime of a decedent debtor, or afterward, 636; where the plaintiff is a female and was married, or was an infant, or was in- ■97& LOB INDEX. M E liiMiTATioN OP Actions — Contimied. sane, or imprisoned, when the cause of action accrued, 637; when the defendant left or removed out of the state, or ran away, or went to place unknown, 637; where judgment has been- arrested, reversed, or suit failed, etc, 637, 638; where there has been an acknowledgment, etc., of the debt or claim in writing, 638, 639 ; efifect of limitation under repealed laws, 639. LOBBYING — legislature or city council, promise to pay for void, 517. LIQUOR — when promise to pay for void, 517. LIVE STOCK — transportation by railroad, 452, 453. (See Animals.) XOST GOODS, AND LOST NEGOTIABLE INSTRUMENTS, ETC.— as to lost negotiable instruments, 742, 743. rights of parties to a lost or stolen bank bill or check, 748. as to lost goods, 613, 772. LUNAR MONTH — when months are mentioned in a statute, note, con- tract, etc., how computed, 825. LUNATICS, IDIOTS, AND INSANE PERSONS— when plea of insanity a good defense against a contract, and who to prove it, 510; within what time a claim in favor of must be sued, 637. -MAIL — ^m.oney sent by, and lost, who shall bear the loss, 691 ; letter sent by, presumed received, 141. MALICIOUS PROSECUTION— action for can not be brought before a justice, 17. MARKET, SALES AT— seller impliedly warrants quality, 789. MARRIAGE — by justice, 13; form of ceremony, fee for, and for maek- ing return, 640, 641 ; who may be married, 640 ; when consent of parent or guardian necessary, ib. ; how justice to be satisfied thereof 641; publication of bans, or a license, 640; certificate of, must be transmitted to probate judge, and when, ib. ; form of the certificate, ib., n. 1 ; registry of, 640. MARSHAL — rights of sureties of, 502 ; general duties to arrest, etc., 865. MARRIED WOMAN, 589. MASTER AND SERVANT— for what contracts and injuries the master is liable, 345, et seq. (See Agent.) as to wages of servant when he abandons the service before his term expires, or is dismissed, 853, 854. MAYOR— justice acting as, 864, 865 ; jurisdiction, civil, 21 ; criminal, 863, et seq. ■MEASURE — ^proof of custom or usage when mentioned in a contract, 161, 162. MECHANIC — as to tender of work, see Tender. what tools of, exempt from execution, 274; not bound to perform what he has agreed to do gratis, 515 ; but if he performs in such case, can not recover compensation, 441, 442; is liable for gross negligence in doing such work, ib. to what extent liable for unskillfulness or materials, 448, 449, 789 ; when liable for loss or injury to property worked on, 448, 449; building contracts, 856. MEM INDEX. MIS 977 Mechanic — Continued. employer not bound to take the article unless made in a workman- like manner, 855; how amount of claim for work may be re- duced, 857 ; can not recover for making a gaming device or gam- ing machine, 517; work to be done on demand, when it may be done, 816. ■who owns the article before delivery where the employer finds part of the materials, 772 ; or when an article is ordered and paid for in advance, ib. his lien on an article for his work : at common law, 613 to 616 (see Lien); his statutory lien, and how enforced, etc., 617 to 632; his pro- ceeding against water-craft, 842. MEMBERS OF CONGRESS— privileged from arrest for debt, etc., and when, 62. MEMBERS OF GENERAL ASSEMBLY— privileged from arrest for debt. etc., 62; suits against stayed, etc., R. S. § 5034. MEMORANDUM — made merely to refresh memory of a fact, not evi- dence, 131 ; cases in which a memorandum may be received in evi- dence, 166. MERGER— of original claim in the judgment, 203, n. 1. MESNE PROCESS— what is so called, 44. MESSENGERS OF THE GENERAL ASSEMBLY— privileged from ar- rest for debt, etc., 62. MILEAGE — of witnesses : officer must indorse upon writ, 93. not allowed for less than one mile, .120, 228. fees of constable for traveling to serve process, 226, 227. (See Fees.) MILLER — ^when liable for loss of wheat, etc., delivered, 449. MILITIA — when privileged from arrest, 61. MINORS — who are, 600. (See Infants; Appeentioe.) MISJOINDER OF PARTIES— its correction, 40, 41. MISNOMER, 50. (See MIstake.) MISREPRESENTATION. (See Falsehood ; Fbatjd.) MISTAKE — how to sue when there is a mistake in the name of the per- son to whom or by whom a contract, note, etc., is made, 50. effect of: in a bill of particulars, 30 ; in making wrong parties to an ac- tion, or m the name of the right parties, and how cured, 40, 41 ; in a summons, or its service, cured by defendant defending, or by voluntarily entering his appearance, 55; duty of a constable when mistake of name of defendant in a writ, 84, 251; mistake in an entry on the docket may be corrected, 208. remedy when a mistake is made in a settlement, or after a receipt in full is given, 330. when in a written or sealed contract, it can not be set up to change or vary its terms, 157 to 159. where money or property is paid by mistake, in what cases it may be recovered back, 691. 9T8 MIT INDEX. N E G MITTIMUS— forms of; against a witness refusing to testify, etc., when. deposition is to be taken, 114; against- a person for disturbance oi contempt while justice trying cause, 506, 507, 894; against accused person pending a trial, 875, 876 ; against an accused person after his examination, 882; against a person who has been ordered to enter into a recognizance to keep the peace, 893; for fine and costs, 897; form of return to, 893. MODIFY — judgments by petition in error, 244. MONEY. (See Payment; Tender.) may be taken on execution, 281 ; unclaimed in hands of justice, how disposed of, 319, 320. MONTHS — ^whether calendar or lunar, when mentioned in a statute, con- tract, or note, etc., 825; when note payable certain number of months after date, the day of the date is excluded in the computation of the time when due, 721. MORAL OBLIGATION — as a consideration for a promise, 515. MORTGAGrE — ^form of, for lands, 908 ; how to be executed, and when to be recorded, 906 ; rights of assignee of the mortgage debt to the mortgage security, 397, 398. justice may take acknowledgment of in his county, 13. of goods and chattels: form of, 917; difference between it and pawn, 444, n. ; when fraudulent and void, as against the creditors of the mortgagor and other persons, 643, 644 ; but is good as between the parties, though void as to creditors, 645; when to be filed, 646 ; statement under oaith to be filed, and its form, 644, 645 ; can not levy by execution .against the mortgagor, '282, 283 ; effect of mortgage on the ownership of the goods, 652, 752, 444 n. rights of parties to replevy, 762. when and how the mortgage may be renewed, 650 ; effect of refiling, 647, 650 ; priorities, 647, 648 ; infant's mortgage, 602, n. MOTHER — if father dead, the mother may apprentice her children, 376. MOTION — for opening judgment by default, 99 ; to discharge attachment, 412. MUNICIPAL CORPORATION— liability for negligence and acts of its oflScers, 354 to 356, 832. NAME- — of parties in summons, 49 to 52; of unknown defendants, how described, 50 ; effect of suing a person by a wrong name, and how corrected, 50 ; in what name to sue when there is a mistake of the name in the contract, ib. ; as to christian and surname being written out in full on the docket, ib. ; when a mistake of the name in the process, what the constable must do, 84, 251. NATIONAL BANKS— sureties on paper to, 483, interest, 483, 484. NAVIGATION. (See Vessels.) NECESSARIES. (See Infants; Husband and Wife.) NEGLIGENCE— general rules as to liability for, 653, et seq. implied duties of the owner of property in its use, and liability of owner for injuries to third persons, 653 to 656; inevitable and NEG INDEX. OAT 979 Negligence^ Continued. other accidents, 656, 657; contributory negligence, 657; fires, 662 ; injuries of person or vehicle at railroad crossing, 657, et seq. ; injuries to animals by railroad, 370 to 375 ; proximate and remote result of negligence, 662 et seq. (See also Bokroweb; Carrier; Hirer; Trespass; Work.) NEGOTIABLE BOND. (As to other bonds, and the assignment of them, etc., see Bond; Recognizance; Assignment op Claims; Undertaking; as to sureties in, see Surety.) Is in legal effect the same, in general, as a promissory note, as to rights, etc., of indorsers, etc., 700. (See Promissory Note.) when balance due is less than three hundred dollars, though the pen- alty more, may be sued before a justice, 15 ; form of, 698 ; must be filed with the justice, indorsed, and on appeal filed with the clerk, 34 ; nature and effect of a penalty in, and what part may be recovered, 699, n. NEGOTIABLE INSTRUMENT— what, 696. (See Bill of Exchange; Promissory Note;. Negotiable Bond.) NEWSPAPER ADVERTISEMENT. (See Advertisement.) ' NEW TRIAL — when and how party may obtain it, 186; form of entry on the docket In such cases, 186. I NON-JOINDER OF PARTIES— effect thereof upon the action, 40 to 42. (See Parties to Actions.) NON-RESIDENT— when held to answer a summons, 13, 46. NONSUIT— form of, 201 ; effect, ib. NOTARY PUBLIC— his protest evidence, 724 ; its form, ib. NOTE. (See Promissory Note.) NOTICE — what is constructive notice, 672 (see Advertisement). when, by whom, and how given, and form thereof: by claimant of prop- erty taken on execution by a constable, 296 ; to take depositions, 108, 109; of the opening of judgment by default, 99, 100; for permission to take copies of a paper, etc., 155; of a limited partnership, 684, 685 ; of the issuing of an attachment, 416 ; when to election is contested, 536 ; in forcible entry and detention, 542; by taker-up of stray, and the appraisement thereof, 804; by claimant of property taken on execution by the sheriff, 838; by the constable, 296; of a sale on execution, 302; by sureties of justice, constable, or marshal to be relieved, 503. NUISANCE civil action on account of, can not be brought before a justice, 17, 18; what is, 830, n. ; may be removed, 830; liability for, 352, n. OATHS AND AFFIRMATIONS— (for the forms of affidavits, see Affi- davit.) fm-ms of: to witnesses on a trial, 179 ; trial before arbitrators, 196 ; when depositions are taken, 116; to an interpreter, 180; to the truth 980 OBJ INDEX. ORD Oaths akd Apfibmations — Continued. of an affidavit, ib. ; to authenticate an account against an estate, 334 ; to clerks and judges of election, 539. to jury: in civil cases generally, 179, 180; on trial of right of property taken by sheriff, 838, n. ; may be administered by justice in his county, 13. ■official oath of justice, and form of certificate thereof, 5, 6. substance of official oath of constable, 495. fees relating to, 225. OEJECTIOMS— to depositions on the trial, 123. OBLIGATION. (See Bond; Negotiable Bond; Bail; Surety; TTnde» TAKING.) OBLIGOE AND OBLIGEE— who are so called, 391, n. OCCUPATION. (See Possession.) OFFICE — ^term of justice, 5 ; if attached to another township hia juriB- diction follows, 5. proof that a person holds an office, 141, 143. OFFICERS — when, and when not personally liable for their public con- tracts, and when corporation liable for acts of officers, 354 to '356; who are privileged from arrest, and when, 61, et seq. ; can not issue order of arrest against an officer for official or corporate debt, 64. personal liability to third persons for omission of official duties, 355, 356. not liable on contracts in behalf of government, 356. promise to pay officer for neglecting to perform his duty, is void, 517. sureties of, duration of their liability, 572 (see Justice of the Peace; Constable) ; rights of sureties of township officers, 503. suits against, can not in general be brought before a justice, 17. (See Justice; Constable.) have a right to go on the land of another to execute process, 829. what officers bound to arrest violators of law and ordinances, 865. OFFICIAL BOND— of justices, 6 to 8; liabiUty on, 8 to 10; of constable, 496; liability on, 500. OPINION OF WITNESS— when evidence, 131 to 135. OE — when used at the termination of a word designating the parties to a transaction, it has an active signification, as grant-or, etc., 391, n. ORDER — for restoration of property to claimant, when given, 295 ; such order may be disregarded by the constable, 296. on merchant, etc., should be produced, 329. the word order, bearer, or assigns, necessary to a negotiable instru- ment, payable to "A., or order,'' or "to order of A.," how to be transferred, 701. recalling execution, when and how done, 259, 261, 264 ORDER OF ARREST— who are privileged from arrest, 61 to 64. before judgment : for what causes issued, 64, 65. affidavit for: statement of causes, 65 to 68; forms of statements, 68 to 77 ; undertaking and form thereof, before order issued, 78 : ORD INDEX. PAR 981 I sObdgb op Arrest — Continued. issuing and form of the order, 78 ; may accompany the summons or issue afterward, ib. ; copy must be delivered with order, ib. ; not to be served without such copy, 502; the arrest thereon, and by whom, when, where, and how made, 79 to 84 ; duty of oflBcer after the arrest, escape, etc., 79, 83, 84; arrest of wrong person, 84;. forms of returns, 84 ; undertaking if action adjourned, 103 ; judg ment, form of, etc., 201. o/iJer judgment, when, there was an order of arrest before judgment : in what cases not allowed, 247; issued of course after judgment, if de- fendant is in custody on order issued before judgment, 227, 228; the form in such case, 250. after judgment, when, there was no order of arrest before judgment : mode of proceedings to obtain, etc., and the requisites,. etc., of affidavit) undertaking, etc., 248, 249; requisites and form of the order, 249, 250; its service and return, 250, 251 ; discharge, escape, and recapture, etc., 252, 254; forms of returns, 254 to 256; effect of mistake in name of defendant, 251, 84. ORDINANCE OF CITY OE VILLAGE— how recorded, etc., 151, n. ; ar- rests by constable and officers for violation, 499, 865 ; justice's juris- diction in municipal corporations, 864. OVERCHARGE— of fees by officers, penalty, 236. -OWNERSHIP OF PROPERTY— (see Sales)— possession is presumptive proof of, 370; when it passes to the buyer on a sale, 766 to 774. passes to a trespasser, on paying a judgment for its value, 834. purchaser on execution takes the interest that the debtor had it the goods, 304; succession follows the domicile of the deceased owner, 523, n. PARENT AND CHILD — (see Apprentice;) parent is bound to support his minor children, 667; when liable for necessaries furnished to his child, 667, 668 ; when entitled to the earnings of his minor children, 668 ; when the child may contract and sue for his earnings, ib. ; can not lease child's land, 667 ; when the parent may sue for a personal injury done child, 657, 668 ; father entitled to the custody of his child, ib. (see Bastards) ; when child may recover from a parent for his labor, 668 ; when minor child must have the consent of his par- ent before marrying, 640 ; when a gift by parent to his child is void, as against creditors, 561, 562. TAROL EVIDENCE— is verbal testimony, 508, n. (see Evidence); general rules relating to, 156. PARTICULARS— bill of, 28. (See Bill of Particulars. ) PARTIES TO ACTIONS. (See Husband and Wife; as to admissions, etc., see Evidence.) who to be plaintiffs, 35 to 38 ; who rnust be defendants, 39, 40 ; con- sequences of omissions or mistakes in parties, or mistakes in their»pames, 40, 41 ; consequence of decease of parties while suif is pending, 42; making administrator or joint contractor a party, etc., 43, 204, 218, 318. 982 PAR INDEX. PAR Pabties to Actions — Continued. when privileged from arrest for debt, etc., 62; how they should be* named in the summons and on the docket, 49, et seq. (See In- fants; Paetneks.) PARTITION FENCE— animals trespassing over, 368, 369. PARTNERS AND PARTNERSHIP— what constitutes a partnership, 66». 670; form of articles, 912, 683. to allow an agent or clerk a portion of the profits may not make him< a partner, 670, note (b) ; who is a dormant partner, 671, n. 1 ; when common carriers of goods, or stage proprietors, are- deemed partners, 671 ; each partner liable for debts, etc., of the- firm, even though stipulations to the contrary in the articles of partnership, 671 ; how a partner may limit his liability, 670; wha^ may be charged and sued as partner for the liabilities of the firm, though not a partner, 670, 671 ; secret partner ip liable, 671. power of one partner to bind the firm : by drawing, indorsing, or accept- ing a bill of exchange or promissory note, 672 ; or doing any other act coming within the scope of partnership business, even though such partner abuse the power confided to him, 673, 674p exception to this rule, 674, 675; misapplication of the assets, 675. one partner can not bind the firm : by act not relating to or coming within, the scope of the partnership, unless the firm consents to it, §75 r nor by entering into a contract of surety or guaranty, ib. ; nor by ' a sealed instrument, 676 ; (the partner who seals the instrument may be sued, ib. ;) nor by a submission to arbitration, unless, ■ etc., 676; when the other partners forbid the act, and the person for or with whom the act is done, has notice thereof, 675. hmn a partnership may be dissolved and its effect, 677 ; notice of dissolution must be given, or partners liable for subsequent contract, 679 ; effect of dissolution upon the liabilities and powers of the part- ners thereafter, 678 to 680 ; decease of partner dissolves the partnership, and vests power in survivors, 677 ; duties of surviv- ors and their right to assume the debts and take the property,. 677, 678. dealings, etc., with one partner: by discharging one partner all dis- charged, 671 ; unless, etc., 325. when admissions of one partner will bind the firm, 167, 676 ; not, in- general, if made after the dissolution, 678. notice to one partner in matters relating to the partnership business, is notice to all, 678, 679. one partner can not sue another in matters relating to partnership, unless, etc., 681. actions by and against, 681; effect of omissions or mistakes, 40, 41;. form of entry on the docket, 210, 680 n. ; what demands may be set off by or against them, 798, 799 ; how the partnership- may be proved, 681. « exeeuiian against : when against one partner for his private debt, how PAR INDEX. PAT 983 fPyBTKERS AND PARTNERSHIP — Continued. executed against the property of the firm, 682; when against the firm, how executed, ib. the good-will, 680. limited partnership : for what purposes formed, 683; extent of liability of a limited and of general partners of such firm, 685 ; how formed, the certificate, and its form, record, and publication, etc., 683; the name of the firrn, and the general powers, duties, and liabilities of the general and special partners, 685, 686 ; re- newal or continuation of such partnership, 687; its dissolution before the time named in the certificate, 687; actions by and against the firm, 688. PAKT PBEFOEMANCE— of a contract, 523; sale, 777; work, 855; time extended, etc., 163, 164. TASSENGER CAREIERS— duties and liabilities, 471, et seq. (See Cab- KiEBS OF Passengers.) iiATENT FOR LANDS— its execution need not be proved, 551. copy from land-oflBce, or certified copy from recorder's office, may bo received in evidence, 150, 151. PATENT RIGHT— note for, 738. PAUPER — money expended for, 509. 'PAWNBROKERS — their rights, duties, remedies, and liabilities, 443. PAWNOR AND PAWNEE— who are so called, 443 ; their rights, etc., 444, 445, 614; difference between pawn and mortgage, 444, n. PAYEE — is the person to whom a note, bill of exchange, or negotiable bond is made payable, 697, 698. PAYMENT- in what kind of coin or bills, 817 (see Tender) ; the differ- ence between payment and set-off, 689 ; to whom it may be made, 691 ; money sent by mail and lost, 691 ; may be proved by a witness, though receipt given, 164, 330. when order, check, etc., deemed a payment, and when a loan, 140; when executing a note or bill of exchange, is deemed a payment, 693; of a bond, or judgment, is, in general, presumed after twenty years, 140 ; how this presumption is destroyed, ib. ; re- ceipt for rent last due, is presumptive evidence that previous rent was paid, 139 ; when payment of part of a debt in discharge of the whole will discharge the whole, and when not, 324, 325 ; when payment of part of a debt or interest will revive a debt barred by the statute of limitations, 638, 639 ; remedy of a party who receives counterfeit bills, or bills of a broken bank, in pay- ment, 690, n. ; the rights of the assignee against the assignor, when claim against another who is insolvent, is transferred as a payment, or in exchange, 396. ■tehen money or property paid may be recovered back : in performance of a contract, and paid under a mistake as to facts, 692, 693; on an unjust claim, or more than due, or extorted, ib. (See Fraud j WARBANir.) 984 PED INDEX. PEE Payment — Continued. money paid on unjust judgment can not be recovered back, 693 ; judgment against a wrong-doer for the value of goods, and payment thereof, vests the goods in the wrong-doer, 834; when two debts- owing by party paying, to which the payments must be applied, 689 ; can not, in such case, be applied by creditor to discharge a debt created after the payment, 690, 691. PEDIGREE— how proved, 166. PENALTIES — action for penalties, and how collected, 895, et seq. ; against a witness for not attending or refusing to testify, 94 to 96 ; against juror for non-attendance, 97 ; must, in general, be brought within- one year, 634; in whose name to be brought, and how commeiiced, 896 ; who liable for costs in action for, 230, 231, 897. appeal, 238 ; execution and mittimus for, 897, 898. form of judgment, 897. no stay of execution, 258 ; bill of exceptions, 898. in suit on bond with penalty, what amount can be recovered, 699, n, justice must report, 898. PENALTY OF BOND — nature and effect of, and what amount can be re covered, 699, n. ; may be inserted after it is signed, 527, 528. PENITENTIARY— in suits relating to, how to sue, 38. PERFORMANCE OF CONTRACT, 523, 777, 855, et seq. 163, 164. (See- Tender; Sales; Contract.) PERPETUATION— of testunony, subpena for witnesses, 92. PETITION IN ERROR, 244, 898. PHYSICIANS — their implied duties, malpractice, 654. PIpTURES — levy on, 757 ; seller of indecent pictures can not recover- their price, 517; seizure of indecent, 886. PLAINTIFF. (See Parties TO Action ; Evidence.) PLEDGE AND PAWNS, 443. POLICE JUDGE — and police justice, justice acting as, 864. PORTERS — who are common carriers of goods, and liable as such, 450. (See Carrier or Goods.) POSSESSION— evidence of ownership, 772; sufficient, without owner- ship, to sue for a trespass, 370, 751 ; when officer should take goods into possession on levy, 288 ; when retained by seller or mortgagor- deemed fraudulent, as to creditors, 643, 644; when necessary to main- tain an action of trespass upon lands, 830. POWER OF ATTORNEY— (see Agents and Servants;) form of, to sell lands, 911; to lease lands, ib. ; to collect debts, 912; to confess judg- ment in common pleas, 912; when made while in custody, to confess judgment, how to be executed, 511 ; when relating to real estate, how to be executed, acknowledged, and recorded, 905 ; form of acknowl- edgment of, 332 ; the power to act under it ceases on death of the- person executing it, 362. PREMIUM ON A LOAN. (See Interest.) PRE INDEX. PRO 985 PEESUMPTIVE OR CIRCUMSTANTIAL EVIDENCE— what is, 139. (See Etidence.) PRIMA FACIE— what, 152, n. PRINCIPAL AND AGENT. (See Agent.) PRINCIPAL AND SURETY— (see Surety;) who is called principal, and) who surety, 565. PRISONER — (see Arrest; Escape; Wakrant; Mittimus; Execution;) confessions by, when they may be received in evidence, 175. warrant of attorney by, to confess judgment, how to be executed,. 511. what contracts made by while imprisoned, will be binding, and what not, 511. PRIVATE PAPERS— not liable to levy on execution, 282. which need not be produced on trial, 143. PRIVATE WAY— over another's land, 514. (See Wat.) PRIVIES— who, and classification, 170, n. PRIVILEGE FROM ARREST— who are, and when, 62. PROCESS — (see Commencement op Suit ; Summons ; Warrant ; Execution ; Scire - Facias ; Venire; Mittimus, etc;) blanks in effect, 44; return to, conclusive, 147, 148. PROCLAMATION — how to be made, when there is an unlawful assem- bly or riot, R. S., § 6894. PROMISE. (See Contract.) PROMISOR AND PROMISEE— who are so called, 391, n. PROMISSORY NOTE — (as to transfer, etc., of claims not negotiable, see Assignment of Claims;) form of, 698, 917; form of judgment, confessed on a note or claim, 217; parties thereto described, 698 ; when balanca due on is less than three hundred dollars, may be sued before a jus- tice, 15 ; may join in one suit different notes, etc., and other claims against the defendant, 40 ; when it must be filed with the justice, and indorsed and retained by him after judgment, 84 ; when appeal taken, must be filed with clerk of court, ib. ; defendant's signature must be proved, unless, etc., 152, 153 ; made by infant, void, 691, 692; interest on, rate of, and when to commence, 605. (See Interest.) effect of a third person (not the transferrer or holder) indorsing his name on it as surety, 576, et seq. surety in, how discharged : by holder delaying to sue after notice to do so, 582 ; or making new bargain with, or giving further time to principal, or giving up other securities, 579, 739 to 741. rights of surety : on execution, and in respect to stay bail, 583 ; his remedy against co-sureties, 584, 585. (See Execution.) requisites of: as to the date, 700; good, though made on Sunday, ib. to whom payable : to bearer only, or a fictitious person, or in blank, or mistake in name of the payee, 700, 701. the words " order," " bearer," or " assigns,'' or " to the order of" a person, 701. in what it must be payable, 702. fl86 PRO , INDEX. PRO rnoMissoRT NoLE — Continued. when payable : to be negotiable, must be payable at some period, or upon some condition that must happen, 703 ; if no date, or mis- take in date, 703, 704 ; when payable, if due a ciertain number of days or months after date, or on demand, 703 (see Dats ot" Grace • Time) ; when payable " on or before," 704. the words " for value received," not necessary, 704. maker of: is the person who signs and executes the note, 698; no demand on him, in general, necessary before suit, 715; not dis- charged by delay of demand, ib. ; but demand on him neces- sary to render indorsers liable, 716 ; not in general liable for the costs of the indorsers, 716 ; when liable to an innocent holder who received it from a thief, etc., 742, 743. ■who may transfer or indorse, 706, 707. haw transferred: when by delivery only, and when the note must be indorsed, 707, 708 ; when the payee is a fictitious person, 706 ; can not be transferred for part only of amount due on it, 707. indorsement of: who to make, 707; form of, 709 to 711; form of^ by an agent, 343, 709 ; in blank, how made, and its effect, 709, 710, 576 et seq. ; may be filled up by the holder, 709 ; may be stricken out by the holder, 710; if stricken out by mistake, it will not discharge the indorser, 710; in full, what its legal effect,' and the form thereof, ib. ; when so made what will divest the in- dorsee of his legal title to the note, 710, 711 ; to prevent its ne- gotiability, how indorsed, and by whom, 711; waving demand and notice of non-payment, how made, 712 ; without recourse on the indorser, form of, ib. ; directing the money to be paid to the use of the indorser, its effect, 711; or in trust, etc., 708. .conditional indorsement: that note is collectible, 572; that note "will be paid," or, "is safe,'' 573; or, "guaranty payment," ib.; or guaranty fulfillment of within, 579 ; or is good, or maker able to pay, or equivalent wordsj 574. indorser of : is the person who transfers a note by indorsement, 697; conditions upon which he is liable, 716 ; liable only to the person to whom he indorses, and to those to whom the note is afterward transferred, 717, 718 ; may pay it, and then sue all previous par- ties, ib. ; need not in such action produce receipt or reindorse- ment, 718 ; when an indorser is paid by an indorser, all subse- quent indorsers are discharged, 717; can not recover his costs from the other parties, 718, 719 ; can not recover from co-indors- ers a ratable share of amount paid, 718 ; exception to this rule, 585 et seq., 576 ; who pays and takes up the note, may negoti- ate it, 718 ; if he pays note is entitled to its possession, 723 ; always warrants the note not forged, 744; is discharged from lia- bility by the holder delaying to make demand of payment of the maker, 722 ; or by not receiving due notice of such demand and non-payment, 732, 733 ; liability of third person not holder or PRO INDEX. PRO 98T SPbomissobt Note — Continued. party indorsing his name on a note, 576, 578 ; rights and liability of persons indorsing and transferring a note payable to A. or order, if A. has not indorsed it, 578. indorser as surety or guarantor : who are and their rights and liability, 572 to 579 ; how discharged, 579 to 583 ; remedies against the principal, 583 to 585 ; obligations of co-sureties, and contribution between each other, 585. (See also Sureties.) transferrer of, by mere delivery without indorsement, when liable, 718, 719, 693. holder of: who is so called, 697. may sue all the parties at once, 717. «' what time demand to be made : when note is payable on demand, or negotiated after due, or no time of payment mentioned in it, 719, 720; when the time of payment is stated in the instrument, 720, 721 ; must be made during the usual business hours, 722. hmo demand to be made : generally, 723, 724; when the note is expressly made payable at a particular place, 724. when demand of payment need not be made, 730 to 732. notice of non-payment : must be given to indorsers or they will be dis- charged, 732, 733; when it should be given, 728, 729; how it should be given, 725, 726; what the notice should contain and the form thereof, 726, 727 ; to whom and by whom it should be given, 729 ; in what cases the 'notice need not be given, 728 to 733. (See Accommodatiojj Paper.) ■delay in giving notice : when excused, 732. negotiated after due : effect upon liability of parties, 734; when demand should be made upon the maker in such case, 719. Uank note with signatures : how it may be filled up, 704 to 706 ; when good, though not filled up according to agreement, ib 741. note payable on demand: when due, 703; when interest commences on, in such case, 608 ; when demand to be made to charge indorsers in such case, 719, 720. when payable at a particular place : when demand necessary at the place, 724 ; is necessary at the place to charge indorsers, ib. Sscharge of parties : by one giving time to, or releasing or discharging another, 739 to 741. lost or stolen : the rights and obligations of the parties, etc., 741, et seq. ; , how demand made on a lost note, 732 ; rights of innocent holder of such note, 742. accommodation paper : rights and liabilities of parties, 576 et seij. (See Sureties.) sureties in contracts with banks and bankers, 483 ; interest on notes to national banks, 483, 484. iurden of proof : in suit of indprsee against maker, 739. defense to an action on : by the payee against the maker, 733 ; or by the indorsee against his indorser, ib. ; or by an indorsee against the PRO INDEX. E E A Pbomissout Note — Continued. maker, 733, 734; or by an indorser against an intermediate in- dorser, ib. ; or when the note is payable on demand, 736, 737 ; or on accommodation paper, 737, 576, et seq. ; or when given for patent right, 738 ; parol evidence to change terms, 156, 578. days of grace, what they are, and when allowed, 719 to 721. joint action against makers and indorsers, 46, 47. not liable to execution, 282. PROPERTY. (See Ownership op Property; •Sales.) PROOF. (See Evidence.) PROSTITUTION— contracts founded on, when void, 517. PROTEST OF NOTARY PUBLIC— evidence and form, 724. PUBLIC ENEMIES — who are deemed, 451; carrier of goods, not liablo for loss occasioned by, ib. PUBLICATION. (See Advertisement.) PUBLIC WORK— combination among bidders for, 303, n. PURCHASE AND PURCHASER. (See Sales; Ownership of Peopertt.) PUTTING OFF TRIAL. (See Adjournment.) QUANTITIES — ^proof of usage or custom when mentioned in a contract^ 161,162. QUESTIONS. (See Leading Questions.) QUITCLAIM DEED— form of, 907; general requisites of deed, etc., af- feoting land, 904. RAILROAD COMPANY — where sued, 16; summons against, and how served, 48, 55. liable for negligence, etc., of subordinates, 347 to 349. for fires, 662, et seq. ; collision with person at crossing, etc., 658. rights and liabilities as carriers of goods, 451, et seq. (see Carrier OF fiooDs) ; as warehousemen, 457, 458, 467, 468. their rights, liabilities, etc., as carriers of passengers, 471, et seq. statutory lien for work, etc., 617, 630. stipulations in their contracts to protect laborers, etc., 632; implied duties as to platforms, etc., 654, 655; diverting highway or ob- structing crossing, 655, 66 1 ; tickets with conditions as to use, 471,472; stopping over, 471 ; passage on freight train, ib.; free pass, 473 ; injuring animals at crossing or on track, 370 to 375 ; injuring persons on track or crossing, 658; their fences, etc., 370, et seq. ; levy upon cars, 284; levy on the mortgaged property of, 283. EAFT. (See Drifts.) BASURE.' (See Erasure.) RATIFICATION OF CONTRACT. (See Contract; Infants; Partners, etc.) BBAL ESTATE. (See Land; Deed; Crops; Lease; Landlord and Ten ANT.) actiojis on contracts for, can not be brought before a justice, 17. but suits for trespass may, ib. (See Trespass upon Land.) EEC INDEX. K E S 989" • EECALL — of execution upon an appeal, 242 ; upon a stay being taken, 259 to 261. KECAPTION OF PRISONER— in what cases, when, where, and how it may be made in civil cases, 82, 253; in criminal cases, 871, 872. RECOMMENDATION. (See Fraud ; Letter of Ceedit.) RECEIPT— (see also Release;) form of, 918. when in full of all demands, its effect, 330. payment may be proved by a witness, though the party has a receipt, 143. for costs, must be made out when requested, without charge, 236. for rent last due, is presumptive evidence that former rent was paid,^ 139. EECEIVER OF RAILROAD— suits by and against, 357. (See R. S.,. § 1359.) RECITALS — in deeds conclusive upon parties, 170. RECOGNIZANCE— (see Bail;) is specialty, 733; when invalid, 893, n. RECORDER OF COUNTY— liability for official omission of duty, 355, 644. RECORDS AND TRANSCRIPTS— how authenticated, generally, 149, et seq. ; how kept, 200 to 222 ; what entries of docket are record evi- dence, 147, 148. (See Teanscripts.) RECOVERY, FORMER, 201. (See Judgment.) REFERENCE TO ARBITRATION— when suit before a justice may be referred to arbitration, and proceedings in such case, 195, et seq. RELEASE — when release of one of two or more joint debtors or wrong- doers will release all, and when not, 325. so, release of principal will discharge the surety, 579, et seq. fvrm of : of all claims and demands, 918; effect of such release when under seal, 324 ; quitclaim deed, 907. REMIT — wheil parties may do so, and take judgment forTesidue, 193,. 801, 802. RENT — when reserved in kind, landlord has lien on crop, 281 ; liability of lessee, etc., when lease is assigned, 398, et seq. REPLEVIN — in what cases brought, 751, 752 ; how brought, and form of affidavit and writ, 753, 754; the service and return of the writ, with form of undertaking by plaintiff, the appraisement and return, 755 to 757; proceedings after the return of the writ, the verdict, judg- ment, etc., 760, et seq.; forms of verdicts, judgments, and docket entries, 763; disposition of keepsakes, pictures, etc., 757, 758; the effect of the replevin bond, 758 ; substitution of plaintiff in execu- tion as defendant when officer sued, 300; justice tries if no jury asked, 760. REPUTATION OF WITNESS — when and how, and by whom, it may be impeached, 135. REQUEST. (See Demand.) REQUISITION— from sister state, 889. JJESCINDING CONTRACT — how and when it may be done, and right* of narties thereafter, 777 et seq., 857. 990 RBB INDEX. SAL m ^^^ EESCUE — when prisoner is rescued, the officer not liable, 83. form of a return by officer of rescue, 255. KESIDENT OF A COUNTY— who is not a freeholder or householder, may be sued in any township, 46. but must be sued in his own township, if a freeholder or householder of the county, ib. EESIGrNATION — of a justice of his office, how made, etc., 10; proceed- ings thereon, 2, 10. EESTITUTION. (See Foboiblb Entry and Detention ^ Claimant.) RESPONDEAT SUPEEIOE— rules relating to, 349, et seq. EESTEAINT OF TEADE— contracts for, void, 518, 519. EETUENS TO PEOOESS— when conclusive, and when not, 147, 148. (See Summons; Execution; Scire Facias; Mittimus; Warrant; Fobo- IBLE Entry and Detention, etc.) EEVEESAL— of judgment, 244. EEVIVAL— of dormant judgments, 315 to 318. EEWAED — offered for arrest, etc., of felon when valid, 514. EIGHT OF PEOPERTY, TEIAL OF. (See Claimant.) ROAD. (See Highway; Way.) , EOCKS — when carrier of goods liable for loss occasioned by, 462; in- juries by blasting, 352. SABBATH — arrest on civil process can not be made on, 79. contracts good though made and dated on, 700. (See Sunday.) SALES. (See Tender; Warranty; Fraud; Lien; Execution.) token a sale is complete so as to pass the ownership of property : without de- livery to the buyer, 766 to 770; proposition on one side, and ac- ceptance on the other by letter, 768 ; difference between agree- ment to sell and a sale, 770, 771 ; parol proof to change the effect or terms of written contract of sale, 157 to 159; order for prop- erty, when binding and when not, 771; order for making an article, when the article is the buyer's, 772; where the materials, or a part, are found by the manufacturer or employer, whose they are when worked up, ib. ; effect on sale, if the property is burnt or destroyed at time of sale, ib. ; property obtained by sale under false pretenses, may be recovered back, 772, 773; but not if sold by the fraudulent buyer, 773, 774; articles to arrive, 771. time and place of demand and delivery and tender, 774 to 777 ; no excuse for non-delivery by the seller, that the buyer was not at the place to receive them, 776 ; when demand is necessary before suit brought, 774, 775; effect of part performance, 777 to 780; at what time property taken on trial must be returned, 793 ; in suit for price, defendant may reduce the recovery by showing fraud in the quality, or false warranty, 793. (See Fraud; Warranty.) when buyer may show in such action that the plaintiff had not title, 790, 793 ; sale by sample, 788 ; effect on rights of parties by due tender of it, 780 to 783, 821, 822; what seller may do with the SAM INDEX. SET 99t Sales — Continued. "*" property after the tender, 780; damages in such cases, 781, 782. (See Tender.) of the lien of seller for the price of goods sold, 616; (see Lien; Mechanics); manufacturers' implied warranty against defects, 789; when buyer fraudulently intends not to pay seller, he may recover back the goods before the credit expires, 772, 773 ; effect of payment of judgment against a person who wrongfully takes, and keeps an article, 834; owner's right is not divested by finder, thief, or other person wrongfully selling the article, 772. (As to sale of claims, see Assignment. See also Bills op Ex- change; Promissoet Notes; Frauds; Agent; Infants.) SAMPLE— sale by, 788. SATISFACTION. (See Accord and Satisfaction.) SCHEDULE. (See Execution ; Attachment.) SCHOOL BOARD— by what name it should sue, 38. SCHAWL SEAL— of ink, is valid, 698, n. SEAL — may be made of wax, wafer, etc., 698, li. SEARCH-WARRANT— form of affidavit whereon to issue, 887; wheit and in what case it should be issued, 886 ; form thereof, 889 ; how it may be served, 871 ; liability of officer for neglect, dela.y, etc., 872 ; form of return, 873. SECURITY — for costs in civil cases, 22; in criminal cases, 868 (see Bail^ Surety; Judgment); collateral, to secure debt, rights of parties, 396. SEPARATION— of witnesses, 130. SERVANT. (See Master and Servant ; Work and Labor.) SERVICE OF PROCESS. (See Summons; Arrest; Execution, etc.) SERVICES AND WORK. (See Work and Labor.) SET-OFF AND COUNTER-CLAIM — provisions of the code relating to, and how far applicable to actions before justices, 795, et seq. difference between set-off and payment, 689 ; evidence of defendant's set-ofi must be confined to his bill of particulars, 29. (See Bill OP Particulars.) difference between set-off and counter-claim, 800, 801. form of judgment when set-off is allowed, 213, 220. in what actions, and for what debts the defendants may be allowed to make a set-off, 797, 798 ; may remit, but can not withdraw a. part of counter-claim for unliquidated damages, 801, 802. when demand which agent owes may be set off against a debt due to his principal, etc., and when not, 691, 798, 799; when separate debt, due to one defendant, may be set off against a joint de- mand, 798 ; as to set-off of debts due by or to a partner, in suit by or against the firm, 799 ; when the owner of goods may set off against the freight, the injury done them by the carrier, or damages arising from delay in transportation, 460; the assign- ment of a claim does not bar the debtor from his set-off of a de- mand he held against the assignor before notice of the assign- 592 SET INDEX. S T K Set-off and CountertCLAim — ContinuA ment, 394; set-off of contingent liability, 395; when set-off is allowed in suit on a negotiable bond, promissory note, or bil' of exchange, and when not, 733, et seq. SETTLEMENT — is not evidence that items not mentioned were settled 330 ; when it may be corrected by proof of mistake, and when not, ib within what time an action should be brought on a balance fund duf on settlement, 636. (See Account Stated.) SHEEP — (see Steats ;) rot communicated to, 785, 786, SHERIFF — his deed, 549 ; privileged from arrest for debt, and when 63 ; trial of right of property taken by, with forms, etc., 837. SIGNATURE. (See Evidence ; Blank Signattoe.) SILVER COIN— which are a legal tender, 817; its alloy, 817, n. SINGLE BILL— what is so called, 698. jSLANDER — action of, can not be brought before a justice, 17. SNAGS — ^loss occasioned by, 462. SOLDIERS — of the revolution, and those in the service of the United States, privileged from arrest, 61. SPECIALTY— what is so called, 633. SPRINGS— underground, right to, 835 n. STAGE PROPRIETORS. (See R. S., § 4419, et seq.) general duties and liabilities, 471. STAMPS — effect of omission at time required, under the repealed law, 529. STATE "WARRANT— when it should be issued^ 867, 868 ; constable bound to receive it, 872; form of, 867; how served, 871; liability of oflBcer for delay, escape, etc., 872; return to, 872. STATUTES— how proved, 144. STAY OF EXECUTION, 257 to 265. (See Execution.) STEAMBOATS — (see Carrier of Goods;) action against by name, 842; when collision between, which liable for damages, 476 ; duty of those entering port to prevent collisions with those in port, 477. when they must give way in favor of vessels using sails only, ib. ; car- riers of passengers, 471. STOCK IN A CORPORATION— can not be taken on execution, 282; attachment for, and how transfer enforced, 425, n. ; rights of assignee of stock, 395, 614, n. ; subscription to corporation to be organized, 513. .STOLEN PROPERTY— thief can not transfer the ownership of goods, 772; when he can transfer a negotiable instrument so that the holder can, and the owner can not recover on it, 741, 743; a bank-bill or bank-check, 748, 749 ; reward offered to reclaim, 514. STONED HORSE— when he may be taken up as a stray, 811; rights of owner, and proceedings of taker-up, ib. ; penalty for permitting to run at large, 368' STOPPING GOODS BY SELLER, 616. (See Lien.) .STRAYS. (See Drifts.) forms and provisions relating to : generally, 803, et seq.; advertisement, SET INDEN. SUM 993 Stbats — Continued. 804, n. ; oath of taker-up, ib. ; order to appraisers, 805, n. ; oath to appraisers, ib. ; return of appraisement, ib. ; bond of taker-up, 806, n. ; warrant for taking stray from taker-up, and return, 807, n. ; nomination of freeholders to estimate allowance to taker-up, 808, n. ; return of freeholders, 809; bond of purchaser of stray, 810, n. reoord-book of strays must be kept by justice, 813; to whom book to be delivered when his office is vacated, ib. ; copies from, by his successor, evidence, ib. fees relating to : justice and clerk, 805, 806; constable, 809, 810; free- holders and appraisers, 813. STREAMS OF WATER— rights in, 834, n. underground water, 835, n. surface water, ib. STREET — right of abutting owner to, as graded, 832, n. (See Highway ; Wat.) SUBMISSION TO ARBITRATION, 195. (See Arbitrament and Award.) SUBPENA — (see Witness ;) no blanks to be left in, 44 ; issuing, 92. forms of: service and returns- in suits pending before a justice, 92 to 94 ; when party desires a witness to bring papers, 93, n. 1 ; when deposition is to be taken; and how enforced, etc., 109, 112; in criminal cases, 873. may be issued for a' witness, and served in any township in the county, 1 3. fees for issuing, 225 ; for service arid return of, 226. •SUBSCRIBING WITNESS— when he must be produced to prove the in- strument, 152, 153. (See Evidence.) SUBSCRIPTION — for public purpose, or for stock in a corporation not organized, 513. SUBSTITUTION — of justice, when and how appointed, 100. SUCCESSOR — of justice, proceedings of upon his docket, 223. SUITORS OF COURT — privileged from arrest, 62. SUITS. (See Commencement OF Suit ; Action; Parties to Actions.) SUMMONS — no blanks to be left in, 44; against a person of another township or county, 13, 46 ; requisites of, and its indorsements, 47 to 49 • how parties should be described in, 49 to 52 ; when unknown, 50; statement therein of the cause of action, form of, 62 ; form of indorsement, 55 ; within what time and how served, 55 t6 59 ; when and how returned, and form of return, 55, 57; form of, in forcible entry and detention, and when served and returned, 48, 546 ; form of, for jury and its service and return, 96, 97. issuing order of arrest or attachment, does not dispense with, 45. if summons not properly served or returned, and defendant defends against the action, it is equivalent to due service and return, 55. fees for issuing, 224 ; for service, 226. 994 SUN INDEX. SUE SUNDAY — arrest in civil case can not be made on, 79. contracts, etc., good, though made and dated on, 700. when last day for doing act falls on Sunday : under code and justices act allowed to Monday, 825 ; and so on contracts generally, 824, 825 . allowed only to preceding day on commercial paper, 722; no allowance either way when general law prescribes time of doing the act, 824. SUPERVISOR — of roads, not liable to third persons for official negli- gence, 355, 356. SURETY — (see Guaranty ; Letteu op Credit;) rights of sureties of jus- tice, 8, 502, 503; of constable and marshal, 502 to 504; of sureties of other township ofBcers, 503. as to security for costs, appearance on adjourned day of trial, appeal^ stay of execution, etc., see Undertaking; Bail; Appeal, Bxecu TION. sureties upon paper to banks may show the fact, etc., 483; rights and remedies of co-sureties, etc., when property not belonging to the judgment debtor has been sold on execution, 299 to 301. his remedy against his principal, 583 to 585; when sued with his prin- cipal, it may be certified which is surety, 203 ; but not if surety is sued alone, ib. ; form of execution in such case, 271 ; when no stay of execution is allowed in suit by surety against principal, 257. contract of surety will, in general, be void, if not in writing, 566 ; what is sufficient agreement in writing, 566 to 569; when promise need not be in writing, 566 to 569 ; proposition to guarantee not sufficient, unless accepted, etc., 571; when and how a partner may bind the firm as surety, and when not, 675; if partnership not bound, the partner who signs will be, ib. ; contract of surety will, in general, be void, if not founded on a sufficient considera- tion, 569, 570; consideration need not appear in the writing, 570. efifeot of blank indorsement on a claim, 576. (See Blank Signature.) extent of liability of surety : on an official bond, 89, 571 ; not liable be- yond penalty of his bond, 572 ; is liable for interest, ib. for stay of execution : rights and remedies, 260, 263. surety of judgment debtor not liable to special bail, 586. when promise conditional and when absolute, and its effect as to de- mand upon principal and notice to surety, 573 to 575 ; when notice of the acceptance of the guaranty or letter of credit nec- essary, and when not, 574, 575 ; liability of one who never held the note indorsing his name upon it, 576 to 578 ; rights of accom- modation parties to a note, 576, et seq. ; to a bill, 738. how diseliarged : by creditor making a new bargain with the principal or discharging him, 580 ; or concealing facts from surety, 579 ; or giving further time to principal, 580; or parting with other se- curity, 581 ; or by delay of demand on debtor, 573, 574; or delay SUE INDEX. TEN 995 SoRETT — Continued. , to give notice of non-payment to surety, 575 ; or failing to sue principal, 581, 582. effect of discharging or giving time to one of two sureties, 580, 586. remedy of sureties against each other, 585, 586. SURETY FOR GOOD BEHAVIOR, 890. SURGEON — his implied duties, malpractice, 654. SURNAME, 49, 50. (See Mistake.) SURVIVORS — action by survivor of joint, and joint and several prom- isors or promisees, 37 ; judgment when plaintifi" has died, 204, 205, 317, 318. when two or more injure property, they may be sued separately, and judgment had for the damages done by all, 40, ■ of a partnership, 677. SWEARING WITNESSESS. (See Oaths and Apfibmations.) TABLE OF FEES— set up by justice, 226. TALESMEN— in jury oases, 178. (See Jukt.) TAILORS. (See Mechanics.) TAVERN-KEEPERS. (See Innkeepers.) TAXATION OF COSTS— what costs to b© taxed against the plaintiff, and what against the defendant, in general, 229 ; in cases of forcible entry and detention, 552. T> XES — in what kind of money paid, 817 ; time when they become a lien and incumbrance upon land, 907 n. ' TEAMSTERS — are liable as common carriers, 450. (See Cakrieks op Goods.) TECHNICAL TERMS — used in a contract, 159; courts do not require from justice, 246. ' TELEGRAPH COMPANIES— their duties and liabilities, 481, 482. TENANT — (see Landlord and Tenant; Forcible Entry and Detention; Execution.) TENDER. (See also Payment;) at what hour of the day a tender should be made, 775, 776. offer to allow judgment to be taken, and its effect, 814. tender can be made after suit is commenced, by bringing money and costs into court, 820 ; form of proceedings in the last-mentioned cases, 821 n. mi a contract of sale : where and when property to be delivered, 774, 775; what the seller may afterward do with the property, 780; the seller's and buyer's remedy after tender aaid refusal, 780 to 783 ; form of entry on the docket in such case, 821, 822 n. 9» contract/or labor : when and where to be made, 816; the remedy of the parties thereafter, 821, 822 ; form of entry on the docket in such case, ib. n. }n contract for payment of money, and generally : when it may be made, 816 ; to whom and by whom it may be made, 816, 817; in what kind of money, 817; what amount, 818; in what cases the money 63 396 TEB INDEX. TEA Tender — ontinued. must be produced, 818, 819; offer to pay without having the money to produce, is no tender, 819 ; it must be uncondi- tional, ib. general effect of tender is only to save interest and costs, 819. the tender must always afterward be ready on demand to pay, 819. the tender of money is of no effect unless amount is deposited with justice, 820, 821. when the fees of witnesses should be tendered, 93. effect of tender of amount of freight on the lien of the carrier, 460 TERM OF OFFICE— of justice, 5, TESTAMENT. (See Wills.) TESTIMONY — perpetuation of testimony, subpena may issue for, 92. (See Evidence.) THIEF — (see Stolen Property;) reward offered for his arrest, 514. THBEATS — when persons may be recognized to keep the peace on ac- count of, and proceedings in such case, 890; payment of unjust claim under threat of suit, can not be recovered back, 692 ; when contract made under threats may be avoided, 511. TICKET— on railroad, 471, 472. TIMBRE. (See Trees.) TIME — how computed, when years, months, or days are mentioned in a statute, note, or contract, 823 to 826. how oompiited from day of act or date, or time mentioned in a stat- ute, generally, 824 ; in code and justices act, 825 ; in contract, 824, 825 ; when Sunday is the last day, ib., 722 (see Sunday) ; when months or years are computed, 720, 825, 826 ; days of grace, etc., 720; " forthwith," 824. TITLE. (See Ownership op Property; Stolen Property; Possession; Trespass.) suit where the title of lands may be brought in question, can not be brought before a justice, 17; unless the suit is for trespass, or is authorized by a st.atute, 19, 540, 17; how it must be proved in an action of forcible entry and detention, 547 to 551. TOOLS — what are exempt from execution, etc., 274. TOW-BOATS— not common carriers, 450. TOWN PLATS— evidence of, when lost, 151. TOWNS AND CITIES— how far liable for acts of officers, 354, to 356, 832. TOWNSHIP. (See Trustees op Township.) when liable to a person for support of pauper, 509 ; in what name tu sue and be sued, 38 ; how judgment against, may be collected, 269 ; constable to preserve peace, etc., at township meetings, and •to give notice of meeting, and how, 500. effect of setting off new township, upon strays before taken up 813. TOWNSHIP OFFICERS— rights of sureties of, 503. TRADE — contracts in restraint of, are void, 518, 519. TRA INDEX. TKI 997 rWANSCEIPT— of records, etc., as evidence, 145 to 147; form of cer- tificate to autiienticate, 314 ; fees for certificate and transcript, 22.") ; who entitled to, 240 ; who may certify, so as to render it evidence, 240 ; how to proceed to carry into execution the judgments, etc., of an absent, deceased, or exjustice, ib. ; how to proceed on, by suit, generally, 314; to revive judgment, 315 to 318. for an appeal : when to be filed in court by party appealing or other party, and proceedings thereon, 240 to 243. must be made out and delivered to appellant on demand, 240. how proceeded upon by execution in common pleas, 310, 311 ; courts may compel perfect transcript to be furnished, 244. TRANSFER. (See Assignment op Claims not Negotiable; Promissory Note; Bill of Exchange ; Negotiable Bond; Sales.) TRAVELERS. (See Stage Eroprietoes.) TRAVELING FEES— of witnesses, 93. TREES — when they may be taken and sold, and when not, by purchaser of land, 828 ; tenant's right to cut, ib. ; parol contract relating to, 161. when cut down by trespasser, they belong to the landlord, 832. TRESPASS. (See Real Estate ; Joint Wrong-doebs.) upon lands: justice may try title in this action, 18. for what injury it lies, 827 to 830; where action may be brought, 46; may recover in one action for distinct trespasses, 40 ; promoters of, liable the same as if present, ib. ; trespassers may be sued separately, ib. ; amount of recovery against one, its eflFect, ib. ; re- cover from each other of the amount paid, 834, 835. within what time the suit must be commenced, 633. (See Limitatiok OP Actions.) when license to enter implied, 827 ; when it may be revoked, 829 ; when the law gives a license to enter, 829 ; to oflBcer to serve process, ib. ; to traveler when road is impassable, 829, 830. what title or possession the plaintiff must show to maintain the ao' tion, 830 to 834. defense and damages, 834, 836. effect of payment for value of personal property taken, 834. to personal property : where suit may be brought, 46 ; possession suffi- cient to maintain the action, 139, 751; of officer, 287; may re- cover in one action for distinct trespasses, 40; promoters o:^ lia- ble, ib. (see Joint Wrong-do ices) ; trespasser can not sell the prop- erty, 772; costs, if recovery is less than one hundred dollars in suit brought in common pleas, 15, 16. TRIAL — preliminary docket entries, 86; to be on return day of sum- mons, unless adjourned, 86 ; may proceed if one or more of the de- fendants not served, and judgment taken against those served, 86. adjournment of: by consent of parties, for any period, 87 ; by the jus- tice, without consent, for forty-eight hours, S7; for eight days 87 ; and for tv/o days only, in certain oases, 87. T R U INDEX. T R U Tkial — Continued. on application of either party, for thirty days, 87 ; for ninety days, 88 ; affidavits therefor, 88, 89 ; unauthorized, works a discontin- uance, 90 ; place of, when changed, 90. witnesses at : subpeuas for, form, service, and return, 92 to 94; arrest of, fine, etc., for neglect to attend. 94 to 96, proceedings before trial, on trial day, when no order of arrest issued, 98 to 102 ; both parties entitled to one hour after time fixed for ap- pearance, 98 ; justice, if engaged, may postpone time, 98, 101. when either or both parties fail to appear, 98 to 101 ; judgment by default, etc., 98, 99 ; how set aside, 99, 100; notice of conditional opening, 100; entry, if notice not given, 100; docket entry to set aside the judgment, 99. when both parties fail to appear, 100. when justice fails to attend, 101. v)hen another justice may be substituted, 101 ; docket entry for, ib. ■proceedings after order of arrest and before trial, 102 to 106. on adjournment, defendant may give bail, 103; form of the un- dertaking, ib. ; justification of bail, 104 ; defendant can not be kept in custody over forty-eight hours, ib. change of place of trial, 90 to 92; mode of conducting, etc., 181. when and how defendant may have a new trial, 186 ; form of entry on the docket when a new trial is granted, ib. by jury ; in what cases allowed, 96 ; selection of jury, venire, its ser- vice, etc., 96j 97; impaneling talesmen, and challenging jury, 177, 179; form of oath and affirmation to, 179; and to witnesses before, 179, 180 ; to an interpreter, ib. ; the conduct of the trial, 181, 182; the verdict and its form, 182, 183; proceedings when jury can not agree, 184; withdrawing juror, 184; voluntary dis- mission of action by plaintiff, ib. ; payment of jury fee, entry of verdict, and judgment thereon, 186. new trial : when allowed, docket entry for, 186 ; bill of exceptions, when allowed, requisites, and forms of, 186 to 192; docket entry of, 192. by the justice, 193 ; judgment of, when to be entered, 200. (See Judg- ment,) by referees or arbitrators 195. judgments in : when and how entered, effect of, etc., 200 to 206 ; forms of, 206 to 222. (See Judgment.) in criminal cases : may be adjourned over, and how, 873 ; proceedings thereafter, 875 ; what proof of guilt justice should require, 880. TRUNK OF TRAVELER, 474, 475. TRUSTEES — who may appeal without giving appeal bond, 336. TRUSTEES OF TOWNSHIP— (see Township;) how they sue, 38. fix the time of holding elections in certain cases, 2. duties relating to the official bond of justice and constable, 6 to 8, 502 to 504. TUB INDEX. VOL 999 Trustees op Township — Continued. what infants they may bind out to apprenticeship, 376. their duty in relation to such apprentices, 380. determine number of constables, 495. liability for official acts, 355. justices fill vacancies, 841. TUKNPIKES. (See Highways ; Coepo rations.) UMPIRE AND UMPIRAGE— definition of these words, 385. (See Ar- bitration AND Award.) UNCLAIMED MONEY— in the hands of the justice, lists to be set up, etc., 319. UNDERTAKING— jurisdiction of justice in suits on, 14, 16. forms and requisites of, when and how entered into, etc. : for security for costs, 22 ; action upon, 23 ; form of before issuing an order of arrest, 78 ; under an order of arrest upon an adjournment of the action, 103; under an attachment against a witness. 111, 112; for an ap- peal, 239; action thereon, 242; for redelivery of goods attached, 411; for discharge of property attached, 419; for appeal in at- tachment, 421; by sureties of garnishee, 428; fot redelivery of water-craft, 849 ; by plaintiff to obtain attachment, 407 ; in crim- inal cases for costs, 868, 869. .(See Recognizance.) UNITED STATES BONDS— holder of, or of coupons from thief, 742. ONKNOWN DEFENDANT— how described, etc., 50. USAGE OR CUSTOM— what, and how far it affects the terms and con- struction of a written contract, 161, 162. USURY — what rate of interest may be contracted for and recovered, 605. usurious interest may be recovered back, 605 ; as to national banks, 483. VENDOR AND VENDEE— (see Sales;) who are so called, 391, n. ; ad- missions of evidence against those claiming under them, 170. VENDUE. (See Execution; AncTioN.) VENIRE — in jury cases generally, 96. (See Apprentices ; Coroner's In- quest.) form of, on trial of right of property taken by sheriff, 837. fees for issuing, 226 ; for service and return, 226. VENUE— change of, 90. VERBAL TESTIMONY, 156-164. VERDICT, 182. (See Jury.) VESSELS — (as to rights and liabilities, as carriers, see Carrier op Goods;) actions against by name, 842, et seq. ; collision, 462, 476 ; duty of those entering port to prevent collision with those in port, 477; when two vessels are about to meet or crossing each other, which must give way, ih. (See Snags ; Rooks.) VIEW — of premises, etc., may be ordered, 181. VILLAGES— justice acting as mayor, 864, 865. in what name to sue and be sued, 38. (See Cities. J VOLUNTARY APPEARANCE, 45, 55, 414.«' 1000 V T INDEX. WAT VOTERS — at an election privileged from arrest for debt, and when, 63. WAGEE — promise to pay, void, 517. (See Ga.mino.) WAGES — exempt from attachment, 274. (See Work and Labob.) 403. WAGONERS — are liable as common carriers, 450. (See Caeeikr of Goods.) WAREHOUSEMEN — who are deemed such, and for what injuries to or losses of goods they are liable, 450, 465, 466 ; their duties, 467 ; their receipts, 470, 471; criminal oflfenses relating to, 469, 470, 464, n. 1.; their lien, 613 ; rights of assignee of warehousemen's receipt, 469, et seq. WARRANT— in criminal cases : when to issue, 867, 868 ; form of common state war- rant, 867 ; of search warrant, 889 ; constable bound to receive, 872 ; how these writs may be served, 871, 872 ; form of return, 872, 873; liability of officer for delay, etc., in service, and for es- cape, 872; when warrant on account of threats, etc., may be is- sued, 89'0; form of such vrarrant, 891 ; security for costs, 868. in civil cases : against father of a bastard child, and form of, and how served and returned, 486. against a witness, 94; against a juror, 97; for disturbance or con- tempt, 506, 507. *" against water-craft, 848. WARRANT OP ATTORNEY— forms of, to confess judgment, 912. made while in custody, how to be executed, 511. WARRANTY— implied warranty: what is, 787; of title to property sold, 787, 790; when buyer may refuse to pay on account of seller not having title, 790; that the article is merchantable, and fit for the use intended, 788 ; as to manufactured article, 789 ; that sample and bulk is of same quality, 788 ; that provisions sold for domestic use are sound, etc., 789; that claim assigned is not forgery, 744. express warranty : what is, 780; what will amount to a warranty, 791 ; must be made at time of contract, or form part of its terms, 790. made after sale, is void, ib. when not included in the written terms of the sale, is void, 791 ; what defects it covers, and what not, 791 ; remedy of the buyer when the warranty is false, 785, et seq. ; what damages may be recov- ered for breach of, 792, 793. plaintiff must prove the defect, 793. at what time property taken on trial must be returned, 793. in suit for price, the defendant may reduce the recovery by showing a false warranty, 793. master liable on, when made by his servant or clerk, on a sale of his property, 339. WATER— -right to, in streams, 834; in underground springs, ih. ; in surface water, ib. WATER-CRAFT— actions against, by name, 842, et seq. WAT INDEX; WOE 1001 WA> — ^right to over another's land, 514, 828, 829; leaving gate open, 829, n. ; leaving fence down at railroad crossing, 371. WEIGHT — proof of, usage when mentioned in contract, 162; of coin, 817. WIDOW. (See Husband and Wife.) may bind out her minor children as apprentices, 376. WIFE. (See Husband and Wife.) WILLS — how to be made and executed, and revoked, 921, 922; when bequests in, for religious or benevolent purposes, 922; when evi- dence, 151; parent may appoint by will guardians for his children, 923 ; when a verbal wil^ is good, 923 ; forms of wills, 923. WITHDRAWING A JUROR, 184; part of a set-off; 113, 220. WITNESSES — form of oaths and affirmations to, in common cases, 179; when depositions are taken, 116; when before arbitrators, 196; com- petency of, 125 to 128. subpena for issued by justices, 13; issuing, form of, service and re- subpena for issued by justices, 13 ; issuing, form of service and re- turn, 92 to 94 ; demand of fees, 93 ; for taking depositions, form of, 109; questions they may refuse to answer, 135; impeachment of, 135 to 138 ; subscribing to instrument, when must be produced to prove it, 152. deceased or not to be found, secreted or insane, evidence of, on former trial will be received, 168 ; warrant against, fine and r in respec't to the quality of the work, ib. 1002 WRI INDEX. TEA Work axd Labor — Continued. •when laborer is sued for not performing, he can not be allowed for what he has done, 855. compensation when nothing is said as to wages, ib. tender of: under contract for, when and where to be made, 816; when due on demand, ib. ; when time for performance is extended, ib. ; effect of the tender, 821 ; form of docket entry when tender has been made, 821 ; costs in such case, 822, 823. combination among bidders for public work, 303, n. (See Tekdeb.) can counterclaim negligence in action to recover wages, 358. WRITINGS — as evidence, 144; how execution of proved and when the proof not required, 152 ; copies must be given to opposite party if required, 156. WRITS. (See Summons; Veniee; Executiok; Warrant; Mittimus; Ordep OF Arrest, etc.) YEAR — when mentioned in a statute, note, contract, etc., how computed 826.