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/cu31924018809800 
 
Analysis of American law. 
 
 3 1924 018 809 800 
 
 (Snrnrll Cam ^ri|0nl ICibrara 
 
AE'ALYSIS 
 
 OF 
 
 AMEEICAN LAW. 
 
ANALYSIS 
 
 OS 
 
 AMEEICAN LAW. 
 
 BT 
 
 THOMAS W. POWELL. 
 
 PHILADELPHIA: 
 
 J. B. LIPPINCOTT & CO. 
 
 1870. 
 
Entered, according to Act of Congress, in the year 1870, by 
 
 J. B. lilPPINCOTT & CO., 
 
 In the Clerk's Office of the District Court of the United States for the 
 
 Eastern District of Pennsylvania. 
 
PREFACE. 
 
 This volume is intended only as an outline of the law, — as a first 
 book for those who are disposed to make it a study. It will be the 
 mere alphabet of their future acquirements. It is intended to enable 
 the student to obtain a general view of the whole, before he enters into 
 a more special and particular study of any one of the many subjects 
 which constitute the great body of the law. Such general outline and 
 analysis is needed by every student' in\any ?«d whatever science he 
 may be engaged to study, without which he would be groping in the^ 
 dark over an unknown way, where he would know nothing about his 
 relative position ; like a traveler without a map or guide-book, who, 
 after he has passed through, begins to know enough about his way 
 and relative position to desire to go over it again, with the hope that 
 the next time he may learn something that he can understand, when by 
 the aid of such a chart, outline, or analysis he would have been so 
 prepared for the more thorough study of his subject, by which he would 
 be able more fully to comprehend at once, than by a repeated perusal 
 without such preparation and aid. 
 
 It was with a view to furnish such aid to the law student that this 
 analysis was undertaken ; but with whatever success, the author must 
 be permitted to say that much of what will be useful to the student in 
 the future progress of his study will be learned by its diligent perusal. 
 And he hopes that the student will find it such ; though there are some 
 who are always ready to advise a different course, who, with more pre- 
 tension than wisdom, will say to the student, " Plunge at once in medias 
 res," and give their students Chitty's Pleadings, or Sugden's Law of 
 Vendors, or, what is still worse, the New York or Ohio Civil Code, 
 with a profusion of notes, references, and comments, as a highway to 
 immediate practice. To those who have faith in this course this book, 
 it is feared, will be of but little use. 
 
 (V) 
 
vi PREFACE. 
 
 It was with such views that the author endeavored to produce a 
 general outline and analysis of the law, within one volume of conven- 
 ient size, for the student to command at all times for his own use, and 
 enable him to learn at the commencement of the study the general out- 
 lines of the law, its divisions and technical terms. "When this is accom- 
 plished, the student will then be better prepared — with better hopes 
 of success — to grasp any one of the great divisions or subjects of the 
 law. In doing this, and keeping his work within the bounds of one 
 volume, the author has had as great a struggle in determining what to 
 keep out as what to put into it ; for it would have been easier to have 
 made two volumes of it than to have kept it within the bounds of one. 
 
 In arranging this Analysis^ the author has followed the arrangements 
 of Mr. Justice Blackstone, who followed the Analysis of Lord Hale in 
 his preface to Rolle's Abridgment. But it is hoped that an improve- 
 ment will be readily admitted in this Analysis over that of Blackstone's 
 Commentaries. Each is divided into four books : Blackstone into, — 
 Rights of Persons, Rights of Things, Private Wrongs, and Public 
 Wrongs. This Analysis divides the whole body of the law into these 
 four well-known divisions: Public, Private, Civil, and Criminal Law, 
 which may well be claimed to be a division of the law "according to 
 its natural order." For the reasons of adopting this mode and division 
 of the subject the reader is referred to the commencement of the fii'st 
 book of this Analysis, and he will there see bow naturally the law will 
 fall into these fourfold divisions, and it is that which is the easiest to 
 be followed in the study. 
 
 The reader will readily perceive how naturally this order of division 
 of the law follows one after another through the whole course. Law 
 is that which flows from public institutions, and therefore it is natural 
 and proper that we should begin with Public Law, which develops 
 those rights which belong or appertain to the public, and those obliga- 
 
 1 This Analysis is founded upon the laws of the United States and those of the 
 Stateof Ohio. So far as the laws of the Union are concerned, this book is equally 
 applicable to every State. But so far as State laws were concerned, it was neces- 
 sary that an author should take that of his own State. This will be of little incon- 
 venience to students in other States. The laws of the United States, and the com- 
 mon law, upon which the work is based, are the same in all the States. The 
 difference found in it from the laws of any other State is only in relation to stat- 
 utes, which can be easily noticed by the diligent student. 
 
PREFACE. vii 
 
 tions which flow from such institntions to the people. Next are those 
 rights which appertain to persons as private citizens (and it is notice- 
 able that all rights must be either public or private), and this consti- 
 tutes our second division — that of Private Law, which develops all 
 those rights which may be claimed by any private person, either as his 
 absolute, civil, or political, and, of course, his rights of property, and of 
 his domestic relations. When these rights are thus disposed of, the 
 next consideration is the converse of these rights, which is wrongs, and 
 which, of course, must relate to those rights, and must like them be 
 divided into private and public wrongs. These private wrongs and 
 injuries, which do not concern the public, are redi-essed by civil reme- 
 dies, and therefore this division is denominated Civil Law. Then 
 come, lastly, those wrongs and injuries which affect the public, — public 
 offenses or crimes, — which form our fourth division, — or Criminal Law ; 
 and which are thus treated, each in a separate book, in our Analysis. 
 Thus, the whole law is included in these four divisions, — Public, Pri- 
 vate, Civil, and Criminal Law. 
 
 The student is advised to follow this course of the Analysis as his 
 course of study. After thoroughly studying the Analysis, let him take 
 the first book, and, in conjunction with it, read the first volume of 
 Kent's Commentaries, and Story's Commentaries on the Constitution. 
 This will comprise what must for the present suffice for the study of 
 the Public Law. 
 
 For the second part of his course, let the student take the second 
 book of the Analysis ; then the second, third, and fourth volumes of 
 Kent's Commentaries, Williams on P^eal Property, Williams on Per- 
 sonal Property, and Parsons's Law of Business. 
 
 For the third part, take the third .book of the Analysis, Broom's 
 Commentaries on the Common Law, the third volume of Bouvier's 
 Institutes, Stephens's Pleading, Powell's Evidence, Kcri-^ Action at 
 Law, Taifany and Smith's N. Y. Practice, Barton's Suit in Equity, 
 Adams's Equity, Holcombe's Equity, and Lube's Equity Pleading. 
 
 For the fourth part, take the fourth book of the Analysis, Archbold's 
 Criminal Pleading and Evidence (and the old small edition for his 
 present purpose is the best) ; examine Chitty's, and Wharton's, or 
 Bishop's Criminal Law, and close with Broom's Maxims. 
 
 Accompanying the reading of these books, there are certain other 
 
viii PREFACE. 
 
 books that should and must be read as a collateral course, that may be 
 considered as lighter and general reading. In giving this course of 
 reading, it is taken for granted that the student has first complied with 
 the recommendations of every master who has written upon the sub- 
 ject, including Warren, Brougham, and all, and that is, that he has, 
 previous to the commencement of his law studies, made that proficiency 
 in his historical and scientific knowledge and attainments as will place 
 him on a level, at least, with those who aspire to become respectable 
 members of a learned profession, and that is so necessary in order to 
 place himself — as Bolingbroke in his Letters on History says — "on 
 the vantage ground of science, instead of groveling all their lives below 
 in a mean but gainful application to all the little arts of chicane. Till 
 this happens, the profession of the law will scarce deserve to be ranked 
 among the learned professions, and whenever it happens, pne of the 
 vantage grounds to which men must climb is metaphysical and histori- 
 cal knowledge." Taking for granted that this has been attained, then 
 the following list is given and commended : "Warren on the Study of 
 the Law, Blackstone or Stephens's Commentaries, Creasy's Rise and 
 Progress of the English Constitution. Then as some means of making 
 some acquaintance with civil or Roman law and comparative jurispru- 
 dence, let the student next read in this collateral course the chapter 
 on the Civil Law in Gibbon's Decline and Fall of the Roman Empire, 
 Grapel's Sources of the Civil Law, Cushing's Introduction to the Study 
 of the Roman Law, and also, at least, the Institutes of Justinian 
 (Cooper's Justinian).' This will be but a moderate list of books to be 
 mastered preparatory to the student's admission to the profession. 
 
 These two sets of law books the student is advised to have at his 
 command, and to be read concurrently, — the first list as his text-books, 
 which he should thoroughly master, as to their principles, definitions, 
 and terms ; 'the second list more as a matter of general reading and 
 general information. Such is Warren's Law Studies. And although 
 Blackstone's Commentaries is put into this list, on account that so 
 much of it has become obsolete and changed (and for this reason 
 Stephens's is preferred), still, for the great merits of Blacksione, his 
 Commentaries should be read with care on account of what it con- 
 tains upon the history of the feudal system, and the origin of many of 
 our own institutions, as well as its being one of those books that may 
 
PREFACE. ix 
 
 well be used in comparison with our present institutions and laws, as a 
 subject of comparative jurisprudence. It is much in the same view that 
 the books on the Roman or civil law are recommended. For it is con- 
 sidered that the comparison of one system of science with another is a 
 very beneficial way of obtaining a proficiency in them ; and as it is so 
 in comparative anatomy and other sciences, so it may be in compara- 
 tive jurisprudence, both a profitable and interesting study. 
 
 The civil law has so frequently been recommended by the best men in 
 the profession on account of its own merits, that it becomes unneces- 
 sary to repeat their commendations here. It may, however, be remarked 
 that it is said of Gen. Hamilton, — that great model of a lawyer, — that 
 he was in the invariable practice of putting into the hands of his stu- 
 dents the Institutes of Justinian at the commencement of their legal 
 studies, saying that whatever sound principles of law he possessed, he 
 was indebted to the Institutes for them.' 
 
 In giving a preference to Stephens's Commentaries over those of 
 Blackstone, and putting these in the collateral studies, it is due to the 
 great obligation that the profession owe to Blackstone to say, that 
 Stephens has adopted and embodied in his Commentaries the whole of 
 Blackstone that was not superseded by new law or bad not become 
 obsolete. Stephens weaves into his new work the whole of Black- 
 stone's Commentaries that had not thus become obsolete and super- 
 seded, adding to it such matters as the change of the times called for, 
 instead pf that which was so stricken out. Stephens then adopts a new 
 arrangement of his topics, instead of Blackstone's Analysis, and con- 
 siders it an improvement in the arrangement of studies. His prefer- 
 ence for this change is doubted as being founded in wisdom, but at the 
 same time a preference is now given to him over Blackstone, because 
 Stephens's Commentaries contains all that is valuable of Blackstone, 
 with such new matter as the change in the times required. This new 
 arrangement is not considered objectionable in our course of study, 
 for the reason that it presents the same subjects in a new and different 
 light from either Blackstone or the Analysis ; and that may be an ad- 
 vantage to the student. For the difierent views that different authors 
 may give of the same subject-matter, and the different stand-point in 
 
 • See Anthon'a Introduction to his Nisi Prius, page xviii. 
 
X PREFACE. 
 
 which the student may view it, may be of advantage to him, though 
 he may be again going over the same ground. 
 
 In the connection just mentioned, it was with regret that Chitty's 
 Pleading was left out of our list, for in the whole range of a lawyer's 
 library there is no author in the law who has conferred upon the pro- 
 fession so great a favor by his labors as Mr. Chitty did by his Treatise 
 on Pleading, and are now highly recommended to the student. 
 
 Parsons's Book for Business Men is also highly recommended as a 
 very useful book for the student, notwithstanding its appearance and 
 the peculiar way its author merely recommends it to men of business, 
 as to give it the appearance of those books which are intended (as they 
 pretend) to make every man his own lawyer. But that is not its char- 
 acter, and it is as far from it as any book to be named as valuable for 
 the student. It is, in some respects, the cream of quite a number of 
 most valuable books of its learned author. Although it is destitute of 
 notes, references, and cases, which to a practicing lawyer are often the 
 most valuable and interesting portion of a book, etill, they are of little 
 or no value to the student, and he has lost nothing in the value of the 
 book on account of their absence. These profuse, copious, and often 
 irrelevant and undigested notes, references, and comments are frequently 
 to the student a source of annoyance, and sometimes so to the practi- 
 tioner. It is said that Mr. Talcott, a distinguished attorney-general of 
 New York, while arguing a case in court, once called for a copy of the 
 code. One was soon handed to him, iilled with such notes and refer- 
 ences ; upon seeing it Mr. T. exclaimed, " Oh, don't give me that ; give 
 me one in its purity ; I would as soon read the whirlwind as that." 
 
 The student is adn\onished that he should study diligently all that 
 is pointed out in the above course ; and that be ought not to hurry it 
 through in two years (the shortest time allowed by our law for an ad- 
 mission), though it may be accomplished in that time with industry and 
 perseverance. But the student is begged not to hurry through his 
 studies as though all were accomplished when his admission was 
 attained. For let him be assured that his mere admission is of little 
 consequence. The question after all is, What are his professional attain- 
 ments ? Which will certainly be fully discovered and appreciated accord- 
 ing to their merits upon his Coming to the practice; which can only be 
 -satisfied by a continued course of industrious and persevering study, as 
 
PREFACE. xi 
 
 well after as before his admission ; and this, too, for the very love of 
 the study and profession, without regard to his business. Tlie life of 
 a sound lawyer is a life of hard study, and nothing short of it will 
 secure to him that reputation. Nothing, therefore, is gained by hurry- 
 ing into the practice before the student has attained that full share of 
 professional knowledge and attainments which is certainly necessary to 
 sustain the position which his ambition has attained. 
 
 As an authority for what is here said let us turn to Coke's Littleton 
 and read there what that venerable father of the law, Lord Coke, has 
 written upon this very subject ; and though written nearly three hun- 
 dred years since, it is equally true npw as then, and which has since 
 been read by thousands of worthy votaries of the law, and regarded as 
 a true and just admonition. It is this : " I would advise our student,"^ 
 that when he shall be enabled and armed to set upon the year books, 
 or reports of the law, that he be furnished with the whole course of the 
 law, that when he heareth a case vouched and applied, either in West- 
 minster-hall (where it is necessary for him to be a diligent hearer, and 
 observer of eases of law), or at reading or other exercises of learning, 
 he may find out and read so vouched ; for that will both fasten it in 
 his memory, and be to him as good as an exposition of that case. But 
 that must not hinder his timtely and orderly reading, which (all excuses 
 set apart) he must bind himself unto; for there be two things to be 
 avoided by him, as enemies to learning, prsepostera lectio and prsepro- 
 pera praxia" {i.e. confused reading and overhurried practice). 
 
 So, again, he has written :^ " For after our student is enabled and 
 armed to set on our year books, or reports of the law, let him read first 
 the latter reports, for two causes. First, for that for the most part the 
 latter judgments and resolutions are the surest, and therefore it is the 
 best to season him with them in the beginning, both for the settling his 
 judgment, and for the retaining of them in memory. Second!}', for that 
 the latter are more facile and easier to be understood than the more 
 ancient : but after the reading of them, then to read these others before 
 mentioned, and all the ancient authorities that have written of our law; 
 for I would wish our student to be a complete lawyer." 
 
 Such was the advice of that great master of the law, and which has 
 
 1 1 Co. Lit. fol. 70, a. 2 2 Co. Lit. fol. 249, b. 
 
xii PREFACE. 
 
 received the approbation of every good lawyer from his day to this ; 
 and though we have now a more expeditious mode of traveling by 
 railroads and steam, yet no more expeditious mode of acquiring a com- 
 petent knowledge of the law. 
 
 Lord Coke's advice as to the manner and mode of study is judicious 
 and wise : first, " that he be furnished with the whole course of the 
 law," that he may have at his command the whole rudiments and prin- 
 ciples of the law well arranged in his mind; that he may understand 
 the various subjects and divisions of the law, and their relative posi- 
 tions and relations to each other, as they may be in the outline and 
 analysis of the law, that he may be a master of it. And next, that he 
 enter upon reading the reports, and begin with the most recent, for the 
 reasons he wisely assigns. 
 
 But in all his reading, let the student be sure to " get wisdom and 
 understanding," — the reason of the law ; for without understanding the 
 reason |of the law the student makes but little progress toward the 
 "vantage ground of the science." 
 
 The author, before closing this preface, deems it proper to annex an- 
 other list of books, as a good selection, which may aid the student in 
 his study, both before and after his admission, if after, he be at all am- 
 bitious of an elevated rank in his profession, 
 
 Delaware, Ohio, 
 
 December 6, 1869. 
 
SELECTION OF LAW BOOKS FOR STUDENTS. 
 
 PKIMART OK TEXT-BOOKS. 
 
 Vols. 
 
 Analysis of Amer. Law 1 
 
 Kent's Commentaries 4 
 
 Story on the Constitution 2 
 
 "Williams's Real Property 
 
 "Williams's Personal Property 
 
 Parsons's Law for Business Men 
 
 Broom's Com. Law 
 
 Bouvier's Institutes. 3d vol 
 
 Stephens's Pleading 
 
 Powell's Evidence 
 
 Kerr's Action at Law 
 
 Tiffany and Smith's Practice (N.Y.) 
 
 Barton's Suit in Equity 
 
 Adams's Equity 
 
 Holcombe's Equity 
 
 Lube's Pleading in Equity 
 
 Archbold's Crim. Plea and Evidence 
 
 Chitty's Crim. Law 3 
 
 "Wharton's " 3 
 
 Bishop's " 2 
 
 COLLATEEAL AND GENEKAL KEADING. 
 
 Vols. 
 
 "Warren's Law Studies 1 
 
 Creasy's English Constitution 1 
 
 Blackstone's Com 4 
 
 Stephens's Com i 
 
 Bishop's Eirst Book 1 
 
 Swan's Pleading under the Code 1 
 
 Gibbon's Chapter on the Eoman or 
 Civil Law in his History of the 
 Eoman Empire. 
 
 Grapel's Sources of Civil Law 1 
 
 Cushing's Introduction to do 1 
 
 Institutes of Justinian (Cooper's).... 1 
 
 "Wheaton's National Law 1 
 
 Dean, or Chitty, or "Wharton on 
 Medical Jurisprudence 1 
 
 On the subject of books, the student will gain much from Bishop's 
 First Book of the Law. Bibliography is a part of a lawyer's study 
 that should not be neglected. I once knew a lawyer of considerable 
 talent and acquirements, who for several years had on his shelf Durn- 
 ford and East's Reports (8 vols.), and did not know (much to his dis- 
 credit) that he possessed the Term Reports. 
 
 (xiii) 
 
SELECTION OF LAW BOOKS FOR THE COMMENCE- 
 • MENT OF A LIBRARY. 
 
 Cruise's Eeal Prop. Greenleaf s Ed.. 3 
 
 Chitty's Pleadings 3 
 
 Gould's do 1 
 
 Bishop's Marriage and Divorce 2 
 
 Fonblanque's Equity (Loussat's) 1 
 
 Greenleaf s Evidence 3 
 
 Hilliard's Bankruptcy and Insol- 
 vency 1 
 
 Parsons's Partnership 1 
 
 Contracts... 3 
 
 Mercantile Law 1 
 
 Notes and Bills 2 
 
 Eeeves's Domestic Eelations 1 
 
 Kedfield on Wills, etc 2 
 
 on Kailroads 2 
 
 Spence's Equity 2 
 
 Story's Conflict of Laws 1 
 
 Equity Jurisprudence 2 
 
 Equity Pleading 1 
 
 Starkie's Evidence 1 
 
 Sugden's Vendors 2 
 
 Tidd's Practice 2 
 
 , Washburn's Keal Property 2 
 
 Phillips's Evidence, by Cowen, etc.. 4 
 
 Vols. 
 
 Powell's Mortgage 3 
 
 Bacon's Abr. (Bouvier's) 10 
 
 Bouvier's Law Dictionary 2 
 
 Coke on Littleton (Thomas's) 2 
 
 Domat's Civil Law 2 
 
 Leading Cases, American 2 
 
 Railway 2 
 
 English 6 
 
 in Equity 3 
 
 Smith's 3 
 
 Criminal Cases (Eoss) 3 
 
 Parsons's Maritime Law 2 
 
 Eawle's Covenants for Title 1 
 
 Eussell on Crimes 2 
 
 Eoscoe's Crim. Ev 1 
 
 Selwyn's Nisi Prius 2 
 
 Sedgwick on Stat, and Const. Law .. 1 
 
 on Damages 1 
 
 Smith's Com. on Constitutional Law 1 
 
 Contracts 1 
 
 Landlord and Tenant 1 
 
 Mercantile Law 1 
 
 Hallock's International Law 1 
 
 Greenleaf's Overruled Cases 1 
 
 These two lists of law books will form a very respectable library for 
 a lawyer to begin with. The first (the student's library) will cost 
 about $150 ; the second, about $400. There are no reports among 
 them, for the reason that the same amount of money will procure 
 that which is more useful to the practitioner for every-day use than 
 the same amount of reports. Such books as Phillips's Evidence, by 
 Cowen and others, Powell on Mortgages, the Tieading Cases, and 
 Bacon's Abridgment, in all 36 vols., will afford a library which, in 
 practice, will give him far more frequent authorities than the same 
 amount of reports. Phillips, Cowen, and Powell on Mortgages, have 
 in them a vast amount of notes and references, very valuable to the 
 practitioner, although not well digested, and much in the character of 
 the whirlwind. But the lawyer should have the reports and read and 
 consult them ; but, until he is able to purchase, he can have access to 
 them at the public libraries. He should, however, procure the reports 
 of his own State as soon as practicable, beginning with the most recent, 
 (xiv) 
 
ANALYSIS OF THE LAW. 
 
 ANALYTICAL TABLE. 
 
 I. Of the "Whole Volume. 
 
 Eights, i I'ublic Eights, or PuHic Law Book I. 
 
 l Private Eigiits, or Private Law " II. 
 
 J Private Wrongs, or Civil Law " III. 
 
 '=■ t Public Wrongs, or Criminal Law " IV. 
 
 /■ The Study of the Law Chapter I. 
 
 II. Introdttction. J The Law in General .' " II. 
 
 I Its Application to U. S " III. 
 
 Law. 
 
 TABLE OF CONTENTS OF THE INTRODUCTION. 
 
 CHAPTEE L 
 
 THE STUDY OF THE LAW. 
 
 1. The importance of the law ; and whose duty it is to study it g 1-7 
 
 2. The course to be pursued in the study 8-10 
 
 3. The requisite genius and talent for the profession .' 11-13 
 
 4. The course of study for the law student 14,1.5 
 
 5. Lord Brougham's advice 16-20 
 
 Observation thereon 21-26 
 
 Abernethy's advice as to study 27 
 
 6. The requisite general intelligence in the pursuit of the law as a science ; 
 
 and the use of its analysis 28-30 
 
 CHAPTEE IL 
 
 THE LAW IN QKNEEAL. 
 
 1. The general scope and meaning of the law 1,2 
 
 2. Which includes : 
 
 1. Natural law 3-7 
 
 2. Moral law 8-17 
 
 3. Political law 18-25 
 
 4. Law of nations 26-28 
 
 5. Municipal law 29-31 
 
 CHAPTEE IIL 
 
 THE APPLICATION OF THE LAW, AND EXTENT OF TERKITORY OF THE 
 UNITED STATES. _ , 
 
 1. The extent of territory, and character and origin of its population 1-3 
 
 2. A douhle government^ its function and operation 4-6 
 
 3. The different objects of the U. S. government and that of the State. 
 
 The first a more centralized, and the latter a more diffused adminis- 
 tration 7-14 
 
 (XV) 
 
III. 
 
 IV. 
 
 V. 
 
 VI. 
 
 VII. 
 
 VIII. 
 
 IX. 
 
 X. 
 
 XI. 
 
 xvi CONTENTS. > 
 
 BOOK I. 
 
 ANALYTICAL TABLE. 
 
 ■Putlic Eights and Law apply to : 
 
 I. Artificial persons. 
 
 1. The State. Government and Laws Chap. I. 
 
 1. Of the United States " H, 
 
 1. Legislative or Congress 
 
 2. Executive Department 
 
 3. The Judiciary Department 
 
 4. Incidental powers of U. S 
 
 2. Of the State of Ohio 
 
 1. The legislative, General Assemhly 
 
 2. The Executive 
 
 3. Jufliciary 
 
 2. Judicial powers and limitations (of hoth) 
 
 II. Natural persons. 
 
 1. Puhlio Officers. Magistrate " XII. 
 
 1. Executive and Ministerial. 
 
 2. Judicial. 
 
 2. The people. 
 
 1. Citizens. 
 
 2. Aliens. 
 
 3. Denizens. 
 
 CHAPTEE I. 
 
 GOVBENMKITT AND LAWS. 
 
 1. Law — defined and analyzed ? Ij 2 
 
 2. Government, an artificial person, suhject to laws 3-7 
 
 l._ Its division into departments; legislative, etc 8 
 
 2. The division of State and Federal government 9,10 
 
 3. The formation of the State and Union — function of each 11-13 
 
 CHAPTEE IL 
 
 GOVEKNMENT 01' THE UNITED STATES. 
 
 1. Its history and formation 1_4 
 
 2. Constitution, not a confederation but a union of its people 5, 6 
 
 3. Government of the U. S. limited to certain objects 7-9 
 
 4. Federal authority within its jurisdiction — paramount 10, 11 
 
 CHAPTEE IIL 
 
 CONGRESS. 
 
 1. Legislative powers of U. S. in Congress 1 2 
 
 2. Its organization 8-6 
 
 3. Its powers and its limitation 1-1\ 
 
CONTENTS. xvii 
 
 4. The method of enacting laws in Congress J 15-18 
 
 veto powers of the President 19 20 
 
 5. Statutes — positive laws ; general or special 21,22 
 
 Contrary to the Constitution, void 23 24 
 
 How construed 25 
 
 CHAPTER IV. 
 
 EXECUTIVE OF THE UNITED STATES. 
 
 1. The President — his office and term of service 1, 2 
 
 1. His election 3_6 
 
 2. His qualification 7-9 
 
 3. His powers and duties 10-14 
 
 2. The limitations on the powers of the President 15 
 
 3. The several executive departments 16 
 
 • 
 
 CHAPTER V. 
 
 JUDICIAKT OP THE. UNITED STATES. 
 
 1. Judiciary limited to the affairs and interest of the Union 1,2 
 
 2. Extends to all cases of law and equity under the Constitution 3,4 
 
 1. SupremeCourt and its jurisdiction 5-8 
 
 2. Inferior courts and their jurisdiction 9-13 
 
 3. General principles as to their jurisdiction 14 
 
 4. Principal officers of U. S. courts 15-17 
 
 5. Adjudication as to this jurisdiction 18-23 
 
 CHAPTER VI. 
 
 INCIDENTAL P0WEK3 OF THE UNITED STATES. 
 
 1. The Constitution intended a national union 1 
 
 2. The United States have power, expressed or necessarily implied — 
 
 1. As to regulate commerce among the several States 2, 3 
 
 2. As to citizenship of the several States 4 
 
 3. As to money, currency, and weights and measures 5, 6 
 
 4. As to post-offices and post-roads 7 
 
 5. As to useful arts and sciences — patents, etc 8 . 
 
 6. As to the militia, etc 9, 10 
 
 7. As to the authentification of records, etc 11, 12 
 
 CHAPTER VII. 
 
 THE STATE OF OHIO. 
 
 1. The sovereignty of the State 1-5 
 
 2. Bestrictions of the Constitution of the United States 6-8 
 
 Immunity of the State 9 
 
 2 
 
xviii CONTENTS. 
 
 CHAPTEE VIII. 
 
 LEQISLATUKB OP THE STATE. 
 
 1. General Assembly, its organization and powers ? 1-4 
 
 2. Its mode of proceeding and duties 5-11 
 
 3. Statutes. 
 
 1. Various restrictions 12-17 
 
 2. Construction of — rules 18-20 
 
 3. Acts done under 21-23 
 
 CHAPTEK IX 
 
 KXEOtTTIVE OE THE STATE. 
 
 1. The officers constituting the executive of the State 1, 2 
 
 2. The Governor's powers and duty 3-7 
 
 3. To see the laws executed, command officers of the State, county, etc... 8-12 
 
 CHAPTEK. X. 
 
 JUDICIARY OP TUE STATE. 
 
 1. Its jurisdiction, vested in certain courts 1,2 
 
 2. Enumeration of the courts and their organization 3-6 
 
 3. Election and qualification of the judges 7, 8 
 
 4. Officers and organization of the courts 9, 10 
 
 5. Jurisdiction of the several courts, and in general 11-27 
 
 CHAPTER XI. 
 
 JUDICIAL POVyEKS AND LIMITATIONS. 
 
 1. Judicial powers of the State with reference to U. S 1-6 
 
 2. The following limitations may be enumerated: 
 
 1. On the Constitution itself, how amended 7-9 
 
 2. As to appropriations 10-12 
 
 3. As to counties and municipalities 13^ 14 
 
 4. As to corporations 15 16 
 
 5. As to education and religion 17 18 
 
 6. As to the administration of justice 19-25 
 
 7. As to offices and officers 26 
 
 8. As to taxes and public debt 27-29 
 
 CHAPTEPv XII. 
 
 M AGIST KATES AND TEOPLE. 
 
 1. Magistrates and persons in official stations 1_5 
 
 1. Executive and ministerial. 2. Judicial 6 7 
 
 2. People in reference to the State...' 8 9 
 
 1. Citizens — naturalized and native 10-16 
 
 2. Aliens. 3. Denizens 17-19 
 
 3. Allegiance as applied to the several classes 20 21 
 
CONTENTS. xix 
 
 BOOK II. 
 
 ANALYTICAL TABLE. 
 
 Private Eights — Private Law. Relates to: 
 I. Natural persons have — • 
 
 1. Absolute rights, as to the person. 
 
 1. Personal liberty. 
 
 2. Personal security. 
 
 3. Eight of conscience. 
 
 2. Absolute as to property. 
 
 1. Eeal property, and tenure. 
 
 1. Incorporeal property. 
 
 1. Commons. 
 
 2. Ways and easements. 
 
 3. Franchises. 
 
 4. Annuities. 
 
 5. Eents Chap. I. 
 
 2. Corporeal property. 
 
 1. Estates in real property. 
 
 1. Freehold of inheritance. 
 
 2. Freehold not of inheritance, 
 
 3. Estate for years, or leasehold Chap. II. 
 
 2. Eeal property upon and trust. 
 
 1. Conditional estates and trust — 
 
 1. Expressed; 2, implied; 3, resulting. 
 
 2. Mortgage Chap. III. 
 
 3. Estates as to tenants. 
 
 1. In possession. ' 
 
 2. In expectancy. 
 
 1. In remainder, 
 
 2. In reversion. 
 
 3. As tenancy in severalty. 
 
 2. Joint tenancy. 
 
 3. In common Chap. IV. 
 
 4. Title to real property. 
 
 1. By operation of law Chap. V. 
 
 1. By descent. 
 
 2. By escheats, etc. 
 
 2. By acts of the parties. 
 
 1. By deed, etc. 
 
 2. By record Chap. VI. 
 
 2. Personal property and title. 
 
 1. Title by occupancy, etc Chap. VII. 
 
 2. By legacy and succession Chap. VIII. 
 
 3. By contract generally Chap, IX. 
 
 4. By certain enumerated contracts. 
 
 1. Gift; 2, sale; 3, labor. Chap. X. 
 
 2. Bailment Chap. XI. 
 
 3. Negotiable paper, etc Chap. XII. 
 
XX CONTENTS. 
 
 2. Eelative rights. 
 
 1. Civil, agencies, powers, etc Chap. XIII. 
 
 2. Domestic relation, husband and wife, etc Chap. XIV. 
 
 II. Artificial persons — corporations Chap. XV. 
 
 CHAPTEE I. 
 
 ABSOXUTK RIGHTS AND PKOPKKTir. 
 
 1. I. Private persons, natural and artificial ? 1 
 
 1. Absolute rights, person and property. 
 
 1. Personal liberty, habeas corpus, etc 2-7 
 
 2. Personal security 8-10 
 
 3. Conscience and political sentiment 11 
 
 4. The acquisition and enjoj'mcnt of property 12-17 
 
 2. II. Eeal property and tenure 18-30 
 
 3. 1. Incorporeal property in general 31,32 
 
 1. Commons; 2, ways, etc.; 3, franchises, etc 33-42 
 
 CHAPTER II. 
 
 ESTATES — rKEEHOLD A.ND FOK TEAKS. 
 
 1. Division of property, corporeal, land, etc 1-3 
 
 1. Ereehold of inheritance 4, 5 
 
 1. In fee-simple ; 2, limited fees G-18 
 
 2. 2. Freehold not inheritance. 1. Conventional ; 2, by law 11-33 
 
 3. 3. Estates less than a freehold 34-41 
 
 1. For years; 2, at will; 3, at sufferance 42-44 
 
 4. ■ 4. Landlord and tenant, rent, fixtures, etc 45-62 
 
 CHAPTEE III. 
 
 ESTATES UPON CONDITION. 
 
 1. 1. Estates upon condition, expressed and implied 1-7 
 
 1. Mortgages, in general, and what constitutes 8-12 
 
 1. The rights of mortgagor ; 2, mortgagee 13-16 
 
 3. Proceedings to redeem and foreclose 17-22 
 
 2. 2. Trust estates, in general 23-26 
 
 1. Express and implied 27-32 
 
 2. Eesulting trusts 33 34 
 
 CHAPTEE IV. 
 
 ESTATES AS TO POSSESSION AND TENANTS. 
 
 1. Estates. 1. In actual possession 1 
 
 2. In expectanc)', remainder, reversion 2-19 
 
 2. Estates as to tenants. 1. Inseveralty; 2, joint tenancy; 3, in common. 20-27 
 
 3. Partition and its incidents 28-81 
 
CONTENTS. xxi 
 CHAPTEK V. 
 
 TITLE BY OPEEATION OF LAW. 
 
 1. I. Title defined, and how constituted by operation of law '§ 1-4 
 
 1. By descent. Ancestral and non-ancestral estates 5-26 
 
 2. Interest of dower, curtesy, and bastards, saved 27-29 
 
 2. 2. Byescheats 30,31 
 
 3. By forfeiture ; 4, and judgments and execution 32-35 
 
 5. By merger ; 36 
 
 CHAPTER VI. 
 
 TITLE BY THE ACTS OF THE PARTIES. 
 
 1. Title acquired by acts of the parties 1 
 
 1. Title by deed. 
 
 1. Who may convey or acquire 2-10 
 
 2. Requisites of a deed 11-13 
 
 (1) In writing (J 14) ; (2) attested by witnesses 14-15 
 
 (3) Acknowledged (J 16, 17) ; (4) delivered 16-20 
 
 (5) Kecorded 21,22 
 
 2. 3. The investigation'of the title 23,24 
 
 8. 4. Usual form and common law requisites 25-36 
 
 4. II. Title by devise. Kequisites of a will 37-41 
 
 Eules and statutes as to devises 42-49 
 
 6. III. Title by matter of record and presumption 50-54 
 
 CHAPTER VII. 
 
 PERSONAL PKOPERTY. 
 
 1. Personal property generally. 1. Movable and immovable 1-9 
 
 2. In possession and in action 10 
 
 3. Absolute or qualified 11 
 
 4. As to the number of owners 12 
 
 2. Title to personal property, and 1, by occupancy 13, 14 
 
 2. By invention and copyright. Patent 15 
 
 3. Bygift, etc. ; 4, by contract 16-19 
 
 5. By bankruptcy ; 6, by will and administration ; 7, by forfeiture. 20-22 
 8. By custom; 9, by marriage ; 10, by judgment 23-28 
 
 CHAPTER VIII. 
 
 TITLE BY SUCCESSION. 
 
 1. I. By legacy. Wills, bow made and altered 1-11 
 
 2. II. By administration. General principles and proceedings 12-20 
 
 3. Ill, Distribution and succession 21,22 
 
 1. Next of kin and widow 23-25 
 
 2. How modified by will 26-28 
 
xxii CONTENTS. 
 
 CHAPTEK IX. 
 
 CONTKA.CTS IN GENERAL. 
 
 1. Its nature, requisites, and classification I 1-12 
 
 2. The consideration - 13-16 
 
 3. The necessary parties li-— 
 
 4. When void from being — 1, immoral; 2, impolitic ; 3, Illegal 23-27 
 
 5. Performance, and means and manner of enforcing it 28-42 
 
 CHAPTER X. 
 
 GIFT, SALE, AND LABOK. 
 
 1. Title by certain contracts. I. Gift or donation 1-4 
 
 2. II. Sale and exchange in general 5-9 
 
 1. As to fraud and deceit 10, 11 
 
 2. As to warranty, express or implied 12-lG 
 
 3. Stoppage in transitu 17-21 
 
 3. III. Contract for labor, and its performance 22-29 
 
 CHAPTER XI. 
 
 BAILMENT. 
 
 1. Bailment. 1. Diligence; 2, negligence 1-10 
 
 2. I. Bailment — beneficial to the bailor. 
 
 1. A deposit; 2, a mandate 11-22 
 
 3. II. Bailment — beneficial to the bailee , 28-2G 
 
 4. III. Bailment — beneficial to both parties. 
 
 1. Pledges and pawns 27, 28 
 
 2. Hiring and letting to hire 29 
 
 1. Locatio rei ; 2, locaiio operis faeiendi 30-36 
 
 5. 3. 1. Warehousemen; 2, innkeepers ; 3, common carriers 37-44 
 
 CHAPTEPv XII. 
 
 NEGOTIABLE PAPER AND MONEY CONTRACTS. 
 
 1. I. Promissory notes l-li 
 
 2. II. Bill of exchange 15-22 
 
 3. III. Money contracts. 1. Annuities 23-26 
 
 2. Assignments 27-31 
 
 3. Guaranties 32-36 
 
 4. Insurance. 1. Fire; 2, marine; 3, life 37-48 
 
 4. IV. Mortgages of personal property or chattels 49-52 
 
 5. V. Interest and rules governing it _ 5g_55 
 
CONTENTS. xxiii 
 CHAPTEK XIII. 
 
 KELATIVE CIVIL EIGHTS. 
 
 1. I. Agencies and powers. General principles I l-ST 
 
 1. Principal and agent 4-14 
 
 2. Principal and surety 15-17 
 
 2. Partnership. Its nature and creation ; 18-26 
 
 1. Eights and duties of partners 27-33 
 
 2. Dissolution of partnership 34-38 
 
 3. Legal remedies in cases of partnership '. 39-45 
 
 CHAPTER XIV. 
 
 DOMESTIC RELATIONS. 
 
 1. I. Husband and wife 1^2 
 
 1. Marriage, how contracted 3-7 
 
 2. Its legal effect and consequence 8-20 
 
 3. Marriage relation, how varied and annulled 21-27 
 
 2. II. Parent and child. 1. Their rights and duties 28-36 
 
 2. Illegitimate children 37,38 
 
 3. Children by adoption 39,40 
 
 3. III. Guardian and ward. 
 
 1. Guardianship of infants , 41-43 
 
 1. Guardianship by nature 44,45 
 
 2. Guardianship by statute 46-48 
 
 3. General duties of guardians 49-52 
 
 4. 2. Of persons insane or incapable 53 
 
 3. Of foreign minors, and duties of the court 54, 55 
 
 5. IV. Master and servant 56 
 
 1. Menial servants ; 2, laborers ; 3, apprentices 59-62 
 
 CHAPTER XV. 
 
 CORPORATIONS. 
 
 1. I. General proposition and division 1-5 
 
 1. How created 6,7 
 
 2. Their rights, capacities, and incapacities 8-12 
 
 3. Organization and transaction of business 13, 14 
 
 2. II. Visitation of corporation 15 
 
 3. III. The dissolution of a corporation 16,17 
 
 4. 1. An association of persons may be a quasi corporation 18 
 
 2. Acts and deeds of corporation must be evidenced by record 19 
 
xxiv CONTENTS. 
 
 BOOK III. 
 
 ANALYTICAL TABLE. 
 
 Private Wrongs and Civil Eemedies. Kefer to : 
 I. Injuries. 
 
 1. To absolute rights. 
 
 1. To the person ; 2, to property. 
 
 2. To relative rights. 
 
 1. To the civil; 2, to the domestic relation. 
 II. Eedress of injuries. 
 
 1. Without the aid of courts. 
 
 1. By the act of the party injured. 
 
 1. Self-defense; 2, recaption. 
 
 2. By the acts of both parties. 
 
 1. Accord and satisfaction ; 2, arbitration. 
 S. By operation of the law. 
 
 1. Eemitter ; 2, retainer ; 3, lien. 
 
 2. With the aid of the courts. 
 
 1. As to injuries by individuals. 
 
 1. By torts; 2, by violation of contracts. 
 
 2. As to injuries arising from the government. 
 
 1. Duties of officers. 
 
 1. Executive and ministerial ; 2, judicial. 
 
 2. Kedress of such injuries. 
 
 1. Quo warranto; 2, mandamus. 
 
 3. Prohibition and procedendo Chap. I. 
 
 III. The means by which redress may be procured. 
 
 1. Courts — as to which may be considered : 
 
 1. Their jurisdiction ; 2, their proceedings Chap. 11 
 
 2. Actions — as to which consider : 
 
 1. Their forms; 2, limitations; 3, parties; 4, joindure Chap. III. 
 
 3. Practice and procedure. 
 
 1. Process; 2, service; 3, arrest and bail ; 4, provisional 
 
 remedies Chap. IV. 
 
 4. Pleadings. 1. Object and rules of pleading. 
 
 2. The several parts of pleading. 
 
 1. Declaration or complaint. 
 
 2. Plea or answer; 8, demurrer Chap. V. 
 
 5. Evidence. 1. Pules of evidence. 
 
 2. Instruments of evidence. 
 
 3. What must be proved and what not Chap. VI. 
 
 6. Trial, verdict, and judgment. 
 
 1. Trial by the court, referee, or jury. 
 
 2. Verdict, demurrer to evidence, bills of exceptions. 
 
 3. New trial or arrest of judgment. 
 
 4. Judgment and its incidents Chap. VII. 
 
 7. Proceedings in error and appeal " VIII. 
 
 8. Execution and its incidents..., ii jx. 
 
 0. Proceedings in equity <i x_ 
 
CONTENTS. XXV 
 
 CHAPTER I. 
 
 CIVIL INJURIES AND THMR KEDKKSS. 
 
 1. I. The nature and character of civil injuries Z 1-6 
 
 2. II. Injuries. 
 
 1. Direct violence tcT person or property. 
 
 2. Indirect or consequential injuries 7 
 
 3. III. Means of redress. By acts of the parties or action at law 8,9 
 
 1. By acts of the party injured : 1, self-defense ; 2, recaption or 
 
 reprisal; 3, abatement 8 9 
 
 2. By joint acts of both parties : 1, accord and satisfaction ; 
 
 2, arbitration 13-17 
 
 3. By operations of law : 1, retainer; 2, remitter; 3, liens 18-21 
 
 4. IV. Eedress by aid of courts. 
 
 1. Of injuries by individuals : 
 
 1. By torts; 2. By violation of contracts 22-24 
 
 2. Of injuries from the government: 
 
 1. Rights and duties of oflScers. 1. Executive or minis- 
 
 terial ; 2, judicial 26-30 
 
 2. Redress. 1. By quo warranto ; 2, mandamus ; 3, pro- 
 
 hibition and procedendo 31-37 
 
 CHAPTER II. 
 
 COURTS AND THEIR JTTEISDICTION. 
 
 1. Courts. I. With reference to classification 1-7 
 
 II. "With reference to their jurisdiction 8-11 
 
 III. With reference to their mode of proceedings 12-16 
 
 2. Conflict of jurisdiction — State and Union 17-26 
 
 3. Organization and routine of business 27-31 
 
 1. Officers of courts of record 32 
 
 2. Authority to preserve order and punish contempts 33-38 
 
 4. Essential to justice: 1. Party must have a hearing ; 2, the court must 
 
 be disinterested 39-42 
 
 5. The judgment of the court — ^how formed 43,44 
 
 CHAPTER III. 
 
 ACTIONS. 
 
 1. Actions in general and their various forms 1-10 
 
 2. 2. Under the cod^ 11-13 
 
 3. 3. Special action. Partition, dower, etc 14-28 
 
 4. Limitation of action 29-36 
 
 5. Parties to, and joinder of actions 37-51 
 
xxvi CONTENTS. 
 
 CHAPTEE IV. 
 
 PROCEDURE AND PRACTICE. 
 
 1. In general — choice of remedies under the code and at comnjon law ? 1-13 
 
 2. Process and service 11-21 
 
 3. Arrest and bail ; and provisional remedies under the code 22-42 
 
 CHAPTEE V. 
 
 PLEADINGS. 
 
 1. Pleading in general — nature and order of 1-6 
 
 2. Eules. 1. What must he stated : 1. Thegist of the action ; 2, matters 
 
 of inducement ; 3, of aggravation 7-12 
 
 3. 2. What need not be stated: 1. What the court will notice 
 
 ex officio ; 2, what is necessarily implied ; 3, what is 
 presumed 13-19 
 
 4. 3. No greater particularity than the case will reasonably 
 
 admit 20 
 
 5. 11. Defense. 1. Demurrer and its object 21-27 
 
 2. Pleas (or answer) in abatement or bar 28-32 
 
 3. Traverse, and confession and avoidance 33-43 
 
 4. New assignments 44,45 
 
 6. Certain special pleas. 1. Statute of limitation; 2, fraud; 3, release; 
 
 4, puis darrein continuance 46-52 
 
 7. The issue (^ 53). 8. Pleadings under the code 54-67 
 
 CHAPTEE VI. 
 
 EVIDENCE. 
 
 1. I. The rules. 1. Under oath; 2, disinterested; 3, the best; 4, 
 
 cross-examined 1-11 
 
 2. Exception — hearsay, etc 12-18 
 
 2. II. Instruments of evidence. Witnesses, documents, etc 19-22 
 
 1. Competency and examination of witnesses 23-29 
 
 2. Documents. (1) public; (2) record judicial; (3) 
 
 private S0_40 
 
 8. HI. Class of evidence. 1. Direct and positive; 2, presumptive; 
 
 3, circumstantial 41-46 
 
 4. IV. Application of the evidence. 1. Parties must produce ; 2, court 
 
 determine the admission; 3, jury decide 47-59 
 
 5. The substance of the issue only need be proved GO-62 
 
 6. Evidence as changed by the code 63-69 
 
CONTENTS. xxvii 
 
 CHAPTER VII. 
 
 TRIAL, VEKBIOT, AND JTTIiaMENT. 
 
 1. I. Trial. 1. Before court ; 2, the fiiots by referee or jury ^-25 
 
 2- 2. As to proceedings and continuance 26-81 
 
 3. II. Verdict. Demurrer to evidence, bill of exception 32-40 
 
 4- 2. New triiil and its incidents 41-45 
 
 5 3. Arrest of judgments 46-49 
 
 6- 4. SudLgvciRTitnon obstante veredicto 50 
 
 7. 5. Eepleader 51 
 
 8. III. Judgment and its incidents 52-G4 
 
 CHAPTER VIII. 
 
 EEEOB AND APPEAL. 
 
 1. Proceedings to correct tbe judgment. 
 
 1. Motion; 2, appeal; 3, error .'. 1-6 
 
 2. 2. Proceedings in error 7-12 
 
 3. Proceedings in error and appeal under the code 14, 15 
 
 1. Petitions in error ; 2, to review, vacate, or modify judgment.... 16-23 
 
 4. Appeals 24 
 
 CHAPTER IX. 
 
 EXKCITTION AND ITS INCIDENTS. 
 
 1. I. Executions — their natures and various kinds 1-6 
 
 2. 1. Priorities, liens, claims, etc 7-10 
 
 3. 2. Levy on land and sale thereof. 11,12 
 
 4. II. Proceedings in aid of execution 13-18 
 
 5. Judgment becoming dormant, abated by death, etc., and revivor 20-30 
 
 CHAPTER X. 
 
 EQUITY. 
 
 1. I. Its nature and general principles 1-10 
 
 2. 1. It maybe: 1. Assistant; 2, concurrent; 3, exclusive of 
 
 the common law remedies 11-15 
 
 3. II. Subject-matter of its jurisdiction. 
 
 1. Accident and mistalte 16-18 
 
 2. Account 19 
 
 3. Fraud— injunction 19-29 
 
 4. Infants and persons not «z(i jmW.s 30,31 
 
 5. Speciiio performance. 6. Trusts — express or implied 32-35 
 
 4. III. Proceedings in equity. Pleading, etc 36-46 
 
 1. Principles upon which equity relieves 47-49 
 
 2. Rehearing 50 
 
 5. Equity under the code 51-58 
 
xxviii CONTENTS. 
 
 BOOK lY. 
 
 ANALYTICAL TABLE. 
 
 Crimes, Misdemeanors, and tlieir Punishments. 
 
 I. Crimes, and persons who may commit them. 
 
 1. Principals — in the first and second degree. 
 
 2. Accessories — before and after the fact Chap. I 
 
 II. Crimes and offenses, and their classification. 
 
 1. Against the nation and State. 
 
 2. Against the public. 
 
 1. Against public justice. 
 
 2. Against the public peace. 
 
 3. Against public trade. 
 
 4. Against religion. 
 
 5. Against morals. 
 
 3. Against personsiand property. 
 
 1. Homicide, assault and battery, etc. 
 
 2. Burglary, larceny, etc Chap. II. 
 
 III. Courts and their jurisdiction in criminal matters. 
 
 1. Courts of general jurisdiction. 
 
 2. Courts of special jurisdiction, etc Chap. III. 
 
 I. Criminal procedure and practice. 
 
 1. The prosecution. 
 
 2. Arrest, examination, bail, etc. 
 
 3. Habeas corpus. 
 
 4. Eecognizance, etc Chap. IV. 
 
 II. Criminal pleading. 
 
 1. Indictments, etc. 
 
 2. Pleas, demurrers, etc. 
 
 1. Special pleas. 
 
 2. General issue Chap. V. 
 
 III. Criminal evidence. 
 
 1. Evidence in general. 
 
 2. Instrument of evidence — witnesses, etc. 
 
 3. Proof — quality and quantity of evidence Chap. VI. 
 
 IV. Trial, judgment, and execution " VII. 
 
 V. Error, reversal, and pardon •• VIII. 
 
 CHAPTER I. 
 
 . CRIMES, AND PBBSOJIS WHO MAT COMMIT THBM. 
 
 I. Crimes and public ofienses in general 212 
 
 1. No common law crimes in Ohio 3 4 
 
 2. Crimes and their classification 5 g 
 
 8. Punishment and its theory , 7-19 
 
 II. Persons who may commit crimes 20 
 
 1. Excuse. 1. Non compos mentis ; 2, infants; 3, feme coverts... 21-26 
 
 2. 1. Misadventure; 2, duress per minas, etc, 27-29 
 
CONTENTS. xxix 
 
 3. Principals and accessories. 
 
 1. Principals in first and second degree J 30-32 
 
 2. Accessories before and after the fact 33-35 
 
 -III. Sources of the criminal law 36 
 
 CHAPTER II. 
 
 CRIMES AND THEIR CLASSIFICATION. 
 
 Crimes and misdemeanors in general _ 1 
 
 I. Crimes against the nation and State. 
 
 1. Treason against the U. S 2-5 
 
 1. Levying war, etc 6-7 
 
 2. Aid, etc., to the enemy 8-9 
 
 2. Treason against the State 10-14 
 
 1. Offenses against the government less than treason 15-18 
 
 2. Under the laws of Congress in general 19-24 
 
 II. Crimes and offenses against the public 25 
 
 1. Against public justice 26-36 
 
 2. Against public peace 37-47 
 
 3. Against public trade 48-53 
 
 4. Against religion , 54 
 
 5. Against public morals 55-58 
 
 , III. Crimes against persons and property. 
 
 1. Against the person 59 
 
 1. Homicide; 2, mayhem 60-71 
 
 3. Assault and battery ; 4, against females 72-76 
 
 2. Against property. 
 
 1. Arson; 2, burglary ; 3, larceny ; 4, robbery 77-92 
 
 5. Forgery and counterfeiting ; 6, fraud and false pre- 
 tenses 93-95 
 
 7. Malicious destruction 96 
 
 CHAPTEE III. 
 
 COITBTS AND THEIR JURISDICTION. 
 
 1. Courts and their jurisdiction in general 1-3 
 
 2. I. Courts of U. S. 1. Senate 4-8 
 
 2. Supreme Court 9-11 
 
 3. Circuit and district courts 12-14 
 
 8. II. Criminal courts of the State ' 15 
 
 1. Supreme court 16-18 
 
 2. District court ; 8, common pleas 19-21 
 
 4. Probate court and inferior courts 22-25 
 
 4. III. Jurisdiction in particular cases 26-33 
 
 5. IV. Jurisdiction— how shown or assumed 34-38 
 
XXX CONTENTS. 
 
 CHAPTEK IV. 
 
 CRIMINAL PROCEDURE AND PRACTICE. 
 
 1. I. The prosecution i 1"° 
 
 2. II. Proceedings preventive of crime 9-12 
 
 3. III. 1.. Arrest 13-22 
 
 2. Examination; 3, bail, etc 23-34 
 
 4. IV. Habeas corpus 35-60 
 
 5. V. Grand jury and its proceedings 61-69 
 
 6. VI. Arraignment and preparation for trial 70-73 
 
 7. VII. Change of venue 74, 75 
 
 8. VIII. Petit jury and challenges, etc 76-85 
 
 CHAPTER V. 
 
 CRIMINAL PLEADING. 
 
 1. I. Criminal pleading in general 1,2 
 
 1. Indictments, etc., in general 3-9 
 
 2. 2. Its parts. 1. Caption, etc ~ 10,11 
 
 2. Statement of the offense, etc 12-20 
 
 3. II. Principles applicable to criminal proceedings 21-28 
 
 4: III. Joinder of prosecutions 29-32 
 
 5. IV. Limitations of prosecutions 33-34 
 
 6. V. Motions to quash, pleas in abatement, and demurrers 35-40 
 
 7. VI. Pleas in bar, and the general issue 41-51 
 
 CHAPTER VI. 
 
 CRIMINAL EVIDENCE. 
 
 1. Evidence in general 1 
 
 2. I. General principles of criminal evidence 2-16 
 
 3. II. Instruments of evidence. 1. Witnesses; 2, documents 17-29 
 
 Examination of witnesses 30-36 
 
 4. III. What must be proved 37-39 
 
 1. Quantity and quality of evidence 40-45 
 
 2. Circumstantial evidence and presumptions 46 47 
 
 CHAPTER VII. 
 
 T^IAL, JUDGMENT, AND EXECUTION. 
 
 I. Trial— preliminary steps, and jury sworn 1_4 
 
 I. Order of the trial g_y 
 
 1. Statement of the case to the jury g 
 
 2. Evidence of the State 9-15 
 
 3. Evidence of the defense 16-19 
 
 4. Impeachment of witnesses 20-21 
 
 5. Character of the accused 22 23 
 
CONTENTS. xxxi 
 
 II. Progress of the trial after the evidence. 
 
 1. Argument of the case §24-27 
 
 2. Charge of the court 28 
 
 3. The jury and their verdict 29-32 
 
 III. Motions after verdict. 1. New trial 33-39 
 
 2. Arrest of judgment 40-42 
 
 3. Bill of exceptions 43-45 
 
 II. Judgment and incidents 46-50 
 
 III. Execution and incidents 51-54 
 
 CHAPTER VIII. 
 
 EKROK, KEVEKSAL, AND PAKDON. 
 
 I. General principles of error and appeal 1-4 
 
 I. Principles and practice in error. 
 
 1. In the English courts 5-8 
 
 2. Under the criminal code 9-11 
 
 3. Consequences of reversal on error 12, 13 
 
 4. In U. S. courts (§ 14), certiorari in common pleas 14, 15 
 
 II. Errors available in criminal cases. 
 
 1. What is error and mode of proceeding 16-23 
 
 2. Kules by which error is allowed and refused 24-35 
 
 3. Bills of exceptions and their importance , 36-38 
 
 4. What errors waived by pleading over 39 
 
 II. Reversal of judgment and its incidents 40-42 
 
 III. Pardon and its incidents 43-51 
 
 Conclusion 52 
 
ANALYSIS OF AMERICAN LAW. 
 
 IKTEODUCTIOK 
 
 CHAPTER I. 
 
 THE STUDY OP THE LAW. 
 
 § 1. The law is the presiding element of our social existence. In 
 this country, it surrounds every person, and pervades every place ; it 
 establishes the rights and obligation of every person, and shields and 
 protects every existence ; at the same time that it surrounds us with its 
 protection and influence, it permits no one to be elevated above its con- 
 trol, and suffers none to be depressed beneath its guardian care. During 
 every period of our existence, before birth and after death, as well as 
 from our cradle to the grave, we are the constant objects of its protection 
 and care. While, on the one hand, the Bepublio is organized and con- 
 trolled by its mandates, on the other, there is no position or subject 
 beneath the object of its attention and regard. 
 
 § 2. It is incumbent upon every person, therefore, to become ac- 
 quainted, in some measure, with the law, which constitutes so much of 
 what concerns his social existence, and, to some extent, to understand 
 those rights and obligations that every one sustains, lest he incur, 
 without knowing it, the responsibility and censure of the society in 
 which he lives ; for nowhere is a person excused from his responsi- 
 bility on the score of ignorance of the law. Ignorantia leges non ex- 
 cusat, is an old maxim, more truly now in force than ever. 
 
 § 3. Independent of our interest, and the obligation that every per- 
 son thus- sustains in relation to the law, and his duty to become ac- 
 quainted with it, there are three classes of persons to whom the subject 
 of the study of the law is particularly addressed. First, those who are 
 disposed and have leisure to pursue it as a matter of science and gen- 
 eral information. The study of some science is necessary for the pur- 
 pose of disciplining the mind and becoming acquainted with the proper- 
 method of analysis ; and to enable us to observe and appreciate the 
 necessary and natural analogies, as well as for ihe general enlargement 
 of the intellectual powers. In all these respects the study of the law 
 
 (21) 
 
22 INTRODUCTION: [chap. i. 
 
 equals, if it do not surpass, any other science ; in addition to its being 
 a subject so intimately connected with our every-day interest and duty. 
 
 § 4. Second, there is that large class of citizens in this country (and 
 there are none who may not be ranked among them), who may on any 
 day be called upon to consult and advise in relation to the interest and 
 welfare of the country ; which, almost in all cases, involve questions of 
 law, either public or private, constitutional or municipal, of greater or 
 less importance. In this country, where the government truly rests 
 upon the shoulders of the people, and all are responsible for its action 
 and welfare, there is ahigher obligation to become acquainted with the 
 law, in proportion to the capacity and position accorded to any one 
 by his fellow-citizens. The words of Cicero to the Roman patricians 
 become, therefore, appropriate to all our citizens. " It is necessary," 
 says he, " for a senator to be thoroughly acquainted with the constitu- 
 tion ; a knowledge of the most extensive nature ; a matter of science, of 
 diligence, of reflection ; without which no senator can possibly be fit for 
 his office." And the reproach of another Roman to a patrician becomes 
 equally applicable: "that it was a shame for'such a person to be igno- 
 rant of that law in which he was so peculiarly concerned." 
 
 § 5. And there is the third class, the professional student ; whose 
 interest, duty, and profession require that he should become more thor- 
 oughly acquainted with the whole subject of the law ; and who should 
 first become well prepared in general science and history ; and then 
 have stored in his mind a well-digested analysis and map of the law, 
 before grappling with a more general and thorough course of professional 
 study. 
 
 §6. With regard to the study of the law, two questions are fre- 
 quently asked, — who may or should study the law ? and how, and in 
 what manner, should that study be pursued and conducted ? As to the 
 first branch of the inquiry, when made not with a view to a professional 
 pursuit, but for the purpose of obtaining that degree of intelligence and 
 general information which will enable a person to be ranked among 
 those who are considered as intelligent and useful citizens in their com- 
 munity, the answer undoubtedly should be, — all who have leisure and 
 means to pursue it. But if the inquiry be with a view to a professional 
 vocation, the answer demands a very different consideration. ' 
 
 § 7. In this country, where every citizen should consider himself re- 
 sponsible for the welfare and happiness of the country, and for its char- 
 acter, and the due execution of the laws, — for here all depend upon the 
 general will, where the due administration of the government rests, — 
 none are excused from its study, and none exempt from its cares. 
 Every one of any intelligence is frequently called upon to officiate in 
 some legal capacity, — as juror, or arbitrator, or as magistrate, — or to 
 advise in some public or private affair. He who does not, as far as it 
 
CHAP. I.] TEE STUDY OF THE LAW. 23 
 
 may lie in his power, prepare and qualify himself for the discharge of 
 these duties, and respond to these calls, shrinks from the proper dis- 
 charge of his duties and from the demands of patriotism. 
 
 § 8. The course to be pursued at the commencement of the study, 
 whether for the purpose of preparing one's self for the faithful discharge 
 of these various duties which our liberal institutions cast upon the 
 shoulders of every citizen, or as a preparation for the more arduous 
 duties of the profession, is very much alike in either case. But he who 
 should undertake the study with a view to engage in the profession of 
 the law as a vocation for life, should do it as an entirely different matter. 
 Every person is endowed by his Creator with some capacity or talent 
 that may be applied to some useful purpose. But there are very few,' 
 indeed, who can succeed in any particular pursuit that may be selected 
 for them at hap-hazard without regard to the peculiar capacity and 
 genius for it. There are very few Crichtons who could succeed in 
 almost anything. Unhappy, indeed, is that person, who, by his own 
 choice, or by the solicitation of partial and indiscreet friends, makes a 
 selection of a profession for which he is not by nature adapted, and 
 which is out of the reach of his genius. 
 
 § 9. The practice of the law demands many and various gifts and 
 natural talents,— judgment, prudence, eloquence, and manners, — which 
 are given to but few, of the many who try the diflScult and arduous 
 pursuits of the law. The profession of late has been so crowded 
 with candidates for its honors, and been put so much in compe- 
 tition, that it is frequently a question who shall be starved out for the 
 purpose of giving room to a more successful and a better-adapted can- 
 didate. Therefore, no discreet parent, guardian, or friend will advise 
 a youth to engage in the profession of the law without due regard for 
 his peculiar capacity for the study and practice. How often have'we 
 witnessed the results of an unhappy choice and failure of this kind — 
 cases that, after years of endeavors, eventuate in utter failures; when, 
 if the same amount of talents had been applied to some vocation, to 
 which their capacities had been better adapted, they might have been 
 crowned with success and honor. 
 
 §10. These failures are sometimes on account of the want of that 
 application, industry, and perseverance which are necessary in all pur- 
 suits, but especially in this. Sometimes the failure is on account 
 of the want of that judgment, discretion, and prudence, which will 
 inspire confidence in clients and secure their patronage. At other 
 times, it is to be attributed to the want of those natural gifts and 
 endowments, without which failures are inevitable. Among these 
 may be enumerated that retentive memory which will hold at com- 
 mand that science which, of all others, is the most voluminous and 
 varied ; that capacity for a happy expression of ideas and thoughts 
 
24 INTRODUCTION. [chap. r. 
 
 which will be interesting to others, and enable him to compete with 
 the more favored votaries of the law. 
 
 These qualities are requisite for a successful lawyer ; and yet many 
 have succeeded when deficient in some of them. But, when this has 
 been the case, there must have been more than ordinary development of 
 some other qualities. Instances have been known where the lawyer stut- 
 tered or stammered, yet, by an extraordinarj' amount of intellect and 
 force of character, overcame these natural impediments, and became an 
 interesting and successful advocate. 
 
 §11. Some extraordinary instances of this kind have been related, 
 and none more so than that of Mr. Bell, an eminent lawyer of the 
 English Court of Chancery. That gentleman was distinguished for 
 the extent of his information and the soundness of his judgment 
 Lord Chancellor Eldon, before whom he practiced, was noted for his 
 delays on account of the doubts and difficulties he entertained in many 
 of the numerous cases tried before him. It is said the Chancellor 
 entertained so high an opinion of the intelligence and judgment of 
 Mr. Bell, that he was always in a state of most painful perplexity 
 of mind when he knew that his opinion on any important point was in 
 Opposition to that of this distinguished counselor. And yet it is said 
 that, as a mere speaker, Mr. Bell had no pretensions to the name. He 
 had a harsh, husky voice, the unpleasantness of which was, to an 
 English ear, greatly aggravated by his strong Scottish accent. He was 
 not a fluent speaker ; he spoke with so thick an utterance that it was 
 often difficult to understand him. His style, like his elocution, was 
 deficient in elegance. His manner was not remarkable for animation, 
 but there was an earnestness about him which showed that his clients' 
 interests lay near his heart. It is also said of him- that he read badly, 
 wrote a wretched hand, ^nd was a very awkward walker. When Lord 
 Eldon was asked by George IV. who was the most eminent lawyer at 
 the English bar, he replied that the best lawyer in his court was a man 
 who could neither read, write, nor walk. This may be a finer antithe- 
 sis than a just description of the man. Great, indeed, must have been 
 his powers and merits in some respects, to have enabled him to over- 
 come such impediments and disadvantages. Yet such instances are 
 not rare in this countrj^, when accompanied with an extraordinary 
 degree of industry, perseverance, and good sense. But without these 
 persona] qualities, such disadvantages must lead to inevitable failures. 
 
 § 12. In this country, where there are so many avenues open to a 
 professional pursuit, with no aristocratic or conventional restraint upon 
 any, an unhappy choice of vocation is less excusable than in countries 
 where such restraints are numerous ; and difficulties arising .on account 
 of a more dense population, and less freedom in the various pursuits 
 of life. The friends of the youthful aspirant to some useful and honor- 
 
CHAP. 1.] THE STUDY OF THE LAW. 25 
 
 able pursuit, cannot be too cautious in their advice as to a choice of 
 profession or vocation, where there are so many in this country open 
 and adapted to capacities and talents of every kind. 
 
 § 13. In England the offices of attorney and counselor-at-law are kept 
 separate and distinct, and the practice is so divided up that the division 
 of the labor of the profession affords great facility of adaptation of the 
 grades of talents and capacities to the different branches of the profes- 
 sion. And in this country, although the practice of attorney and coun- 
 selor is generally united in the same person and office, yet we find 
 the profession has such variety of callings and pursuits and so well 
 divided up, as to afford a variety of adaptation to the different talents 
 and attainments of its professors. There is the instance of a person 
 whose address, manners, and capacities would not enable him to aspire 
 to the higher ranks of the profession, who of choice would confine him- 
 self to office business, such as conveyancing and advising as to the titles 
 to property — attending to collections and financial affairs. There is 
 also that of a lawyer whose forte is in the criminal trial, where his 
 shrewdness and great attainments in the criminal law will give him a 
 higher standing than anywhere else. There is also that of a lawyer 
 who is not distinguished for very profound judgment or learning, but 
 who, by his wit, sarcasm, and fancy, accompanied by a pleasing address 
 and a talent for off-hand public speaking, will command a patronage in 
 cases adapted to his peculiar abilities, such as cases of slander and torts, 
 where fancy or passion are more to be operated upon than the intellect 
 or the judgment. And there are still the highest walks of the profes- 
 sion, where learning and genius are to be developed by such men as a 
 "Webster, a Wirt, or a Binney; where the profoundest attainments, 
 united with commanding intellect and loftiest eloquence, are called into 
 requisition in cases involving the highest interests and demanding the 
 greatest exertion. 
 
 § 1 4. To those who are about to enter upon the study of the law as 
 a profession to be pursued in practice, a more thorough course of disci- 
 pline, and a laborious pur.suit of knowledge, are to be recommended as 
 necessary. Let no one presume to think that his genius, however 
 transcendent, will enable him to assume an elevated rank in his pro- 
 fession, without diligence, perseverance, and hard labor in mastering 
 that amount of human knowledge which is indispensable to its attain- 
 ment. In addition to mastering the bulk of the law, he must either, 
 as a preliminary or collateral to it, acquire a thorough knowledge of 
 every science and every object of human interest. It has been well said 
 that " the sparks of every science in the world are raked up in the ashes 
 of the law." 
 
 § 15. In general, persons applying to be received as attorneys, have 
 had the benefit of a liberal education ; but although this is a great ad- 
 
26 INTRODUCTION. [chap. i. 
 
 vantage, it is not indispensably necessary, for many attorneys in this 
 country have become highly distinguished who have been self-made 
 men. In modern times a knowledge of the Latin and French languages, 
 however imperfect, is sufficient, and the Greek may, in a great measure, 
 be dispensed with.' This is stating the case in its most liberal terms, by 
 a person of great attainments and high rank in his profession. While 
 it is true that self-made men have in many eases attained a very emi- 
 nent position in the profession, yet it was by a course of the most dili- 
 gent and persevering self-discipline that they at length overcame the 
 difficulties incident to the want of an early and thorough education, — 
 while their course was always attended with regret, that it had not been 
 their lot to enjoy it. Such an education should always characterize one 
 who aspires to the learned professions : if he is not possessed of it, the 
 fact is a reproach to him, and he knows it and feels it, however much 
 he may be buoyed up by a conscious pride that his energy, talents, and 
 perseverance have enabled him to surmount all his difficulties. For- 
 merly there was a just excuse for the want of a proper education at the 
 commencement of law studies; but now, when our literary institutions 
 have so multiplied, and been so liberally sustained at public expense, 
 and there being so many ways to aid the industrious and deserving in 
 acquiring such an education, there is hardly an excuse for not attaining 
 it. But there is too frequently a disposition manifested by those who 
 oven have such opportunities for liberal education, to slight it, and fre- 
 quently before their college course terminates, commence upon their 
 legal studies, and thereby rob their classical course of that time which 
 should be devoted to its perfection, and this is at least robbing the one 
 to pay the other. It cannot be too urgently impressed upon the person 
 who contemplates becoming a student of law, to obtain first a thorough 
 classical education. If the contrary course be pointed out to him, let 
 him consider how many persons have attained an eminence in their 
 l)rofession, because they were thorough scholars ; and consider, too, how 
 frequently those who have been successful without it, have had occasion 
 to regret (and be mortified on the account) that they had not enjoyed 
 early advantages. 
 
 § 16. Ko better instructions can be given upon this part of our sub- 
 ject than the following extract from a letter of Lord Brougham to 
 Zachary Macaulay, Esq.,'' upon the education of his son, afterward 
 Lord Macaulay, the renowned historian. " You, of course, destine your 
 son for the bar, and, assuming this, I would fain impress upon you 
 (and through you upon him) a truth or two, which experience has made 
 me aware of, and which I would have given a great deal to have been 
 acquainted with earlier in life from the experience of others. 
 
 ' 3 Bouv. Institutes, 4. 
 
 ' Dated March 10th, 1823, in 5 vol. Macaulay's Hist. Eng. 
 
CHAP. I.] THE STUDY OF THE LAW. 27 
 
 § It. " First, that the foundation of all excellence is to be laid in early 
 application to general knowledge is clear, and equally so it is, that pro- 
 fessional eminence can only be attained by entering betimes into the 
 lowest drudgery, the most repulsive labors of the profession. Even an 
 attorney's office I should not hold too severe a task, or too high a price 
 to pay, for the benedt it must surely lead to ; but, at all events, the 
 life of a special pleader, I am quite convinced, is the thing before being 
 called to the bar. A young man whose mind has once been imbued with 
 general learning, and has acquired classical propensities, will never 
 sink into a mere drudge But what I wish to inculcate espe- 
 cially, with a view to the great talent for public speaking which your 
 son happily possesses, is that he should cultivsite that talent in the 
 only way in which it can reach the height of art, and I wish to turn 
 his attention to two points. I speak on this subject with the authority 
 both of experience and observation ; I have made it very much my 
 study ; . . . . have had some practical experience in it ; have prepared for 
 much more than I ever tried, by a variety of laborious methods — reading, 
 writing, much translation, composing in foreign languages, etc. — and I 
 have lived in times when there were great orators among us ; therefore 
 I reckon my opinion worth listening to, and the rather, because I have 
 the utmost confidence in it myself, and should have saved a world of 
 trouble and much time had I started with a conviction of its truth. 
 
 §18. "1. The first point is this — the beginning of the art is to acquire 
 a habit of easy speaking ; and in whatever way this can be had. Now, 
 I differ from all other doctors of rhetoric in this. I say, let him first of 
 all learn to speak easily and fluently, as well and as sensibly as he can, 
 no doubt, but at any rate let him learn to speak. This is to eloquence, 
 or good public speaking, what the being able to talk in a child is to cor- 
 rect grammatical speech. It is the requisite foundation, and on it you 
 must build. Moreover, it can only be acquired young : therefore let it, 
 by all means and at any sacrifice, be gotten hold of forthwith. But in 
 acquiring it every sort of slovenly error will also be acquired. It must 
 be got by a habit of easy writing ; by a custom of talking much in com- 
 pany ; by speaking in debating societies, with little attention to rule. 
 .... I can even suppose that more attention is paid to the matter 
 in such discussions, than to the manner of saying it ; yet, still, to say it 
 easily, ad libitum, to be able to say what you choose, and what you 
 have to say, — this is the first requisite, to acquire which everything else 
 
 must be for the present sacrificed.' 
 
 - , _ . 
 
 1 A distinguished advocate and orator, Hon. S. S. Prentiss, has said : " Henry 
 Clay has many men in the United States who exceed him in information on 
 all subjects, but his superiority consists in the power and adroitness with 
 ■which he brings his information to bear. I would again press, before any other 
 acquisition, that of expressing forcibly and with ease any idea which the mind 
 
28 . INTRODUCTION. [chap.!. 
 
 § 19. " 2. The next step is the grand one: to convert this style of 
 easy speaking into chaste eloquence. And here there is but one rule. 
 I do earnestly entreat your son to set daily and nightly before him the 
 Greek models. First of all, he may look to the best modern speeches 
 (as he probably has already) : Burke's best compositions, as the 
 ' Thoughts on the Cause of the Present Discontent,' speech on ' The 
 American Conciliation,' and 'On the Nabob of Arcot's Debt,' Fox's 
 speech on the 'Westminster Scrutiny' (the first part of which he should 
 pore over until he has it by heart), ' On the Russian Armament,' and 
 ' On the War' (1803), with one or two of Wyndham's best, and a very 
 few, or rather none, of Sheridan's. But he must by no means stop 
 here. If be would be a great orator, he must go at once to the foun- 
 tain-head, and be familiar with every one of the great orations of Demos- 
 thenes. I take for granted that he knows those of Cicero by heart; 
 they are very beautiful, but not very useful, except perhaps the ' Milo, 
 pro Ligario,' and one or two more ; but the Greek must positively be 
 the model ; and merely reading it as boys do, to get the language, 
 won't do at all ; he must enter into the spirit of each speech, thoroughly 
 know the position of the parties, follow each turn of the argument, and 
 make the absolutely perfect and most chaste and severe compositions 
 familiar to his mind. His taste will improve every time he reads, and 
 repeats to himself (for he should have the fine passages by heart), and 
 he will learn how much may be done by the skillful use of a few words, 
 and a rigorous rejection of all superfluities. In this view, I hold a 
 familiar knowledge of Dante to be next to Demosthenes. It is in vain 
 to say that an imitation of these models won't do for our times. 
 
 § 20. " First, I do not counsel any imitation, but only an imbibing of 
 the same spirit. Secondly, I know from experience that nothing is half 
 so successful in these times (bad though they be) as what has been 
 formed on the Greek models. I use a very poor instance in giving my 
 own experience, but I do assure you, that both in courts of law and 
 Parliament, and even to mobs, I have never made so much play (to use 
 a very modern phrase) as when I was almost translating from the 
 Greek. I composed the peroration of my speech for the Queen, in the 
 Lords, after reading and repeating Demosthenes for three or four weeks, 
 and I composed it twenty times over at least, and it certainly succeeded 
 in a very extraordinary degree, and far above any merits of its own. 
 This leads me to remark that, though speaking, with writing before- 
 hand, is very well until the habit of easy speech is acquired, yefc after 
 that he can never write too much ; this is quite clear. It is laborious, no 
 doubt, and is more difiicult, beyond comparison, than speaking off-hand • 
 
 entertains. This faculty is attained with difficulty in after-life, but with ease in 
 youth at college, and nowhere so well as in the debating societies of such insti- 
 tutions." 1 Pren. Mem. 125. 
 
CHAP. I.] THE STUDY OF THE LAW. 29 
 
 but it is necessary to perfect oratory, and at any rate it is necessary in 
 order to acquire the habit of correct diction. But I go farther, and 
 say, even to the end of a man's life, that he must prepare, word for 
 word, most of his finer passages. Now, Would he be a great orator or 
 no ? In other words, would he have almost absolute power of doing 
 good to mankind in a free country or no ? So he wills this, he mijst 
 follow these rules." 
 
 § 21. This advice of Lord Brougham, though coming from such high 
 authority, is still subject to these remarks. First, observe the stress 
 that this great man puts upon a thorough course of preparation, and 
 how little upon genius or native talent. Although these are absolutely 
 necessary as the foundation of every professional eminence, yet labor, 
 industry, has ever been insisted upon by every great man, and enforced 
 by every great example, as well as being the sentence first pronounced 
 byhis Creator upon man. Without industry and perseverance there 
 is nothing great accomplished by man. In addition to what Lord 
 Brougham says by way of enforcing the necessity of a thorojigh course 
 of preparation and study for the profession, observe what he says as to 
 what is necessary for great examples and occasions, as the peroration 
 of his celebrated speech. A similar statement has been made of Mr. 
 Webster's peroration — ^the most splendid and gorgeous perhaps ever 
 delivered — the reply delivered in answer to Mr. Hayne in Congress, 
 January, 1830. No genius has produced a specimen of the kind with- 
 out preparation, study, and reflection. 
 
 § 22. Let it not be supposed from what is said by Lord B. in the above 
 advice, that the capacity to deliver a speech is all that is meant, without 
 reference to its intelligence and matter. It must be well digested, 
 filled with information, and well adapted to the subject. A windy dis- 
 course, without substance or intelligence, a mere garrulous talk, with- 
 out taste or skill or well-digested matter, will be sure to produce, in- 
 stead of the admiration sought for, a most decided contempt. Nothing 
 will so effectually lower a speaker in public estim'ation as an exhibition 
 of this latter kind ; nor will anything be so certain to elevate him as a 
 speech well digested, and adapted to the end in view, especially if it be 
 filled with intelligence, and distinguished for reason and sound sense. 
 
 § 23. One of the most splendid instances of genius in oratory was 
 that of Kossuth. Yet he was not exempt from the cost of all such pro- 
 duction — study and industry. When this great and natural orator was 
 in Columbus, Ohio, he was urged to make a speech upon an unexpected 
 occasion; he persistently declined, suggesting that he was not prepared, 
 and, putting his hand to his mouth, said, "Do you think I have my 
 speech in my teeth?" 
 
 § 24. And next observe the plodding industry Lord Brougham re- 
 commends in becoming acquainted with the business of the attorney 
 
30 INTRODUCTION. [chap. i. 
 
 and special pleader. The spirit of this advice is equally applicable to this 
 country, although our practice is much altered from that of England. 
 Here the student should make himself well acquainted with the routine 
 of practice, and the forms adopted in the clerk's office and the probate 
 court. The penalty of not attending to this suggestion will be, that 
 the practitioner will often be put into an awkward position, occasioned 
 by his ignorance and by his ridiculous and ill-devised law papers, forced 
 to be produced on unexpected occasions; and which will be often at- 
 tended with serious defeat and loss to his client, arising from his want 
 of skill and experience. By all means he should make himself master 
 of the subjects of Pleading and Evidence. 
 
 § 25. Again, the advice of distinguished lawyers, orators, and states- 
 men in relation to frequent practice and exercise in public speaking is 
 undoubtedly just and valuable ; but it is subject to this caution, — that 
 the student should be as careful as possible, lest, in the mere love of 
 saying something at any rate rather than of saying everything well, he 
 does not habitually run into a low and vulgar style. At all times the 
 student should labor to acquire a chaste and correct style, and, when- 
 ever the subject admits of it, that of elegance and ease. The law-books 
 generally produced by English lawyers have been careless in style and 
 method. Notable exceptions, however, exist, and some are deserving 
 the highest commendation in these respects.^ Although generally, in 
 their public writers and speakers, there is correctness and elegance of 
 style, yet we have the assertion of a traveler, that the style of the Eng- 
 lish barristers is embarrassed and inelegant, and their speeches too often 
 deformed by the perpetual recurrence of common colloquialisms ; " Oh, 
 yes !" " Very well !" and " You know 1" ad nauseam.^ Such vulgarity 
 and common phraseology are too common in every department of pub- 
 lic speaking, and the student should be jautioned to avoid them ; for, if 
 once indulged in, there is danger that the habit will become inveterate. 
 
 § 26. As a concluding remark in reference to the advice of Lord B., 
 it may be said that, although the student should frequently use and 
 rely upon his pen in the preparation of his speeches, yet he must be 
 very cautious not to rely too implicitly upon reciting verbatim in the 
 delivery, what he has committed to writing in his study. There is such 
 vast difference in the capacity of different individuals of memorizing 
 and detvering well a speech thus prepared, that it is dangerous for all 
 to rely upon it. There have been some d'.stinguished public speakers 
 who possessed the ability to recite and deliver well what had been pre- 
 pared in the closet; such were Lord Brougham and Mr. Webster, and the 
 
 1 Blackstone's Commentaries, Jones on Bailment, and Mitford's Equity Plead- 
 ings are really exceptions, as well as others that might be mentioned. 
 
 2 12 Harper's Mag., 222. 
 
•^HAp. I.] TSE STUDY OP TEE LAW. 31 
 
 late Mr. Everett in an eminent degree. But it is not all persons of re- 
 specable abilities and talents who could accomplish it, and the attempt 
 to deliver a written discourse as an extemporaneous effort would result, 
 with many, in a mortifying failure. Let those who attempt it be well 
 aware of what they can perform before they undertake it. To those 
 who cannot well accomplish this task, the advice is to prepare and 
 study well the subject, not as to the precise words and form, but as to 
 the subject matter and the ideas. Let them master the subject, and be 
 thoroughly imbued with its spirit, and then let their words take care of 
 themselves on the occasion. This is a far better course than to attempt 
 to deliver prepared matter as an extemporary discourse, and make a 
 mortifying failure. 
 
 § 27. Although a broad and extensive course of reading has been re- 
 commended, yet it is not advisable to attempt a greater amount of study 
 than the student is capable of fully mastering, and his constitution and 
 faculties can bear. If he is physically and mentally incapable of what 
 has been recommended to a reasonable degree, then he is advised to 
 abandon the hopes of attaining the higher ranks of the profession, and 
 confine himself to its humbler walks. The opinion of Abernethy' upon 
 this subject is well expressed, and is commended. 
 
 He said, "A young man should endeavor to strengthen his constitu- 
 tion and lay in a stock of health. Besides, too much reading never yet 
 made an able man. It is not so much the amount and extent of what 
 we read that serves us, as what we assimilate and make our own. It 
 is that, to use an expression borrowed from the profession, that ' consti- 
 tutes the chyle of the mind.' . . . It is far easier to read than to 
 think, to reflect, or to observe ; and some great readers, not having 
 leUrned to think, cram themselves with the ideas and words of others. 
 This they call study, but it is not so. In my own profession I have 
 observed that the greatest men were not the mere readers, but the men 
 who observed, who reflected, who fairly thought out an idea." 
 
 § 28. The practicing lawyer may at any time be called upon unexpect- 
 edly in a case which involves an intricate question of international or 
 constitutional law. This may require illustration from history or the 
 law of nations, as well as elucidation from the adjudicated cases ; or it 
 may be one which requires familiarity with physiology, or the diseases 
 of the intellect, and all that appertains to medical jurisprudence ; or it 
 may be one that relates to machinery, or a steam-engine, or a building. 
 These are cases which would call into requisition all the philosophy of 
 mechanism and chemistry, or all the arts and science appertaining to 
 mechanics and architecture. Thus we may proceed over the whole field 
 
 1 Eclectic Mag., 1863, vol. i. 73. 
 
32 JNTR OD UCTION. [chap. i. 
 
 of human knowledge, in addition to the preparatory course in litera- 
 ture, as well as the mastering of ordinary law-books. 
 
 This the student must accomplish if he expects to obtain a respectable 
 rank in his profession, or to be employed in cases of such a character. 
 This he must attain, if he expects to ascend into the ranks with a Web- 
 ster, a Binney, a Ewing, or a Stanbery. This he must do, or abandon 
 the profession, or content himself with its inferior walks ; — with the col- 
 lection of claims, or as an attorney attending the mere incipient busi- 
 ness of cases, or the drudgery of the profession. 
 
 § 29. The question has been frequently put — " Is the law a science ?" 
 This has been happily answered by Sir William Jones. " If law be a 
 science, — and it really deserves so sublime a name, — it must be founded 
 on principle, and claim an exalted rank in the empire of reason.'" Ad- 
 mitting then, as all must, that it is founded on principle, and claims 
 the highest order of reason and intelligence, — what then is science ? 
 " Science in its most comprehensive sense only means knowledge, and 
 in its ordinary sense means knowledge reduced to a system — that is, 
 arranged in a convenient order, so as to be conveniently taught, easily 
 remembered, and readily applied.'" It is with a view to this that this 
 ANALYSIS has been arranged ; so that the student in his future study of 
 any one of the great subjects of the law shall be able to refer and place 
 it in this general analysis, as a sliudent in geography would refer to any 
 place that might claim his attention, in the general map of the world. 
 As a science, he should therefore analyze and arrange it, and seek to 
 understand its principles, and then reason and philosophize upon them, 
 so that it may be " conveniently taught, easily remembered, and readily 
 applied." He who will not do this, and thus study the law, will be a 
 mere drudge in the practice, while he that does may well hope, with 
 industry and perseverance, to attain that elevated rank in the profes- 
 sion, where stand and have stood so many of the learned lawyers of 
 the land. 
 
 § 30. The student should be aware that in this country the practi- 
 tioner is called upon so often, in cases so varied and dissimilar, that his 
 course of study should embrace the whole circle of the law, not only 
 for the purpose of enabling him to engage in so extensive a practice, 
 but also for the purpose of rendering him a sound and reliable lawyer- 
 for the law must be regarded as one consistent whole, each part reflect- 
 ing upon and giving aid to the other,— so that an enlarged and accurate 
 acquaintance with the whole will enlighten and strengthen the mind, 
 and enable the practitioner not only to discharge whatever class of 
 duties he may undertake with efficiency, but greatly facilitate the acqui- 
 
 ^ Jones on Bailment. 
 
 » Intro. Treatise, Lib. Useful Knowledge. 
 
CHAP. II.] OF LA W IN GENEBAL. 33 
 
 sition of sound legal knowledge in any one department. This is par- 
 ticularly necessary here, where we are frequently compelled to meet 
 rapid and striking changes in the law, made by new statutes and the 
 codes; for let the student be assured, that while he is well grounded in 
 the great principles and reason of the law, he cannot be far wrong in 
 the midst of any change of the law, or the most unexpected exigencies 
 of the practice. It was for this reason that Mr. Ewing when once 
 arguing a case in court, on being reminded that the code was against his 
 point, replied with triumphant pride, " I know no'thing of your code, 
 but I know what the law is." 
 
 CHAPTER II. 
 
 OP LAW IN GENERAL. 
 
 § 1. Law is the rule of human conduct. When this term is applied 
 in reference to the governing principles of all actions, inanimate as well 
 as animate, and arising from impulse or necessity, as well as from voli- 
 tion, it is used figuratively, as a trope, rather than in its true and literal 
 signification — as when we say, the laws of motion, the laws of gravita- 
 tion, the laws of vegetable or animal life. In these instances, where 
 the term law is used to denote action or motion, uninfluenced by rea- 
 son or morals, a more appropriate or literal, term may be used, as nature, 
 property, or instinct. Indeed, we may question whether the term is not 
 strictly confined to rational action only. Man is provident, chaste, or 
 virtuous from a regard to the precepts of natural or moral law, or from 
 the fear of the penalty of violating them. The brute creation are so 
 from their nature or instinct. He will perform his duty, or abstain 
 from what is forbidden, from a sense of his obligation to the law — 
 they from necessity or blind instinct. We therefore have no idea of 
 law where the action is governed by necessity or impulse, and not by 
 reason or volition — where there is no consciousness of right and wrong, 
 and no capacity to give a preference to one or the other.' 
 
 § 2. According to the source whence the law derives its authority, it 
 is divided into a number of primary divisions, as : I. Natural Law ; 
 II. Moral Law ; III. Political Law ; lY. Law of Nations ; T. Civil 
 or Municipal Law. 
 
 1 Christian's Note, 1 Bl. Com. 
 3 
 
34 INTBOD UCTION. [chap. ii. 
 
 I. NATURAL LAW. 
 
 § 3. Natural law is that rule of human conduct which is deduced 
 fi-om those immutable principles of justice — of right and wrong — result- 
 ing from our frame and being, and from the nature and reason of things, 
 independent of any positive law. It is that, says Justinian, which 
 nature teaches to all.' It is the will of God revealed to ]nan in the 
 works of nature. Being founded upon our nature and the relation of 
 things, it is uniform throughout the world, except trifling variance in 
 accordance with climate and other natural causes ; and it enters largely 
 into, and is the foundation of, all other laws. 
 
 § 4. The great business of man is the pursuit of happiness, and, prior 
 to positive laws, whatever course of conduct promotes his happiness 
 he calls right, and the contrary wrong. We find that our beneficent 
 Creator has made our duty and interest the same. The preservation 
 of life appears to be the great object of nature. This is effected in the 
 brute creation by instinct — in man by reason. But our reason is not 
 directed to the discovery of a set of rules of conduct in which we have 
 no other interest than to perform them, and to discharge an irksome 
 duty in our preservation, for our duty and our happiness are the same. 
 Nature has imposed upon us no severer rule in discriminating between 
 right and wrong. It appears to be the precept of nature, " that man 
 should pursue his true and substantial happiness ;" and, as we find one 
 course of conduct or another tends to, or is destructive of, man's real 
 happiness, so we may justly conclude that the one is commanded and 
 the other prohibited by the laws of nature. 
 
 § 5. Man in a state of nature has but few instinctive principles to 
 direct him. Reason is his principal guide. By the aid of it, and by 
 the precept just mentioned, the fund of natural law is acquired in the 
 same manner as all human knowledge — by experience. (Told, huno-er, 
 and want teach him to be industrious and provident ; his own weak- 
 ness, to depend upon the friendship and aid of others; and injustice 
 from others, gives a dislike to tyranny and oppression — and all, in the 
 end, teach justice, benevolence, and good-will to all mankind. Thus 
 step by step the whole code of natural law is acquired. 
 
 § G. Positive law is often nothing more than declaratory of the first 
 principles of the laws of nature. But it loses nothing of its force by its 
 receiving an additional sanction from the laws of man. 
 
 § 7. The law of nature teaches man his duty to himself and to others 
 independently of any established rule of his own. But man is a social 
 being, formed for society and dependent on others. In the great variety 
 of human transactions in society, there are many points left indifferent 
 
 1 Jus nnturale est quod natura omnia nnimalia docuit. Jus. lib. i. tit ii 
 
CHAP n.] OF LAW IN GENERAL. 35 
 
 by the laws of nature. Hence arises another set of laws, which will 
 be next considered. 
 
 II. MORAL LAW. 
 
 § 8. Moral philosophy, morality, ethics, etc. mean all the same thing, 
 says Dr. Paley ; namely, " that science which leaches men their duly, 
 and the reason of it.''^ It embraces every rule of human conduct in the 
 whole circle of laws. It includes whatever directs or restrains the con- 
 duct of man, either as a moral or social being. These rules are the laws 
 of nature,— the parent of all laws, as we have seen,— the law of the 
 revealed will of God, or religion, the law of public sentiment, the law of 
 honor, and the law of the land, or civil law. 
 
 § 9. Man was formed for society, and is neither capable of living 
 alone, nor has he courage to do it. He is therefore subject to the 
 opinions of others, for no man has either the courage or inclination to 
 set public opinion at defiance. Public sentiment has a pervading influ- 
 ence over man — none are above it, and there are very few below it. It 
 therefore forms a powerful rule of moral conduct. The character of 
 public sentiment will depend upon the character of the people. If they 
 be enlightened, virtuous, and industrious, it will be delicate, refined, and 
 severe — vice and iniquity will there find but little with which to asso- 
 ciate ; but, if they be ignorant, superstitious, and indolent, it will be 
 gross, perverted, and relaxed, and vice and iniquity will follow in their 
 train. How important it is, then, that every class of the community 
 should be educated and enlightened, as every one adds to the sum of 
 public sentiment, and increases or diminishes its moral worth ! 
 
 § 10. Another rule of moral conduct is the law of honor. This, too, 
 is a law of opinion, principally formed to regulate the intercourse of 
 persons of fashion, and between equals. It does not interfere with the 
 treatment of inferiors, or anything which does not relate to the inter- 
 course of equals. For this reason a person may be profane, cruel to 
 servants, or licentious, and yet punctilious in the rules of honor. Thus, 
 some are dishonest who would scorn to be considered dishonorable. 
 Persons the most strict in the rules of honor are often the loosest in 
 other rules of morality. In the intercourse of man with man, it is neces- 
 sary that they should have confidence with each other in something. 
 Honor may supply the place in some that honesty does in others. It 
 therefore answers a valuable purpose ; for it is better that a person 
 should have some governing principle of morality than none. 
 
 § 11. Another rule of moral conduct is the law of the land. In prac- 
 tical operation this is referable to two classes of persons : first, those 
 who take the law of the land as a rule of conduct which they may con- 
 scientiously obey or not, as suits their interests, without any regard to 
 moral principles, unless the same act was enforced by the principles of 
 
36 introduction: [chap. n. 
 
 natural law. Thus, any revenue or police law, merely as a positive 
 law, they would, infofo conscientiDe, consider themselves at liberty to 
 violate, in case they paid the penalty or could evade it. This is a very 
 loose principle of morality. No man can lea good citizen who does not 
 scrupulously observe every precept of the civil law of his country. As 
 it respects the wisdom or policy of the law, it is improper that any one 
 should array his wisdom in opposition to the legislative wisdom of the 
 country. He may argue against it, or use his influence to effect its 
 repeal, but while the law exists it is his duty, in point of conscience, to 
 obey, and receive whatever the law is, as right. As it respects the 
 public good, his duty is also the same. Laws are, or are supposed to 
 be, for the general good, and all are interested in their observance. In 
 every violation of the laws of the country, there is a moral evil in the 
 example, in its influence and effects. 
 
 § 12. It is equally contrary to sound moral principles for one to be 
 satisfied with his own moral conduct, in merely complying with posi- 
 tive law so far as to avoid its penalties, without a conscientious per- 
 formance of his duties, and full compliance with the law. It is bad 
 morality in those who are satisfied with their moral conduct, so long 
 as they comply with the letter of the positive law and escape its cen- 
 sure — those who make the lash of the civil law the measure of their 
 conscience. 
 
 § 13. The law principally relates to man as a social being. The pre- 
 cepts of even the natural, applicable to man as a solitary, individual 
 being, are but few. It is in the various relations and intercourse of man 
 with man in civil society, that the great body of the law has its origin 
 and application. The law, therefore, in regulating the intercourse of man 
 in society is relative, and whenever it establishes a right in one indi- 
 vidual it raises a corresponding obligation or duty in another. If a 
 debt be due from one to another, it is his right to demand and receive 
 it, and the obligation and duty of the first to pay it. So where one has 
 a right to a certain piece of property, it is the duty and obligation of 
 all others to refrain from interference with it. 
 
 § 14. Rights, as we have seen, are deduced and established by their 
 being consistent with, or productive of, the ultimate happiness of man. 
 In this all are equally interested. For the purpose of securing our own 
 rights and happiness, we have a strong interest and desire for the se- 
 curity and protection of the rights of others, for individual security is 
 only in proportion to that of the whole. The force of this interest is the 
 foundation of our obligation ; and thus it is that right and obligation are 
 always reciprocal, and arise out of the same transaction. 
 
 § 15. Moral rights and obligations are far more extensive and numer- 
 ous than those taken notice of by the civil law, or than we have 
 the means of enforcing. They are therefore divided into perfect and 
 
CHAP. II.] OP LA W IN GENERAL. 37 
 
 imperfect rights and obligations. Perfect rights may be asserted by- 
 force, or, what in civil society comes in place of private force, by course 
 of law ; but imperfect rights are those which may not or cannot be 
 thus asserted. A man has a right to his person' life, and property ; and 
 if he is attacked or injured in either, he may repel the attack by instant 
 force, or punish the aggressor by law ; these are, therefore, perfect 
 rights. But when we say that a father has a right to respect from his 
 children, a benefactor to gratitude from his protege, or a person in 
 distress to relief, we speak of rights of which we have no means of en- 
 forcing the obligations, and which are therefore imperfect rights. 
 
 In point of morality there is no difference in this distinction ; in point 
 of conscience they are equally binding. Rights and obligations are 
 imperfect either because in their nature they are incapable of being en- 
 forced, or because from the indeterminatenoss of the right or obligation 
 it is impracticable or impolitic for the civil law^ to apply a remedy. 
 
 § 16. Rights are again divided into natural and adventitious, alien- 
 able and inalienable. Katural rights are those which, independent of 
 any human institution, must, from the very nature of things, belong to 
 man in every situation, — such as man's right to his life, limb, and 
 libert}^, to the produce of his labor, and, in common w^ith others, to 
 air, light, and water. Adventitious rights arc those which are de- 
 rived from human institutions, — such as the rights a person may have 
 from the office lie holds, — as the right of a judge to pass a decree or 
 sentence, or of a magistrate, in certain cases, to command. Such also, 
 are patent rights, franchises, and other rights derived from the gov- 
 ernment. 
 
 § 17. Alienable rights are those which we claim over such things as 
 wc usually term property, — as money, lands, houses, etc. Inalien- 
 able rights are those which we have no right to part with, or that we 
 cannot part with, without endangering the rights of others, — such as 
 life and liberty, the rights of husband and wife, those of parent and 
 child, and the like. These are generally and naturally inalienable 
 rights, which, by nature as well as by the civil law, are protected as such. 
 Acts in contravention of them would not only be infamous and void, 
 but would be restrained bv the law. 
 
 III. POLITICAL LAW. 
 
 § 1 S. Mankind, for the purpose of protecting their mutnal interests 
 and social relations, have established themselves into separate commu- 
 nities, as their local situations, their interests, or their power dictated, — 
 varying in extent of territory, number of inhabitants, or as their intelli- 
 gence and tastes, or other circumstances may have affected them. The 
 institution thus established by such community, for the purpose of pro- 
 
38 INTRO D UCTION. [chap. ii. 
 
 moting theh" general interests and the management of their common 
 affairs, is called the government ; and that body of laws which relates 
 to the formation of this institution, and establishes the relations sub- 
 sisting between it and the people, is denominated political law. 
 
 § 19. The various institutions devised for the purpose of government 
 have been arranged by political writers into three classes : I. Monarchy; 
 II. Aristocracy; and III. Republic, or Democracy. 
 
 § 20. I. A monarchy is where the sovereignty is permanently vested 
 in one individual, with the executive, political, and legislative power, 
 more or less restrained, confided in him ; of which there are a num- 
 ber of different forms, — as absolute or despotic, limited or consti- 
 tutional, and hereditai-y or elective monarchy. Absolute or despotic 
 monarchy is where the executive and legislative power is vested in a 
 single person, as in Turkey and Russia. Instances of all the other kinds 
 of monarchies will readily occur upon the slightest acquaintance with 
 history. Most of the limited monarchies of Europe have in them a 
 mixture of the ingredients of the other forms of government, as in the 
 government of England, — the monarchy in the king or queen, the aris- 
 tocracy in the Lords, and the democracy in the Commons. The legisla- 
 tive power is vested in the concurrence of the three branches of the 
 government; and the English political writers consider this mixture 
 and union of the different forms of government, and the mutual checks 
 they form upon each other, as the perfection of government. But may 
 we not consider that it is the republican part of the government which 
 renders the monarchy tolerable to the free and liberal spirit of its 
 inhabitants ? 
 
 § 21. II. An aristocracy is where the political and legislative power 
 is vested in a select assembly, the members of which either fill the vacan- 
 cies in their own body, by an election, or succeed to their places in 
 it by inheritance, tenure of certain lands, or in respect of some personal 
 right or qualification. If the number of persons in whom this political 
 power is thus vested be very few, the government is usually called an 
 oligarchy. 
 
 § 22. III. A republic, or democracy, is where the political and legis- 
 lative power is vested in the people at large, either collectively or by 
 representation. Many governments have assumed or continued the 
 title of republic when they have ceased to deserve it, for the purpose of 
 deceiving the people by the influence of a name. It is unquestionably 
 in this definition of the term that the Constitution of the United States 
 has provided that it shall guarantee to every State in the Union a repub- 
 lican form of government. 
 
 §23. Theoretic politicians have often amused us with speculative ac- 
 counts of the origin of government. Some have founded their orio-in 
 upon patriarchial government, others in military establishments, and 
 
CHAP. 11.] OF LAW IN GENERAL. 39 
 
 others upon compact. But by whatever iiieans governments may have 
 been first established, the operating influence in all cases is either the 
 consent of the people or power. The most splendid instances of the 
 establishment of a government by the free consent and choice of the 
 people are found in the formation of the different State and General 
 Governments in the United States. Here we have seen the people meet 
 in their primary assemblies, choosing their delegates to meet in conven- 
 tions to form the constitution, which is afterward adopted or rejected 
 by a vote of the people. This requires a greater share of intelligence 
 and patriotism among the people, a greater equality in wealth, power, 
 and influence, than ordinarily belong to the people of the older govern- 
 ments of the world. In these respects the United States were, both from 
 moral and physical causes, peculiariy blessed. Instances of the forma- 
 tion of government by consent, but upon a more limited scale, are to be 
 found in more ancient history. "We may instance the municipal repub- 
 lics of Europe, and also the republic of Rome upon the expulsion of 
 Tarquin. 
 
 § 24. The instances of the establishment of government by power 
 are numerous. This power may be either physical or moral, — it may be 
 the power of the sword or the power of mere intelligence. The gov- 
 ernment founded in England by William the Conqueror is an instance 
 of a government founded wholly by physical power, — the sword. Its 
 origin has its influence upon the government to this day. Their char- 
 ters of liberty, since procured by the people, are more in the nature of 
 concessions wrenched by the subjects from their sovereign, than a com- 
 pact between the people and those they have placed to rule over them. 
 Moral power has also great influence in the establishment of govern- 
 ment. Was it not moral force that placed Leopold on the throne of Bel- 
 gium ? was it not the same power that placed Maximilian as emperor of 
 Mexico ? and then again to enable the people to resist the injustice and 
 to expel him ? This moral force and influence exist among nations as 
 well as between individuals ; it has set up governments and put others 
 down, and that same power may again be exerted. 
 
 § 25. The object sought for in all restraints upon government by 
 means of constitutions and limitations, is to secure for the governed 
 political and civil liberty. Liberty and freedom mean the same thing ; 
 it is that state of society in which the members of it are not restrained 
 in their pursuit of happiness, except by just and equitable laws, com- 
 mon to every one of that society, and not subject to the unknown and 
 arbitrary will of other men. But there is a distinction between civil 
 liberty and political liberty. Civil liberty is the power of doing what- 
 ever is naturally right, restrained only by just and equitable laws. 
 Political liberty consists in the enjoyment of all those rights and privi- 
 leges in the control and management of the government in common 
 
40 INTRODUCTION. [chap. ii. 
 
 with every other member of that society, restraiaed by no law, except 
 what is for the general good. In the United States, a foreigner, before he 
 is naturalized, enjoys all civil rights, in common with the citizens ; but 
 he is restrained, and does not enjoy political liberty until he is natu- 
 ralized. In Ohio it is precisely the same with the negro, — he enjoys all 
 civil, but not political rights. This distinction is an important one, but 
 which, in political discussion, is frequently overlooked. 
 
 IV. LAW OP NATIONS. 
 
 § 26. The law of nations is founded upon this idea, — that nations, 
 states, and bodies politic are to be considered as moral persons, capa- 
 ble of laws, and responsible for conduct and actions as natural persons 
 are. Nations, in their intercourse, have a sense of justice and pro- 
 priety of conduct toward one another, and are affected with a sense of 
 wrong when injustice or iniquity is done. When such wrong is felt, 
 they are like individuals, ready to appeal to the standard of right, — 
 that they should do to others as they wished others to do to them. 
 Upon this sense of natural justice, or the law of nature, together with 
 the course of proceedings in their intercourse with each other, and in some 
 instances the positive compact between them, a body of rules and regu- 
 lations has grown up in the intercourse of states, known as the law of 
 nations. It is a complex system composed of these various ingredients. 
 It consists of general principles of right and justice, equally suitable 
 to the government of individuals in a state of natural equality, and to 
 the relation and conduct of nations ; — of a collection of usages and cus- 
 toms, the growth of civilization and commerce, and of a code of con- 
 ventional or positive law.' 
 
 § 2"?. When new questions arise between two nations, in settling 
 their differences, all the elements of the law of nations are brought 
 into requisition ; and the natural sense of justice and humanity, what 
 has been said upon collateral subjects by ancient jurists, the light 
 thrown upon it by history and the practice and intercourse of nations, 
 — all these subjects will be urged in favor of the principles contended 
 for, nor will they neglect to delineate the consequences of a contrary 
 doctrine ; its injustice and inhumanity ; its iniquity and barbarism ; 
 all that distingTiishes the progress of civilization and Christianity, and 
 the dire consequences that great wrongs and injustice have brought 
 into the world, will be appealed to as arguments in the case. When 
 the question is settled in accordance with the sense of right and jus- 
 tice of mankind, and has received public approval, the case is referred 
 
 ' 1 Kent's Com. 3 ; 2 Mason's E. 443. 
 
CHAP, n.] OF LA W IN GENERAL. 41 
 
 to as settling a principle, and as an authority and precedent in the law 
 of nations. 
 
 § 28. The law of nations thus constructed is referred to in order to 
 settle questions in relation to war and peace, the rights of belliger- 
 ents, the rights and duties of neutrals, and the conduct and duties of 
 nations in relation to these subjects. A great variety of questions will 
 thus arise in the transaction of national intercourse. There is no na- 
 tional tribunal or court established having jurisdiction to settle such ques- 
 tions (as there might be), as there is between private individuals ; but 
 they are left to be settled by each nation in their negotiations and inter- 
 course with each other in the best way they may, and as interest and 
 sense of justice may dictate. The memorable negotiation between the 
 United States and Great Britain, in the matter of the privateer Ala- 
 bama, is a noted ease of this kind. 
 
 V. MUNICIPAL LAW. 
 
 § 29. Municipal law is a rule of civil conduct, prescribed by the legis- 
 lative power for the government of the people, or which the people have 
 adopted among themselves by common consent. Of these acts of legis- 
 lative power enacting or declaring the law maybe considered, — 1st, the 
 constitution of the country as the supreme law of the land, which con- 
 trols and governs all other laws, and the very government itself; 2d, 
 legislative enactments or statutes, which must conform to the consti- 
 tution, or they are void ; 3d, by-laws or ordinances of municipal cor- 
 porations, which must be within the legislative authority delegated to 
 them, and also conform to the general principles of law ; and 4th, cus- 
 toms and local usages adopted by the people by common consent. These 
 are either (1) general customs, or those applicable to and governing the 
 whole state, and (2) particular customs, -which prevail in particular 
 districts or localities. Of the first class of customs may be mentioned 
 the usage or custom of teams turning out to the right hand in passing 
 each other on the highways, and, of the second, the customs or usages 
 of business and commerce at various places. 
 
 § 30. Another source of the law is the decisions and practice of the 
 courts, which also partake of the nature of law adopted by coijimon 
 consent. Whenever a new question arises in court as to what principle 
 or practice shall govern the case, the decision, when made, becomes a 
 precedent, and establishes the law for the future in similar instances. This 
 is the case in England and this country, from which source a large por- 
 tion of the law is made up, under the designation of the common law. 
 This term is particularly ambiguous, but it generally means that por- 
 tion of the law which is not found in the written constitution and stat- 
 utes of the country, which is called the written law, lex scripta, in op- 
 position to the unwritten law, lex non scripta, or the common law of 
 
42 INTRODUCTION. [chap. ni. 
 
 the land.^ The evidence of the common law is found in the reports and 
 decisions of courts, and the writings of learned jurists who are ac- 
 knowledged as such by the courts ; and this constitutes tlie great body 
 of the unwritten law in opposition to the written or positive law of the 
 land. 
 
 §31. The courts, in deciding new and doubtful questions, resort, for 
 light and guidance, to various aids, such as are found in the celebrated 
 bodies of foreign law, as the Roman civil law and the writings of dis- 
 tinguished jurists, and which, upon principles of sound reason, philos- 
 ophy, and universal justice, may be consistent and adapted to our sit- 
 uation and circumstances, and maj' afford them such aid and light. The 
 term common law is also used sometimes to distinguish the great body 
 of the linglish law from that of this country, though the term is used 
 there precisely as we use it. Here the term may be applied to mean 
 either our common law, or particularly the English common law, just 
 as in England the terra civil law may be applied to mean the Eoman 
 civil law, or the civil law of England. So, also, the term common law 
 may be used in contradistinction to the civil law, or other kuown body 
 of laws. Chancellor Kent says, " The common law includes those 
 principles, usages, and rules of action applicable to the government and 
 security of persons and property which do not rest for their authority 
 upon any express and positive declaration of the will of the legislature.'" 
 
 CHAPTER III. 
 
 THE EXTENT OP TEKKITORY AND APPLICATION OF THE LAWS OP THE 
 
 UNITED STATES. 
 
 § 1. The laws of the United States are in force over a vast extent 
 of territory. The limits of the United States render it one of the great 
 dominions of the earth. It spreads across the whole continent, from 
 the Atlantic, on the east, to the Pacific, on the west; from the northern 
 lakes to the Gulf of Mexico; from 49° of X. latitude, extending south, 
 over the various climates of about twenty-five degrees, almost to the 
 tropic; with a mean length, from ocean to ocean, of about 2400 miles, 
 and a mean breadth of loOO miles, embracing within its limits about 
 three millions of square miles, and now probably having a population 
 of forty millions of people. In less than fifty years, it may well be anti- 
 cipated, there will be over one hundred millions of people within the 
 
 1 Warren's Law Study, 246 ; 1 Kent's Com. 4G8. 
 
 2 1 Kent's Com. 439. 
 
CHAP, in] EXTENT OF TERRITORY, ETC. 43 
 
 present limits of the United States east of the crest of the Rocky 
 Mountains. This population in their descent will be essentially 
 Anglo- Briton— descendants of the people of the British Islands, who 
 have brong'ht with them their laws, customs, and habits, and have- 
 here built up a new system of laws, making the English common law 
 the basis of their own. Of our forty millions of people, probably 
 one-tenth are foreigners by birth ; and of these, one-half are from the 
 British Islands, thi-ee-tenths from Germany, and two-tenths from other 
 parts of Europe ; still leaving our population essentially Anglo-Briton 
 in its origin and destination. 
 
 § 2. The people of the United States, however, are essentially homo- 
 geneous, and are every day assuming more and more of a national char- 
 acter. The evidences of the origin of our people are scattered over the 
 whole land, and are found in almost all our institutions, and especially 
 in the names of our people, as well as that of out- counties, towns, and 
 places, which would induce one almost to believe that he had not yet 
 left the British Islands. So much is this the case that everywhere 
 are found familiar names from England, Scotland, Wales, and Ireland, 
 — few from Germany, few from France, and a very few from Spain. 
 This origin of our habits and customs; this source of our common law, 
 has laid the foundation of our whole system of jurisprudence. To this 
 there is but a slight exception, to be found in Louisiana, Florida, and 
 New Mexico, where the laws of France and Spain prevailed for awhile, 
 and have left there a mere tincture on the laws to the present day. 
 Still, there is a striking uniformity in our language, customs, and laws 
 for so extensive a country, and every day they become more and more 
 identical and homogeneous, and make the people what they should be 
 — a nation, one in language, in laws, and in destiny. 
 
 § 3. That which strikes one's attention first, in e.xamining the United 
 States externally, is its divisions into States, counties, townships, and 
 towns. These divisional names are uniform through the Union, with 
 the exception that what elsewhere would be called counties, in Louis- 
 iana are parishes, and in South Carolina districts. This difference was 
 produced by its early French connection. Then in New England, what 
 are elsewhere called townships, are there called towns; this difference was 
 probably produced by the fact, that in early times the New Englanders 
 made their village or town organization coextensive with the township, 
 and called the whole the town. In New England the town is the divi- 
 sion in which is moved and organized the great primary organization 
 of the political movements of the people ; elsewhere it is more particu- 
 larly the counties. Within these respective divisions the people hold 
 their political meetings, pass their resolutions that give tone to the polit- 
 ical sentiment of the country, and appoint their delegates to the higher 
 meetings, conventions, or general assemblies. It is at these primary 
 
44 INTBODUCTION. [chap. iii. 
 
 meetings in towns or counties that people become acquainted with polit- 
 ical organization and parliamentary rules of proceedings, and learn 
 that they are a power in the state, and, as the original sovereign power, 
 give tone and force to the government itself. 
 
 § 4. Within the United States is to be observed what ordinarily be- 
 longs to one government organization divided into two distinct govern- 
 ments. The one, the State, to attend to all domestic and home affairs ; 
 the other, that of the United States Government, to attend to and direct 
 all foreign and national affairs. Each of these has its appropriate sphere 
 distinctly marked out, with proper checks and balances, which prevent 
 either from encroaching on the other. The States had previously been 
 organized as independent sovereign States, but it was desirable to form 
 a union of all the States, without surrendering the State government. 
 They therefore organized the United States Government with special 
 delegated and limited powers, to regulate and direct foreign and national 
 affairs, reserving to the States all the usual powers of an independent 
 government in relation to their domestic affairs. With a view of forming 
 this double government the Constitution of the United States was 
 adopted, giving certain specified powers to the government of the Union, 
 and restraining the States within those bounds which were necessary 
 to its preservation. 
 
 § 5. When the people of the Uaited States adopted their Constitution, 
 they declared in its preamble that it was done "in order to form a more 
 perfect union, establish justice, insure domestic tranquillity, provide for 
 the common defense, promote the general welfare, and secure the bless- 
 ings of liberty to themselves and their posterity." The Federal Gov- 
 ernment being so formed by the adoption of the Constitution, leaving 
 the State governments in full operation so far as their own domestic 
 affairs were concerned, it was an anxious question how far such a 
 double government would operate and act in harmony. Eighty years 
 of experience, under every circumstance that would try the capacity 
 and endurance of a government, have established the value of the 
 Union and the wisdom of the statesmen who produced it. To some 
 it appeared too artificial and complicated, and they were not without 
 fears as to its success. About tliirty-five years ago, a foreign gentle- 
 man of great celebrity, and of friendly sympathies for us, thus writes 
 of our government:^ "The first difficulty which presents itself arises 
 from the complex nature of the Constitution of the United States, which 
 consists of two distinct social structures, connected and, as it were, in- 
 cased one within the other ; two governments completely separate, and 
 almost independent, the one fulfilling the ordinary duties, and respond- 
 ing to the daily and indefinite calls of a community; the other circum- 
 
 ' 1 De Tocqueville, Democracy in America, 73. 
 
CHAP, in.] EXTENT OF TEBRITORY, ETC. 45 
 
 scribed withia certain limits, and only exercising an exceptional author- 
 ity over the general interests of the country. In short, there are twenty- 
 four^ small sovereign nations, whose agglomeration constitutes the body 
 
 of the Union The form of the Federal Government of the 
 
 United States was the last to be adopted ; and it is, in fact, nothing 
 more than a summary of those republican principles which were cur- 
 rent in the whole community before it existed, and independently of its 
 existence. Moreover, the Federal Government is, as I have just ob- 
 served, the exception ; the government of the States is the rule." 
 
 § 6. The laws of the several States are operative within their own 
 boundaries respectively ; but the Constitution and laws of the United 
 States are operative and in force everywhere throughout its whole 
 limits, and especially where there are no States or State laws, — as in 
 the Territories, which have not yet been organized into separate States ; 
 on the high seas and navigable waters, adjoining the exterior limits 
 of the Union, and outside the boundary of the States, where the 
 national jurisdiction is admitted by the laws of nations to extend out 
 from land some distance (said by some authors to be the distance of 
 a cannon shot — three or five, or, perhaps, ten miles) ; on board also 
 of our national ships and commercial vessels, wherever sailing under 
 the national flag; and also within the limits of the District of Colum- 
 bia (at Washington City) ; the fortifications, lighthouses, etc., where 
 special jurisdiction has been given and surrendered by the respective 
 States to the general government ; — in all these instances the juris- 
 diction is yielded to the Union. This special jurisdiction is given to 
 the Union on account of its greater convenience ; and for the same 
 reason, the entire and exclusive authority has been given by the Con- 
 stitution to the national government, to regulate commerce with foreign 
 nations and among the several States. Although internally there is 
 the appearance of a diversity, — the many ; yet externally is presented 
 the one, — the Union ; the one nation, one flag, and one people and 
 language, which has frequently receiveji the appellation of the Anglo- 
 American.' 
 
 § 7. In the establishment of all government there are but two ob- 
 jects that should be especially kept in view — they are, protection and 
 justice, — protection and safety (which is the same thing) to the people ; 
 and when their rights or safety is disturbed or injured, that justice 
 should be speedily administered. This is the sole object and legitimate 
 end of all governments. To the same source and power from which 
 protection and safety are sought, must justice also be looked for. The 
 protection and safety due to the citizen may be invaded from abroad, — 
 
 1 Now thirty-seven States in the Union. 
 2 1 Do Toequeville, 67, and elsewhere. 
 
46 INTRODUCTION. [chap. ni. 
 
 from foreign power, or the neighboring States or citizens thereof; or 
 they may be invaded by our own citizens, or the powers within our 
 State. The first of these cases is committed to the government of the 
 Union, the other is left and confided to the State, and each is required 
 to administer justice in the respective case as tlie great object of its 
 creation. In treating of this twofold government and its laws, it is 
 chosen to begin with the aggregate, the whole, and proceed thence to its 
 parts and minutiae analytically, as best adapted to the purpose, rather 
 than a synthetic course, as recommended by De Tocqueville in his 
 views of the United States and its government. 
 
 § 8. The question of the administration of the laws over so extensive 
 a territory as that of the United States is an interesting theme. How 
 can an administration at Washington carry out its execution of the 
 laws in the extremes of our extensive dominions ? All governments 
 are more or less centralized, or more or less diffused ; and all have two 
 distinct interests of the country to attend to : the one is the mainte- 
 nance of its foreign relations, and the enactment and execution of its 
 general law; the other is the administration of its local and domes- 
 tie affairs. So far as the first is concerned, the more centralized the gov- 
 ernment is, the better ; but as it concerns the second, the more diffused 
 the administration, the more secure will be the liberties of the people, 
 and the greater certainty there will be thiit their local affairs and domes- 
 tic administration will be faithfully executed, for the more it will be in 
 the hands of the people. 
 
 § 9. In monarchial government the more concentrated its administra- 
 tion is, the more secure it considers itself to be ; for there the less are 
 the people intrusted with it, and the less they know of their govern- 
 ment and its administration. But in republics the administration is 
 more diffused, and in the immediate hands of the people ; and their 
 execution of the laws is only a compliance with what they themselves 
 have enacted. It is only administering to their own wants and interests. 
 The more the people are thus intrusted the more intelligent they be- 
 come, and the more capable they are to attend to the execution of their 
 own affairs. 
 
 § 10. The effect that the centralization or the diffusion of the govern- 
 ment and administration has upon the people and country has been well 
 observed by an eminent foreigner,' who has critically examined our 
 government. He distinguishes between the government and its admin- 
 istration, and commends a centralized government, and that country 
 which never centralizes its administration. "Indeed," says he, "I can- 
 not conceive that a nation can live and prosper without a powerful cen- 
 tralization of government. But I am of opinion that a centralized ad- 
 
 ' 1 De Tocquovillo, Demo, in Americn, ITO. 
 
CHAP. III.] EXTENT OF TERRITORY, ETC. 47 
 
 ministration is fit only to enervate the nation in which it exists, by inces- 
 santly dimiaishin? their local spirit. Although such an administration 
 can bring together at a given moment, on a given point, all the dispos- 
 able resources of a people, it injures the renewal of those resources. 
 It may insure a victory in the hour of strife, but it gradually relaxes 
 the sinews of strength. It may help admirably the transient greatness 
 of a man, but not the durable prosperity of a nation." 
 
 §11. With a view to this idea, a compai'ison might be drawn between 
 two of the most extended and powerful goveruments of the world, — 
 Russia and the United States, — both with sufficiently centralized gov- 
 eruments, but with an entirely different administration. 
 
 In Russia every public act, every administrative measure at any dis- 
 tant point, must emanate from, and be superintended by, the head of the 
 government, — the centralized power. For there " numerous assemblies 
 in districts or counties have not in general been multiplied, lest they 
 should be tempted to learn their administrative duties, and interfere 
 with the government." Again the same author says : " In the United 
 States there is no centralized administration and no hierarchy of public 
 functionaries. Local authority has been carried farther than any Euro- 
 pean nation could endure without great inconvenience But 
 
 in the United States the centralization of the government is perfect; 
 and it would be easy to prove that the national power is more con- 
 centrated than it has ever been in the old nations of Europe." 
 
 § 12. Here, then, we have a highly concentrated centralized govern- 
 ment for our general and foreign affairs, and a highly diffused admin- 
 istration for our local and domestic interests. 
 
 We are divided up into States, counties, and townships, each having 
 an administration of its own, and each in relation to its private and do- 
 mestic affairs enabled to organize measures best adapted to its wants 
 and interests, without waiting the assent or direction of any central 
 _government. 
 
 These local administrations are just as perfect in the most distant 
 State as in those the nearest to the head-quarters of the national gov- 
 ernment. Instead of these matters being directed and carried on by a 
 mandate from the sovereign head of the central government, they 
 are cared for and carried on by the people themselves, at home, in 
 the most efficient manner, because it is their own affair, and their 
 interests and welfare are dependent on the manner in which it is ac- 
 complished. 
 
 § 13. Instead of the will and energy of the administration going forth 
 in its mandates from the central head-quarters to its extremities, the 
 sovereign will and energy come up from the people in their local 
 organizations. In their primary assemblies they are accustomed to 
 
48 INTRODUCTION. [chap. m. 
 
 think of and understand their governmental affairs, to consider them their 
 own, and that their own interest and welfare depend upon them. 
 
 In these matters, public opinion may, in the first instance, be fre- 
 quently in the wrong, but in the end "their second sober thought" 
 will certainly be right. The free canvassing of these questions among 
 themselves are infallible aids in producing the right results, as the final 
 verdict of history is true. A noted instance of this was the surrender 
 of Mason and Slidell to the British Government. The first voice of 
 the American people was, not to surrender them by any means ; and 
 upon this point they were very determined. But when well informed 
 that the law was most decidedly against them, — and to the law they 
 are accustomed to listen, — they quietly submitted to what they could 
 not help without a violence to the law. 
 
 § 14. It is not only interesting but useful for the student to observe 
 these various sources and administration of the law ; to observe how 
 the whole country is divided into small districts, convenient for the 
 people to attend to the administration and execution of their own 
 affairs, and how the public sentiment and the popular will concen- 
 trate from these local centers to the common center of the Federal 
 Union, and thence reflect back in the general laws for the common 
 welfare of the whole nation. By observing these the student will be 
 better prepared to enter upon the study of the laws themselves, and 
 learn what they are, and how they apply to this state of things. He 
 will perceive that this apparently complicated administration is simple 
 enough in practice, and efficient because it proceeds from those who 
 are most interested in its due execution, and has been so tested by the 
 experience of more than eighty years, under every circumstance of peace 
 and war, of conflict and triumph. 
 
eooik: I. 
 PUBLIC LAW. 
 
 CHAPTER I. 
 
 GOVERNMENT AND LAW. 
 
 § 1. Civil or municipal law is a rule of civil conduct, instituted by 
 the legislative authority for the government of the people, or which the 
 people have instituted for themselves by a general consent. As a rule 
 of conduct its object is to direct and comihand what is right, and to 
 prohibit and prevent what is wrong. One of the principal divisions of 
 the law is, therefore, into right and wrong. 
 
 § 2. The subjects of the law — those upon whom it operates — are per- 
 sons. Persons are either public or private, — the public functionary 
 and the private citizen. Persons are also either natural or artificial : 
 natural are such as are formed by the hand of nature; artificial are 
 creatures of man's invention, formed for the purposes of society, — as 
 corporations and bodies politic. But persons, wiether natural or arti- 
 ficial, may be arranged under the former division of public or private. 
 Now, as all law may be referred to persons in one or the other of these 
 capacities, this gives an occasion for another division of the law into 
 public iLX]d private. The law thus falls into a fourfold division, which 
 this Analysis will follow into the four following parts : I. Public rights 
 (jus publicum), or those rights which appertain to or arise from public 
 institutions ; II. Private rights (jus privatum), or rights which apper- 
 tain to a private individual ; III. Private ivrongs, or civil injuries 
 (injura civile), with the means of redressing them by law; and IV. 
 Public wrongs, or crimes and misdemeanors, with the means of pre- 
 vention and punishment. Thus, the law is divided into its four parts 
 
 public and private, civil and criminal. 
 
 § 3. When a people are united by the ties and relations of an inde- 
 pendent nation, they become a body politic, — an artificial person 
 capable of moral action, and susceptible of obligations and law. The 
 rules and regulations adopted for its management — the machinery by 
 which its affairs arc transacted — are called the government, and the 
 body politic itself the state. Those rules of action which direct its 
 
 4 (49) 
 
50 PUBLIC LAW. [book i. 
 
 conduct in its intercourse with other nations or states are the law of 
 nations. Those rules by which its political institutions are established 
 and ascertained with regard to the form of its government, — the 
 machinery by which it should be set into operation, and the principles 
 which should govern it practically or theoretically, — are its political 
 laws, or politics. Of. these we have already treated. 
 
 § 4. But when we refer to the rules of action which govern the in- 
 ternal concerns of the body politic, which define and regulate its com- 
 ponent parts, and the rights or duties of individuals, which become a 
 positive law or perfect rights of the citizens, we refer to the civil or 
 municipal law of the country of which we intend to treat. 
 
 § 5. In pursuing the first division, or public law, we shall first treat 
 of the rights appertaining to or flowing from the government or states 
 as the first and highest artificial public person ; then of those inferior 
 bodies politic which form component parts of the state itself; and lastly, 
 of those rights which belong to or flow from natural public persons 
 who are functionaries of the government. These divisions will include 
 all those rights which appertain to public persons. 
 
 § 6. Law might again be divided, as rights appertaining to these 
 public persons, or as duties or obligations flowing from them. But, as 
 already remarked, rights and duties are relative terms : whenever there 
 is a right in one person, there is a corresponding duty or obligation in 
 another. If protection be an obligation due from the government to an 
 individual, then it is a right in that individual which he may demand. 
 Thus, it appears that by treating of law as rights only, the obligations 
 or duties which are dependent on them will naturally appear without 
 treating of each distinctly. 
 
 § 7. We have already considered how government came to be 
 formed and organized, and on what its powers depend. As they are 
 mere creatures of the imagination, they can be known only by the 
 powers and functions they exercise. This depends upon the constitu- 
 tion, which means the fundamental laws of the state, whether it be a 
 written instrument, as that of the United States, or an aggregate of 
 laws and usages which have been formed in the course of ages, as the 
 Constitution of England. We will examine these fundamental laws as 
 they regard the State of Ohio, for it is in them that the rights of the 
 State exist. 
 
 § 8. The object of all governments is the institution of laws, the 
 execution of those laws, and the decision of all questions arising under 
 them. Therefore, almost all governments have three distinct depart- 
 ments — the legislative, the executive, and the judicial — established by 
 the constitution. In the Federal Constitution, as well as in the Constitu- 
 tions of the several States, these several departments or powers are co- 
 ordinate and equal ; yet each is supreme in its appropriate jurisdiction. 
 
CHAP. 1.] GOVERNMENT AND LAW. 51 
 
 Neither can encroach upon the rightful powers of the other, when within 
 its legitimate sphere, but may be restrained when overleaping its bounds. 
 
 § 9. In the different governments of the world there are discoverable 
 two extremes : the one, where all power and authority emanate from 
 one head, as though it were its life and soul ; the other, where the sov- 
 ereignty is in the people, and the socereign will emanates from them. 
 The first may be exemplified in the government of Russia or Turkey; 
 the latter by some of the free cities, ancient or modern, where the whole 
 population might assemble, and by their majority manifest their sov- 
 ereign will in the management and direction of their national affairs. 
 The idea of 'the American government is found in the primary assem- 
 blies of the people. It was there fostered and educated, and prepared 
 for a more extensive field of operation. The township and county 
 organization were its cradle. They became aware that there was power 
 and safety in a more extended combination. But then it was obvious 
 that the whole people could not assemble and direct their affairs imme- 
 diately themselves. This difficulty was obviated by a system of dele- 
 gation, which eventually became the General Assembly of the States, 
 and Congress of the Union. But these delegates were invariably held 
 responsible to their constituents, in whom the sovereignty always 
 resided. 
 
 § 10. That distinguished foreigner, who has so profoundly studied our 
 institutions, has observed : " The principle of the sovereignty of the 
 people is always to be found, more or less, at the bottom of almost all 
 human institutions, generally remaining there concealed from view. 
 ... In America, the principle of the sovereignty of the people is not 
 either barren or concealed, as it is with some nations ; it is recognized 
 by the customs and proclaimed by the laws ; it spreads freely, and 
 arrives without impediment at the utmost consequences. If there be a 
 country in the world where the doctrine of the sovereignty of the people 
 can be fairly appreciated, where it can be studied in its application to 
 the affairs of society, and where its dangers and its advantages may be 
 judged, that country is assuredly America." 
 
 §11. The government of the States gradually grew out of the ex- 
 perience of the people, as their needs, prosperity, and safety required. 
 But the formation of the government of the United States, with all 
 its limitations and restrictions, as aa original invention, required more 
 experience, wisdom, and patriotism than ever before were applied to 
 the organization of a government. Experience demonstrates that the 
 more enlightened are the people, the more liberal will be the govern- 
 ment ; and this reflects back again, so that the more liberal the govern- 
 ment is, the more enlightened and prosperous will be its people. This 
 difference in the formation of the various governments gives them a dif- 
 ferent character, which is estimated and appreciated just as it is in an 
 
52 PUBLIC LAW. [book i. 
 
 individual; and this demonstrates that government or nation may be 
 considered, as has been already said, as an artificial person, morally ca- 
 pable, as between nations, of laws and government. 
 
 § 12. The State of Ohio, as an independent sovereignty, has those 
 fundamental divisions and departments of the government which have 
 been pointed out. But the State, or the people at least, has delegated 
 a portion of the rights and powers which usually appertain to an inde- 
 pendent State, to the general government of the Union. The State 
 possesses all the powers incident to a sovereign independent govern- 
 ment, except as to those powers which have been delegated to the 
 United States. These delegated powers, though they constitute some 
 of the most important functions which can be exercised by an independ- 
 ent sovereign, are yet limited and defined in their extent and opera- 
 tion with regard to the State. 
 
 § 13. Every government has two great and leading interests to attend 
 to, which are distinct. The one consists of its domestic affairs, — its 
 municipal polity ; the other of its foreign affairs, — political and com- 
 mercial. In the United States, the first of these objects belongs exclu- 
 sively to each of the States individually; the second is confided exclu- 
 sively to the government of the United States. The State of Ohio 
 being regulated and managed by this twofold government, — that of the 
 United States, and its own individual government, — we are under the 
 necessity of examining the rights appertaining to each. 
 
 CHAPTER II. 
 
 GOVERNMENT OF THE UNITED STATES. 
 
 § 1. The colonies of which this country was composed previous to 
 the Revolution, though separated by territorial boundaries, and in some 
 respects jealous of each other, and of their individual sovereignty, that 
 forbade their union in one consolidated government, were yet always 
 united by a community of interest and similarity of origin and feelings, 
 and often called upon " to consult together for the common welfare." 
 For this purpose they sent delegates to meet in Congress, to agree 
 upon measures to be recommended to the several colonies, subsequently 
 States, as would best promote their common interest Congress, as 
 mere delegates from the several colonies, issued the Declaration of 
 Independence, contracted foreign alliances, and endeavored, by their 
 recommendations to the several colonies, to strengthen the Union, 
 which was held together by ties so feeble. During the greater part of 
 
CHAP. II.] GOVERNMENT OF THE UNITED STATES. 53 
 
 the War of tbe Revolation, a sense of common clanger, and the abso- 
 lute necessity of united efforts in the glorious struggle in which they 
 were then engaged, were their only bond of union. 
 
 § 2. But it soon became desirable to have something like a written con- 
 stitution and a definite form of government for the Union ; and therefore, 
 as early as lt78, such a union was proposed by the " Articles of Con- 
 federation;" but, in consequence of the jealousy entertained by the 
 individual States for the preservation of their independence and sover- 
 eignty, and other difiiculties incident to the formation of a union be- 
 tween so many independent States, these Articles of Confederation were 
 not adopted by all the States until 1781. The defects of this plan, and 
 its incapacity to answer its intended object, soon became evident. It 
 conferred upon Congress some of the powers of sovereignty, — as the right 
 of making peace and war, the direction of all military officers, and all 
 transactions with foreign governments. But they could make no laws 
 for the government of individuals; could raise no money or troops, ex- 
 cept by requisition upon the State legislatures ; and could exercise no 
 power of importance without the assent of nine States. The funda- 
 mental and fatal defects of this sy.stem were, that it was a league of the 
 States, an attempt to govern them in their sovereign capacity, with in- 
 sufScient legislative authority, and almost destitute of any judicial or 
 executive power. The system was so frail a bond of union that the 
 States — after refusing to pay any respect to the requisitions of Congress, 
 and withholding all confidence in the ability of Congress to enforce 
 their demands or perform their engagements — would soon have brought 
 the tottering edifice to an entire dissolution if it had not been super- 
 seded by the present Constitution. 
 
 § 3. With a view of improving the then defective government. Con- 
 gress (in February, 1787) adopted a resolution expressing an opinion 
 that it; was expedient that on the second' Monday in the following May 
 a Convention of Delegates, to be appointed by the several States, be 
 held in Philadelphia, for the sole and express purpose of revising the 
 Articles of Confederation, and reporting to Congress and the several 
 legislatures such alteration and provisions therein as shall be — when 
 agreed to in Congress, and confirmed by the States — adequate to tho 
 exigencies of government and the preservation of the Union. Accord- 
 ingly, a convention was hold, which reported the present Constitution 
 of the United States as the fruits of their labors and deliberation. 
 This instrument, upon its adoption by tbe Convention or approval by 
 Congress, did not become binding upon the Union; nor was tho rati- 
 fication to be submitted to the .several State governments, but to tbe 
 people of each State, assembled in conventions called for that purpose. 
 There is therefore this essential difference between the adoption of the 
 Articles of Confederation and that of the present Constitution: the 
 
54 PUBLIC LA W. [book i. 
 
 former was a compact, formed and ratified by the several States as a 
 leag-ue or confederation between tbeni in their individual sovereign 
 capacity ; the latter is formed on the broad basis of the will of the 
 people, and derives all its authority from this ratification. 
 
 §4. The Constitution was finally ratified by el&ven States, and the 
 new government went into operation under it on the 4th of Mai'ch, 
 1789. Under its auspices public credit was soon restored, public con- 
 fidence established, and its beneficial influence was felt in the promo- 
 tion of national and individual prosperity, which has ever since con- 
 tinued under its protecting care and influence. It has produced that 
 harmonious union of States which has been now tried for almost eighty 
 years, under circumstances of war and peace, of adversity and pros- 
 perity, of party contest and strife. Yet it has preserved that Union 
 which the illustrious Washington called " the main pillar in the 
 edifice of our real independence, the support of our tranquillity at home 
 and peace abroad, of our safety, of our prosperity, of that very liberty 
 which we so highly prize." 
 
 § 5. The Constitution of the United States is not a compact entered 
 into between the States as independent sovereigns, but by the people 
 of the United States with reference to the States, and with the view of 
 preserving the government of the States, individually, unimpaired, ex- 
 cept as to the limited powers conferred upon the general government 
 — the principal object of which was to attend to the foreign relation of the 
 Union, and regulate the internal intercourse between the several States. 
 The members of the Convention that adopted the Constitution did not 
 represent their respective States, but the people of their State, as a part 
 of the people of the United States. The Constitution was not adopted 
 by the States as such, but by the people of the United States in the sev- 
 eral State Conventions. It was not a treaty between the several States 
 as independent sovereigns, but a compact between the people of the 
 United States, by which they restrained their respective State govern- 
 ments as to certain powers incident to every sovereign state, and con- 
 ferred them upon another body politic, for the general good and welfare 
 of the whole. But in the formation of the Constitution the people en- 
 deavored to preserve the rights and influences of the States individually, 
 as far as they thought it consistent with the preservation of the Union 
 and the common interest. The Constitution, therefore, is a combination 
 of the interest of the people collectively, and of the States individually. 
 The House of Kepresentatives is a representation of the people without 
 regard to the States; the Senate, of the States without regard to the 
 people. In the election of the President and Vice-President, the influ- 
 ence of the States and that of the people are combined. 
 
 § 6. The government of the United States and that of the State act 
 in different places, and pursue different objects, but act in perfect bar- 
 
CHAP. II.] GOVERNMENT OF THE UNITED STATES. 55 
 
 mony with each other. The United States have in charge the general 
 welfare of the Union, and the powers which they may constitutionally 
 exercise for this purpose may be conveniently enumerated as follows : 
 to make treaties, to declare war, to raise and support armies and 
 navies, to make and regulate coins, to regulate commerce, foreign and 
 domestic, to lay and collect imposts, to establish post-offices and post- 
 roads, and to make all laws necessary for these purposes. No State has 
 the right to exercise any of these powers. Each State has the power to 
 enact, adjudicate, and carry into execution all laws necessary for the 
 preservation of the life, property, and liberty of all persons within its 
 own territory. Over these objects of municipal polity the United 
 States have no authority, and can exercise no right or power with 
 regard to them.' 
 
 § 1. The government of the United States is confined to the rights 
 and powers given to it by the Constitution, and to the making of all 
 laws which shall be necessary and proper for carrying them into exe- 
 cution. It is limited as to its powers, though supreme as to the ob- 
 jects confided to it. The Constitution, and the laws enacted in con- 
 formity with it, under the authority of the United States, are the supreme 
 laws of the land, by which the judges in every State are bound, notwith- 
 standing anything in the Constitution or laws of the State to the 
 contrary. The States may exercise all powers which have not been 
 exclusively granted to the United States or prohibited to the States, or 
 which would be inconsistent with those which may be constitutionally 
 exercised by the general government. 
 
 § 8. The government of the United States is one wholly of delegated 
 powers, and its objects are all national. Those objects are comparatively 
 few, and their general character enumerated; while the authority and 
 powers of the States are unlimited, and embrace all those that usually 
 appertain to all governments, not inconsistent with the Constitution 
 and laws of the Union. The States possess all the powers which they 
 have not surrendered; the government of the Union has only such as 
 the Constitution confers upon it, either expressly or incidentally, by 
 reasonable construction. Whenever an act of the general government 
 is challenged, a grant of power for it must be shown, or the act is void. 
 Whatever is unwarranted or forbidden by the Constitution, cannot be 
 accomplished by any roundabout way Whatever is contrary to the 
 Constitution of the United States, whether done by an act of Congress 
 
 1 This was written before the adoption of the 13th Amendment to the Consti- 
 tution, and the enactment of the Civil Rights Act by Congress. But the power 
 of the States still remains the same, it is apprehended, except so far as this 
 amendment authorized Congress to interfere to preserve civil rights, when ques- 
 tioned, as to race and color. 
 
56 PUBLIC LA W. [book i. 
 
 or by that of a State legislature, may be declared by the judiciary, and 
 especially by the Supreme Court of the United States, to be unconstitu- 
 tional and void. 
 
 § 9. A State within the Union is a government within a government, 
 imperium in imperio, as a city or county within a State, except that 
 each is confined to its particular jurisdiction, and the one cannot tran- 
 scend the other within it. The Constitution or fundamental laws of 
 the State or government must be the paramount law of the land, or the 
 name of constitution would be false and useless. It is the supreme law, 
 lex legum. All laws must be construed by it, and whatever is palpar 
 bly contrary to it is void. Wherever the United States has the juris- 
 diction and the authority, it is paramount, and the State must yield to it. 
 The Constitution of the United States declares that the Constitution, 
 and the laws of the Union made in pursuance thereof, and all treaties 
 made under the authority of the United States, shall be the supreme 
 law ; and the judges in every State shall be bound thereby, notwith- 
 standing anything to the contrary in the Constitution and laws of any 
 .State. Members of the legislatures, and all executive and judicial 
 officers, shall be bound by oath to support that Constitution. 
 
 § 10. Notwithstanding the plain and necessary indication of the Con- 
 stitution itself, the paramount authority of the Union was questioned 
 for the purpose of promoting the secession and the great rebellion of 
 18G1, and by the ensuing contest the question of secession and the su- 
 premacy of the United States was forever settled in favor of the Union. 
 But the question was long before settled in the mind of every candid 
 man who was not a rebel. As long since as 1830, Mr. Madison, in a letter 
 to Mr. E. Everett, wrote as follows : " The Constitution of the United 
 States was formed, not by the government of the component States, as 
 the former government, for which it was substituted, was formed. Nor 
 was it formed by a majority of the people of the United States as a sin- 
 gle community, in the manner of a consolidated government. It was 
 formed by the States ; that is, by the people in each of the States, act- 
 ing in their highest sovereign capacity, and formed, consequently, by 
 the same authority which formed the State Constitutions. Being thus 
 derived from the same source as the Constitutions of the States, it has 
 within each State (he same authority as the Constitution of a State ; and 
 it is as much a Constitution, in a strict sense of Ihe term, within its pre- 
 scribed sphere, as the Constitutions of the States are within their respect- 
 ive spheres ; but with this obvious and essential difference — that, being 
 a conipact among the States in their highest sovereign capacity, and 
 constituting the people thereof one people for certain purposes, it can- 
 not be altered or annulled at the will of the States individually, as the 
 Constitution of a State may be at its individual will." 
 
 § 11. Whatever rights the government of the United States may pes- 
 
CHAP. III.] COKGRESS. 57 
 
 sess for exercising any of the powers incident to the Constitation, they 
 may all be classed under the legislative, the executive, or the judicial 
 powers of the United States. And in pursuance of this division we 
 shall proceed to consider them in the following chapters. 
 
 CHAPTER III. 
 
 CONGRESS. 
 
 § 1. The legislative power of the United States is vested in Con- 
 gress, consisting of a Senate and a House of liepresentatives. The 
 Souse of Representatives is composed of members chosen every second 
 year by the people of the several States, who are qualified as electors 
 for the most numerous branch of the State legislature. A representa- 
 tive must have attained the age of twenty-five years, been a citizen of 
 the United States for seven years, and aa inhabitant of the State in 
 which ho is chosen, in order to be eligible to a seat. The representation 
 is apportioned among the several States according to their population, 
 as enumerated throughout the United States every ten years. ^ Every 
 State is entitled to at least one representative ; but no apportionment can 
 give a greater representation than one in every thirty thousand. The 
 present representation is apportioned to one in every one hundred and 
 twenty-seven thousand, giving to the House of Representatives, accord- 
 ing to the Act of Congress (of March 4th, 1862), 241 members, appor- 
 tioned to the several States, and giving each from one to several mem- 
 bers ; and to New York thirty-one, the State which has the largest 
 representation. Whenever a vacancy happens, the State executive 
 issues a writ of election. The House chooses its Speaker and other 
 officers, and has the sole power of impeachment. 
 
 § 2. The Senate is composed of two members from each State, chosen 
 by the legislature for six years. They are divided into three classes, 
 so that one-third are chosen every second year. The State executive fills 
 vacancies temporarily, until they are filled by the legislature. A sena- 
 tor must be of the age of thirty years, nine years a citizen of the United 
 States, and, when elected, an inhabitant of the State which be repre- 
 sents. The Vice-President of the United States is ex ofiicio President of 
 
 1 The enumeration will now include all except Indians not taxed. The 14th 
 amendment reduces the apiDortionmont in proportion as persons in every State 
 are excluded from voting on account of race or color. The 15th amendment (if 
 adopted) will supersede this restriction. 
 
58 PUBLIC LAW. [book i. 
 
 the Senate, but has no vote except when the Senate is equally divided. 
 The Senate chooses a president pro tempore, and its other ofBcers. The 
 Senate is the constitutional adviser of the Executive in making treaties 
 and appointing officers, and has the sole power of trying impeachments. 
 
 § 3. Congress are to assemble at least once in every year, on the first 
 Monday in December, unless thoy appoint a different day. Each house 
 judges of the election and qualification of its members, and a majority 
 of -each is a quorum. Each determines the rules of its proceedings, 
 punishes its members for disorderly behavior, and, with the concurrence 
 of two-thirds, may expel a member. A journal is to be kept of the pro- 
 ceedings of each house, which is to be published, except such parts as 
 require secrecy. 
 
 § 4. The members of either house of Congress receive a compensar 
 tion for their services, established by law, and paid out of the national 
 treasury. They are, in all cases except treason, felony, and breach of 
 the peace, privileged from arrest during their attendance, and in going 
 to and returning from Congress. They are exempted from being ques- 
 tioned in any other places for any speech or debate in either house. These 
 are the rights and freedom of the members guaranteed ; but they are . 
 rather the privileges of the people who are represented, and whose affairs 
 thoy are transacting, than that of the individuals to whom they apper- 
 tain. 
 
 § 5. To guard against corruption, the appointment of any member 
 of Congress is prohibited to any civil office under the authority of the 
 United States, which shall have been created, or the emoluments 
 of which shall have been increased, during the time for which he may 
 have been elected ; and no person holding any office under the United 
 States shall be a member of either house. It is to be regretted that 
 members of Congress were not further removed from executive influ- 
 ence by any appointment under the President. 
 
 § 6. As the House of Representatives was supposed, on account of 
 the shortness of its term of service, to be more under the control of the 
 people, and to represent more directly their wants and feelings, than the 
 Senate, the right of raising revenue is solely intrusted to them. In 
 such bills the Senate can only propose and concur in amendments. This 
 is the only privilege, in its legislative character, which is possessed by 
 the House, that is not equally shared by the Senate. In all other legis- 
 lative acts they are perfectly equal, and serve as mutual checks upon 
 each other. 
 
 I. THE POWEES OE CONGRESS. 
 
 § t. Congress has the power to raise a revenue, and provide for the 
 common defense and general welfare of the Union ; regulate commerce 
 with foreign nations, among the several States, and with the Indian 
 
CHAP. III.] CONGBESS. 59 
 
 tribes ; establish an uniform rule of naturalization, and laws of bank- 
 ruptcy, post-ofliees and post-roads, and promote tlie progress of science 
 and useful arts, by securin^iy rights to authors and inventors ; constitute 
 tribunals inferior to the Supreme Court; define and punish piracies and 
 felonies committed upon the high seas, and oflenses against the law of 
 nations; declare war; grant letters of marque and reprisal; raise and 
 maintain the army and navy ; organize and discipline the militia, and 
 provide for calling them forth to execute the laws of the United States, 
 suppress insurrections, and repel invasions; exercise exclusive legisla- 
 tion over the district established as the seat of the national government, 
 and places for the erection of forts, arsenals, and dock-yards ; and to 
 make all laws necessary and proper for carrying these powers into 
 execution. 
 
 § 8. But Congress is prohibited from passing any bill of attainder or 
 retroactive law; the writ of habeas corpus cannot be suspended, except 
 in cases of rebellion or invasion ; no direct tax can be laid, except 
 according to a census of the inhabitants; no duty can be laid on ex- 
 ports ; no money can be drawn from the treasury, unless appropriated 
 by law; no titles of nobility can be granted, nor can any public oflBcer, 
 without the consent of Congress, accept of any present or title from 
 any foreign prince or state. 
 
 § 9. The States are restrained from entering into any treaty or con- 
 federation ; granting letters of marque and reprisal; coining money; 
 emitting bills of credit ; making anything but gold and silver a tender 
 for debts, or passing any law impairing the obligation of contracts. 
 
 § 10. From this sumtnary of the powers of Congress, it is evident 
 that the framers of the Constitution intended to confer upon Congress 
 those powers only which were either necessary or expedient for the 
 transaction of its foreign relations, political and commercial ; the regu- 
 lation of commerce, and of the intercourse between the different States; 
 and, with regard to these objects, to provide for the general welfare; 
 to prohibit the exercise of certain powers which were conceived inexpe- 
 dient for these purposes ; and to restrain the States from the exercise of 
 powers which were considered to be inconsistent with the general good. 
 
 § 11. It is an interesting and important question to ascertain how 
 far the States are controlled by the Constitution of the Union. It seems 
 to be clearly settled that the State governments retain all those rights 
 of sovereignty which they had before the adoption of the Constitution, 
 except in three cases : 1st, where the Constitution, in express terms, 
 grants an exclusive authority to the Union ; 2d, where it grants an 
 authority to the Union, and prohibits the States from exercising a 
 like authority ; and 3d, where it grants an authority to the Union to 
 which a similar authority in the States would be absolutely contradic- 
 tory and repugnant. 
 
60 PUBLIC LA W. [book i. 
 
 § 12. As to the first two instances, there can be no doubt that the 
 jurisdiction of the States is taken away; but upon the question whether 
 the grant of a particular authority to the Union is inconsistent with the 
 exercise of the same power by the States, or whether their authority is 
 concurrent upon this subject, the Supreme Court has adopted this 
 doctrine : that a mere grant of a power to Congress does not imply 
 a prohibition to the States to exercise the same power, though the 
 States cannot enter upon the same ground and provide for the same 
 objects. 
 
 § 13. Thus, Congress has power to provide for organizing, arming, 
 and disciplining the militia. This does not prevent the States from 
 legislating upon the same subject, if Congress does not. But if it does 
 act on the subject, the States have no right to do anything further in 
 relation to it. For it is evident that if Congress acts upon the subject 
 at all, it is impliedly saying that any subject attempted to be regulated 
 by Congress shall be governed by no other rules than those which they 
 have adopted ; and whatever they have left undone upon the subject 
 should be left unrestrained. The same may be said of bankruptcy, 
 naturalization, and other subjects over which the authority of Congress 
 and that of the State legislatures are concurrent. This is a necessary 
 consequence of the supremacy of the general government, and it is 
 requisite to its preservation. The security against abuse and collision 
 between the general and State goverments, is, that the constituents 
 of the two governments are one and the same people ; it is not a 
 foreign power acting upon the State governments, but the same people 
 governing themselves through two different mediums and instrumen- 
 talities. 
 
 § 14. The government of the United States is unquestionably one of 
 limited powers, and can exercise no authority not delegated by the Con- 
 stitution. For this reason it has been supposed that the States retained 
 all the legislative powers which were not expressly taken away by the 
 Constitution of the United States, and that no constructive powers 
 could be exercised by the Federal government. But the contrary doc- 
 trine has been, so firmly established that it is not now considered an 
 open question. Though the government of the United States was one 
 of limited and specific powers, it was sovereign with regard to its 
 proper subjects, and had power "to make all laws necessary and proper 
 to carry them into execution." There is nothing in the Constitution 
 which excludes incidental or implied povpers. No constitution can con- 
 tain an accurate detail of all the subdivisions of powers, and of all the 
 means by which they might be carried into execution. Its nature re- 
 quires only that the great outlines should be marked, leaving all minor 
 subjects to be deduced from the nature of those objects. Necensary, 
 in the Constitution, does not impart an absolute necessity so strong that 
 
«HAP. in.] CONGBESS. 6] 
 
 one thing cannot exist without the other. It stands for any means cal- 
 culated to produce the end, and admits of all degrees of comparison. 
 The word is used in various senses, and, in its construction, the subject, 
 the context, and the intention are all to be taken into view. The powers 
 of the government were given for the welfare of the nation. They were 
 intended to endure for ages to come, and to be adapted to the various 
 crises of human affairs. If the end be legitimate, and within the scope 
 of the Constitution, all means which are appropriate and plainly adapted 
 to this end, and which are not prohibited, are lawful. Therefore, a 
 banking incorporation, with a view to aid the federal operation of the 
 government ; and appropriations for the construction of roads of national 
 importance, and for the improvement of rivers, for the purpose of pro- 
 moting commerce among the several States, have been considered as 
 among the implied powers of Congress, within the intention of the 
 Constitution. 
 
 II. THE METHOD OE ENACTING- LAWS IN CONGEESS. 
 
 § 15. The mode of proceedings in enacting laws is regulated partly 
 by rules adopted by each house, and partly by the customary laws of 
 parliamentary proceedings. A draft of the purposed law is introduced, 
 called a bill, in which each paragraph, or distinct subject-matter of the 
 bill, is divided into sections. This is done upon motion for leave after 
 one day's previous motion. Every bill must have three readings on 
 different days previous to its being passed ; and no bill can be com- 
 mitted or amended until it has been twice read. In the House of Repre- 
 sentatives, bills, after being twice read, are committed to a committee 
 of the whole house, when the Speaker leaves the chair and takes part in 
 the debate, as an ordinary member, and a chairman is appointed by him 
 to preside in his stead. 
 
 § 16. In each house standing committees are appointed at the com- 
 mencement of every session, to continue during the session, each of 
 whom have in charge some particular subject, such as " foreign affairs," 
 "judiciary," "ways and means," etc., and to whom is referred all busi- 
 ness that may occur relating to their particular departments, to prepare 
 it for the consideration of the house, and frame and report bills if neces- 
 sary. 
 
 § 17. When a bill has passed one house, it is transmitted to the other, 
 and there it goes through a similar process ; though in the Senate there 
 is less formality. If it be altered or amended in the house to which it 
 is transmitted, it is then returned to the house in which it originated, 
 for its concurrence in the amendment; and if the two houses do not 
 agree, they appoint a committee in each house to confer together on 
 the subject ; who report whatever they agree or disagree upon to their 
 
62 PUBLIC LA W. [book i. 
 
 respective houses. If both houses persist in their opinion, the bill is 
 lost ; if they agree, it is passed by both houses, and is then transmitted 
 to the President of the United States for his approval. 
 
 §18. These rules and checks in the forms of doing Congressional 
 busi-ncss are prudently intended to guard against surprise or imposi- 
 tion, and admirably protect the rights of the minority from being 
 crushed, unheard and unheeded, by the force of the majority. This 
 precision and uniformity in the manner of doing the business give 
 ample time and opportunity for investigation and consideration. 
 
 § 19. The control that the President has over the Acts of Congress, 
 by means of withholding his approval, which is called his veto (from 
 the Latin word veto, I forbid), is of a very questionable utility, and 
 was adopted in our Constitution after much discussion and great oppo- 
 sition. It was intended partly as an additional security against the 
 enactment of improper laws, through haste or inadvertency, but prin- 
 cipally as a defense to the executive against the encroachment of the 
 legislature. But it tends to bring those matters thus questioned more 
 fully before Congress and the people ; and in case the objection of the 
 President is not well founded, it would very probably be able to find a 
 two-thirds vote of Congress to carry it through over the President's 
 veto. There is, however, a well-founded apprehension that sometimes 
 very questionable means may be carried by party drill and influence 
 against sound and well-considered veto objections. 
 
 § 20. Every bill which has passed Congress, before it becomes a law 
 must be presented to the President: if he approves, he signs it; if he 
 does not, it is returned, with his objections, to the house in which it 
 originated, and that house enters the objections at large on its journal, 
 and proceeds to reconsider the bill. If, after such reconsideration, two- 
 thirds of that house agree to pass the bill, it is sent, together with the 
 objections, to the other house, by which it is likewise reconsidered, and, 
 if approved by two-thirds of that house, becomes a law. If any bill be 
 not returned by the President within ten days (Sundays excepted), the 
 same becomes a law equally as if ho had signed it ; unless Congress, 
 by adjournment in the mean time, prevents its return, and then it does 
 not become a law. 
 
 §21. Acts of Congress thus passed are called statutes, positive or 
 written laws of the land ; lege8 svriptse. They are either general or 
 special. A general or public statute is one which concerns the whole 
 community, and of which courts are bound to take judicial notice with- 
 out being particularly pleaded; but special, either private or local 
 statutes, concern only pi-ivate individuals ; and in order to take ad- 
 vantage of them the individual interested must plead them specially. 
 
 § 22. A statute takes effect from the date of its final passage, unless 
 there is some date in the statute itself stated as its commencement. A law 
 
CHAP. III.] CONGRESS. 
 
 63 
 
 therefore may be in force and affect one's rights before he is aware of 
 its existence. To prevent inconvenience arising from any retrospective 
 effects, statutes generally contain a provision for their taking effect on 
 some future day. Courts have in some instances decided, in order to 
 prevent manifest inju.stice and hardship, the penal statutes did not 
 operate unless there has been sufficient time to enable the party with 
 reasonable diligence to ascertain the existence of the law. 
 
 § 23. Where there is a written constitution, designating the powers 
 and duties of the legislative as well as of the other departments of the 
 government, an act of the legislature clearly against the Constitution 
 must be void. The courts of justice have a right, and are in duty 
 bound, to bring every law to the test of the Constitution, as the para- 
 mount or supreme law, to which all inferior or derivative powers 
 and regulations must conform. The judicial department is the proper 
 tribunal in the government to determine whether a statute be constitu- 
 tional or not. This is as much a judicial act, and requires the exercise 
 of the same legal direction, as the interpretation or construction of a 
 law. To contend otherwise would be making the law superior to the 
 Constitution, debar a person in a court of justice from appealing to 
 his constitutional rights in opposition to a hasty and inconsiderate 
 statute, and prevent the judges from looking to the Constitution and 
 regarding it as the paramount law of the land. It would render the 
 legislative superior to every other department of the government, and 
 the Constitution itself, and competent to control, according to its own 
 will and pleasure, the whole fabric of the government, and the funda^ 
 mental laws on which it rests. 
 
 § 24. The Constitution provides against ex post facto laws, laws im- 
 pairing the validity of contracts, or taking private property for public 
 use without compensation. These, and similar constitutional provisions 
 in relation to the validity of statutes, have been frequently examined in 
 courts of justice. The phrase " ex post facto law" has been held to be 
 a technical expression, applicable only to criminal cases. In this sense 
 it means every law that declares an act criminal which was innocent 
 when done, or which renders an act punishable in a manner different 
 from that to which it was subject when committed. The States can 
 pass no " law impairing the obligations of contract ;" and, under this 
 prohibition, it has been held that an agreement between two States, a 
 charter of incorporation, and a law by which the title to property has 
 been acquired, are contracts equally protected from violation or change, 
 as ordinary contracts between individuals. Although this provision of 
 the Constitution is not expressly applicable to the United States itself, 
 yet in principle it is; for it is everywhere admitted that a retroactive 
 statute, affecting contract or property, would be against every sound 
 principle. But remedial statutes, retrospective in their nature, are not 
 
64 PUBLIC LAW. [book I. 
 
 objectionaljle, when they do not disturb absolute rights or vested prop- 
 erty, but establish a right which is just and reasonable, and conducive 
 to the general welfare, though it might operate in some degree upon 
 existing rights: as a statute to confirm defective marriages or convey- 
 ance, or to enable representatives to sell property to pay the debts of 
 their intestate. 
 
 § 25. When a statute is in force, and found to be constitutional, still 
 certain rules are to be observed in construing it and ascertaining its 
 true meaning : as, 
 
 1. Consider the ancient law, the mischief, the remedy, and the reason 
 of it, and then make such a construction as will repress the mischief and 
 advance the remedy. 
 
 2. The intention of the lawgiver is to be deduced from a view of the 
 whole and of every part of a statute, taken and compared together ; and 
 when the real intention is accurately ascertained, it must prevail over 
 literal sense of terms. i 
 
 3. The words of a statute are to be taken in their natural and ordi- 
 nary signification, and technical words are to be used in their technical 
 sense. 
 
 4. A saving clause in a statute is to be rejected when it is directly re- 
 pugnant to the purview or body of the act, and could not stand without 
 rendering the act inconsistent and destructive of itself. 
 
 5. Several acts in pari materia, and relating to the same subject, are 
 to be taken together and compared in the construction of them, because 
 they are considered as having one object in view, and acting as one 
 system. 
 
 6. Contemporaneous construction of statutes by members of the pro- 
 fession, and practice under them, is deemed of importance. Gontempo- 
 ranius expositio est fortissima in lege. The law in some cases pei'- 
 mits a common error to pass for right, where to correct it would produce 
 a common mischief.' 
 
 1. Statutes that are remedial, and not penal, are to receive an equi- 
 table interpretation, by which the letter of the act may be either so 
 restrained or enlarged as will more effectually meet the beneficial ends 
 in view, and prevent a failure of the remedy. 
 
 8. Penal statutes are to be construed strictly, for the law will not 
 permit a person to suffer a greater penalty than the strict letter of the 
 law will warrant. 
 
 9. The parts of a statute must be construed so that the whole may, 
 if possible, stand.'' 
 
 10. AVhere the common and statute law differ, the common law must 
 give way to a new one. 
 
 1 Broom's Legal Mnxims, 182. = 1 Bl. Com,, Introduction, J 8. 
 
CHAP. IT.] THE EXECUTIVE DEPABTMENT8. 65 
 
 11. If one statute be repealed by another, and the repealing statute 
 be itself afterward repealed, the first repealed statute is thereby re- 
 vived.' 
 
 12. Statutes impossible to be performed are void; absurd conse- 
 quences arising collaterally from statutes are also void. 
 
 CHAPTER IV. 
 
 THE EXECTJTlVi! DEPARTMENTS OF THE UNITED STATES. 
 
 § 1. The Constitution of the United States has provided that the 
 executive power shall be vested in a President. In this chapter will be 
 considered, — 1, the election of the President ; 2, the qualifications of the 
 President ; 3, his powers and duties ; 4, the difi"erent departments of 
 the executive power. 
 
 § 2. I. The term of service both of the President and of the Vice- 
 President is four years. There are no constitutional restraints upon a re- 
 election, but as yet no President has served more than two terms. It is, 
 however, to be lamented that there was not a restriction to one term, 
 as that would remove all temptation to corruption and the use of execu- 
 tive patronage for the purpose of securing a re-election. The excite- 
 ment that always exists upon the subject of the presidential election, and 
 the absence of a tribunal of sufficient force to command respect and suffi- 
 cient strength of character to give confidence, to which might be referred 
 contested questions in elections, render the stability of our institutions 
 more precarious in this crisis than in any other. Yet should the 
 people of the Union continue to elect their chief magistrate with the 
 same discretion, moderation, and integrity,'' they will undoubtedly stamp 
 the highest value on their national character, and recommend their re- 
 publican institutions, if not to the imitation, at least to the esteem and 
 admiration, of the more enlightened part of mankind. 
 
 § 3. The election of the President is not confided directly to the whole 
 body of the people,- but to a small body of electors, appointed in each 
 State under the direction of the legislature, equal in number to the whole 
 number of Senators and Representatives to which the State may be en- 
 titled in Congress.* These electors are usually elected by the people of 
 each State. To prevent any improper influence from being exerted by 
 persons in office, it is provided that no Senator or Representative, or 
 
 ' This consoquenoe is prevented by statutes in Ohio. 
 
 2 1 Kent's Com. 251. ' Con., Art. ii. ^ 1. 
 
 5 
 
66 PUBLIC LAW. [book i. 
 
 person holdiDg any office of trust or profit under the United States 
 shall be appointed an elector. No other restriction or qualification is 
 mentioned in the Constitution. 
 
 § 4. The electors are to meet in their respectiFe States, at the time 
 and place appointed by law, and vote for a President and a Vice-Presi- 
 dent, by a separate and distinct ballot, one of whom shall not be an in- 
 habitant of the same State with themselves. Distinct lists of all per- 
 sons voted for as President and Vice-President, and the number of 
 votes for each, are to be made, signed and certified by the electors, 
 and transmitted, sealed up, to the seat of the general government, 
 directed to the President of the Senate. At the time appointed the 
 President of the Senate, in the presence of the Senate and House of 
 Representatives, opens all the certificates, and the votes are counted. 
 The person having the greatest number of votes for President, if such 
 number be a majority of the whole, is the President.' 
 
 § 5. If no person have such majority, then from the three highest on 
 the list the House of Representatives immediately chooses, by ballot, 
 the President. In this choice the votes are taken by States, the repre- 
 sentation from each State having one vote. A quorum consists of a mem- 
 ber or members from two-thirds of the States ; and a majority of all the 
 States are necessary to a choice. Whenever a choice devolves upon the 
 House of Representatives, if they do not choose a President before the 
 fourth Monday of March, then the Vice-President acts as President, 
 as in the case of death or constitutional disability of the President. 
 
 § 6. The person having the greatest number of votes for that office 
 is Vice-President, if such number be a majority of the whole number 
 of electors ; but if no person have such a majority, then from the two 
 highest numbers on the list the Senate shall choose the Vice-President. 
 For this purpose a quorum consists of the whole number of Senators, 
 and a majority of the whole is necessary to a choice. No person con- 
 stitutionally ineligible to the oBice of President is eligible to that of 
 Vice-President. 
 
 § T. II. The qualifications required for President of the United States 
 are : that he be a natural born citizen,, or a citizen at the time of the 
 adoption of the Constitution ; that he shall have attained the age of 
 thirty-five years, and been fourteen years a resident within the United 
 States. Before entering on the execution of his office he is to take an 
 oath or affirmation that he will execute faithfully the office of President 
 of the United States, and will, to the best of his ability, preserve, pro- 
 tect, and defend the Constitution of the United States. These provi- 
 sions are intended to guard against that foreign influence which in 
 other countries has so fatally marred their peace and distracted their 
 
 • Amend. Const., Art. xii. § 1. 
 
CHAP. IT.] THE EXECUTIVE DEPARTMENTS. 67 
 
 councils, and to secure for the guidance of the administration a person 
 who is attached to the country by those ties which are natural to " his 
 own native land" and his home. His oath adds the sanction of religion 
 to that of natural and moral duty. 
 
 § 8. The support of the President is secured by the Constitution, 
 which declares that he shall, at stated times, receive for his services a 
 compensation, which shall neither be increased nor diminished during 
 the period for which he has been elected ; and wilhin that period he 
 shall not receive any other emoluments from the United States or any 
 of them. This is intended to preserve the dignity and the independ- 
 ence of the executive, and to place him beyond the influence of Con- 
 gress and all hopes of their favor. A control over a man's living is, in 
 most cases, a control over his actions. It would therefore be in vain to 
 look for independence and energy in the President if he were dependent 
 upon Congress for his support. 
 
 § 9. In case of the removal of the President from office, or of his 
 death, resignation, or inability to discharge the powers and duties of 
 the office, the same shall devolve upon the Vice-President ; and in cases 
 where both of those offices are thus vacated. Congress may by law de- 
 clare what officer shall thus act as President during the vacancy. Con- 
 gress has provided that in such case the President of the Senate pro 
 tempore, and in case there should be no President of the Senate, then 
 the Speaker of the House of Representatives, shall act as President 
 until the disability be removed or a President elected.' If both of these 
 last-named offices are vacant, the Secretary of State is to notify the 
 executive of each State of the fact, and also to give public notice that 
 electors will be appointed in each State to elect a President and Vice- 
 President, unless the regular election shall be within so short a period 
 as to render it unnecessary. Congress has also provided that the evi- 
 dence of refusal to accept, or of a resignation of, the office of President 
 or Vice-President, shall be a declaration in writing, filed in the office of 
 Secretary of State. 
 
 § 10. III. The due administration of the government requires that the 
 President should be invested with very considerable powers. These are 
 enumerated in general terms in the Constitution. He is the commander- 
 in-chief of the army and navy of the United States, and of the militia of 
 the several States, when called into actual service of the United States. 
 It is not expected that he would take the command in person, for that 
 would be seldom necessary or proper, and in no instance in our history 
 has this been done; but he is to have the direction of all the military 
 force of the Union. This is requisite in order to enable him to perform 
 
 » Act March 1, 1792. 
 
68 PUBLIC LA W. [book i. 
 
 his duty in repelling invasion, suppressing insurrection, and enforcing 
 obedience to the laws. 
 
 § 11. The President has power to grant reprieves and pardons for 
 offenses against the United States, except in cases of impeachment. It 
 has always been found proper, in all organized governments, to vest 
 this power somewhere. Blackstone has raised the objection to a repub- 
 lican government, that this power could not be exercised by it. Yet in 
 the United States this power is exercised in the person of the executive, 
 with as much propriety, wisdom, and discretion as in any other govern- 
 ment on earth. It often becomes necessary to exercise this power when, 
 from the nature of human testimony, a man may be convicted of a crime 
 of which he is afterward found innocent ; or there may be alleviating 
 circumstances which will render it highly proper to pardon an indi- 
 vidual who has been justly convicted; or it may be good policy, where 
 many are engaged in crime, to recall the offenders by mercy, rather than 
 to drive them to despair by strict justice. This power can be exercised 
 in these instances to greater advantage by a single individual of sense 
 and prudence than by a numerous body. And in case of public emer- 
 gency, such as treason or rebellion, the time and manner of offering 
 pardon may be a matter of great delicacy, and not admit of the delay or 
 publicity incident to the act of the legislature or of a numerous body. 
 The power of pardon does not extend to cases of impeachment, because 
 that is a peculiar proceeding which does not require it, and the President 
 ought not to have the power of screening public officers, his favorites or 
 dependents, or with whom he may have been engaged in dangerous or 
 corrupt practices against the public welfare. 
 
 § 12. The President has power, by and with the advice and consent 
 of the Senate, to make treaties, provided two-thirds of the Senators 
 present concur. Treaties are declared by the Constitution to be the 
 supreme law of the land ; they are not, however, strictly speaking, laws, 
 but contracts with foreign nations, deriving the force of law from the 
 obligations of good faith. The President is the constitutional organ of 
 communication with foreign nations, and all intercourse with them is 
 best conducted through this channel. In the formation of treaties, the 
 President gives the instructions and carries on the negotiations ; but so 
 important a matter still requires the ratification of the Senate to give it 
 validity, and, from abundant caution, a larger majority is required than 
 in legislation. The character and dignity of the Senate, their number 
 and acquaintance with public affairs, render it peculiarly fit for this 
 high trust. A treaty, when duly ratified, being the supreme law of the 
 land, is as much obligatory upon Congress as upon any other branch 
 of the government, or upon the people at large, so long as it continues 
 in force and unrepealed, and the inevitable consequence would be that 
 such treaty would repeal any existing law contrary to it. A refusal in 
 
CHAP. iv.J THE EXECUTIVE DEPARTMENTS. 69 
 
 any part of the government to carry into effect the stipalations of a 
 treaty, is a violation of law and a breach of public faith, and in the for- 
 eign power would be a just cause of complaint, and naturally lead to war. 
 
 § 13. The President is the eBScient power in the appointment of the 
 officers of the government. He is to nominate, and, with the advice 
 and consent of the Senate,' to appoint ambassadors or public ministers 
 and consuls, the judges of the Supreme Court, and all other olBcers 
 whose appointment is not otherwise provided for in the Constitution ; 
 but Congress may vest the appointment of inferior officers in the Presi- 
 dent alone, in the courts of law, or in the heads of departments. This 
 power is confided with great propriety in the President, as he is bound 
 to see that the laws are faithfully executed, and is generally charged 
 with the powers and responsibilities of the executive department. The 
 responsibility of the appointment rests principally with the President, 
 as the authority of the Senate is confined to the mere approval or rejec- 
 tion of the President's nomination.' Without imposing any mischiev- 
 ous restraint, the revision and consent of so respectable a body of men 
 will add inducements to a discreet and disinterested conduct in the Pres- 
 ident, and be a check upon his own misinformation and error. The au- 
 thor of " The Federalist" supposed that this co-operation of the Senate 
 would give stability to the administration of the government, as it was 
 then thought it would require the consent of the Senate to remove as 
 well as to appoint. Unfortunately, however, this is not the construction 
 put upon this part of the Constitution. During the administration of 
 Washington the right of the President to remove from office, without 
 the concurrence of the Senate, was recognized by Congress, and this 
 construction has been adopted in practice ever since.' 
 
 § 14. The remaining duties of the President consist in giving infor- 
 mation to Congress of the state of the Union, and in recommending to 
 their consideration such measures as he shall judge necessary or expe- 
 dient. He is to convene both houses of Congress, or either of them, 
 on extraordinary occasions, and he may adjourn them in cases of dis- 
 agreement. He is to supply occasional vacancies that happen during 
 the recess of tlie Senate, by granting commissions to all the officers of 
 the United States, and to take care that the laws be faithfully executed. 
 The propriety and simplicity of these duties speak for themselves. The 
 power of receiving foreign ministers includes in it the power to dismiss 
 them, since he alone is the orgau of communication with them, the 
 representative of the people in all diplomatic negotiations, accountable 
 fijr the due execution of the law, and for the qualifications and conduct 
 of foreign agents. 
 
 1 Const., Art. ii. | 2. "1 Kent's Com. 288. 
 
 3 Marshall's Life of Washington. 
 
70 PUBLIG LAW. [book I. 
 
 § 15. In addition to the restraints imposed by a sense of duty, his 
 official oath, the force of public opinion, and the transitory tenure of his 
 office, the President, as well as all other civil officers of the United States, 
 may be impeached by the House of Representatives for treason, bribery, 
 and other high crimes and misdemeanors, and, upon conviction by a 
 trial before the Senate, removed from office.' 
 
 § 16. The executive government of the United States, for the purpose 
 of facilitating the transaction of business, is divided into a number of 
 great departments, as — 1. The Department of State, to which is in- 
 trusted the diplomatic correspondence of the government, foreign 
 affair^, and the civil affairs immediately connected with the interest of 
 the Union. 2. The Department of the Treasury, toi which is confided 
 the fiscal concerns of the government. 3. The Department of War, 
 which superintends and directs all the military affairs, under the orders 
 of the President, who is commander-in-chief. 4. The Department of 
 the Navy, which has the same relation to our naval affairs that the War 
 Department has to the military. ■ 5. The Department of the Interior, 
 to supervise our internal and domestic affairs, very much in the same 
 manner as the Department of State does tho.se which are foreign. To 
 each of these departments there is severally appointed a Secretary, who 
 has the control and management of his respective department, subject 
 to the direction of the President. 6. The Department of the Post- 
 OlBce, over which the Postmaster-General presides, whose duties are to 
 superintend and direct the national affairs connected with the post- 
 office, at home and abroad. These heads of departments, together with 
 the Attorney-General, — whose duties are to give his advice upon ques- 
 tions of law when required by the President or by either of the heads 
 of the departments, and to prosecute and conduct all suits in the Su- 
 preme Court in which the United States shall be concerned, — are the 
 great officers of the executive department of the government, under the 
 immediate control and direction of the President. They also form what 
 is called the President's Cabinet, and are regarded as constituting his 
 council and constitutional advisers. The Constitution, through abun- 
 dant caution, has provided that the President may require the written 
 opinion of the principal officers of any of the executive departments 
 upon any subject relating to the duties of their respective offices. There 
 arc many and powerful reasons, as well as propriety, that these officers, 
 who form the President's Cabinet, should be men of his choice, in whom 
 he would have confidence ; and this concurs with the usual practice of 
 Congress. 
 
 ' Const., Art. ii. I 2. 
 
CHAP, v.] THE JUDICIABY DEPARTMENT. 71 
 
 CHAPTER V. 
 
 THE JUDICIARY DEPARTMENT OP THE UNITED STATES. 
 
 § 1. The judiciary, like the other departments of the United States 
 government, is confined and limited in its jurisdiction to the affairs 
 and interests of the Union. The Constitution, in ascertaining to what 
 objects the judicial powers of the Union shall extend, provides for a 
 Supreme Court, and such inferior courts as Congress may establish. 
 In taking a survey of the judiciary establishment of the United States, 
 it will be convenient to considei- — 1, the judicial powers of the United 
 States ; 2, the Supreme Court of the United States ; 3, the inferior 
 courts; 4, the officers of these courts; and 5, adjudications in relation 
 to the judicial powers of the United States. 
 
 § 2. I. The judicial authority of every government must be coexten- 
 sive with its legislative powers, or it will be incapable of carrying its laws 
 into effect. To have restrained the federal judiciary within narrower 
 limits would have rendered the federal government dependent upon 
 the States for the execution of its laws, which ivas one of the principal 
 evils under the old Confederation intended to be remedied by the new 
 Constitution. The judicial powers granted to the Union are those 
 which appropriately belong to the general government, either from 
 being matters of general interest or such as could not properly be left 
 to the States, or from their relating to foreign affairs and international 
 law, and should be wholly intrusted to the general government, and 
 therefore within the jurisdiction of its own judiciary. 
 
 § 3. The judicial power extends to all eases in law and equity aris- 
 ing under the Constitution, the laws, and the treaties of the Union ; to 
 all cases affecting ambassadors, other public ministers, and consuls; to 
 all cases of admiralty and mnritinie jurisdiction ; to controversies to 
 which the United States shall be a party; to controversies between 
 two or more States ; to controversies between a State, where the plain- 
 tiff is a citizen of another State, or a foreign citizen or subject ; to con- 
 troversies between citizens of different States and citizens of the same 
 State, claiming lands under grants of different States; between a 
 State, or citizens thereof, and foreign States ; and between citizens and 
 foreigners.' 
 
 § 4. The Constitution, having declared that the judicial power shall 
 
 1 Const., Art. iii. § 2; Amd. Const., Art. xi. 
 
72 PUBLIC LAW. [book i. 
 
 extend to all cases arising under the Constitution, the laws of the 
 United States and treaties made under it, gives to the judiciary of the 
 Union the authority, in the investigation of any case before them which 
 requires it, to inquire how far any law of the United States, the Con- 
 stitution or law of any State, may be consistent with the Constitution 
 or any treaty of the United States (the supreme law of the land) ; and in 
 case there is a plain contradiction or inconsistency, to declare the former 
 void. This is absolutely necessary for the preservation of the Union ; 
 for otherwise the government would become nothing but a maze of con- 
 flicting laws and jarring interests. This is not setting the judiciary 
 above law and the other departments of the government, but it is 
 merely exercising that power which the people have delegated to a 
 co-ordinate branch of the government, necessary for the preservation 
 of peace and harmony and the due administration of justice. 
 
 § 5. II. The Supreme Court was instituted by the Constitution, which 
 ordained that the judicial power of the United States should be vested 
 in one Supreme Court, and in such inferior courts as Congress might 
 from time to time ordain and establish ; and that in all cases affecting 
 ambassadors, other public ministers, and consuls, and those in which a 
 State shall be a party, the Supreme Court shall have original jurisdic- 
 tion. In all the other cases of jurisdiction given to the United States, 
 the Supreme Court shall have appellate jurisdiction, both as to law and 
 fact, with such exceptions, and under such restrictions, as Congress 
 shall make. The judges, both of the supreme and inferior courts, are 
 to hold their offices during good behavior ; and at stated times shall 
 receive for their services a compensation, which shall not be diminished 
 during their continuance in office. 
 
 § 6. The Constitution provides only in general terras for a supreme 
 court, with certain original and appellate powers, leaving, it for Con- 
 gress to provide for its particular organization and the regulation of 
 its powers. This Congress has done by means of numerous statutes.^ 
 It now consists of a chief justice and eight associate justices, any six 
 of whom form a quorum ; and holds one term annually, at the seat of 
 government, commencing on the second Monday in January. 
 
 § 7. The Supreme Courf^ has — 1, original and exclusive jurisdiction 
 over all controversies of a civil nature where a State is a party (except 
 against private citizens, natives or aliens); and all the jurisdiction a 
 court of justice can have, consistent with the laws of nations, agaiyist am- 
 bassadors or other public ministers, or their domestics ; 2, original, 
 but not exclusive, jurisdiction of all suits brought by ambassadors or 
 other public ministers, or in which a consul or vice-consul shall be a 
 party ; or in suits of a State against one or more of its citizens, or 
 
 1 1 Kent's Com. 298. = Sors;. Const. Law. 
 
CHAP, v.] THE JUDICIARY DEPARTMENT. 73 
 
 against citizens of other States, or aliens ; and 3, appellate jurisdiction 
 in the following cases: 1st, by writs of error to the circuit courts of 
 the United States upon final judgments and decrees; in civil actions 
 and suits in equity in cases where the matter in dispute exceeds two 
 thousand dollars, which may be revised and reversed or afSrmed by 
 the Supreme Court ; 2d, by appeal from the circuit courts from final 
 judgments and decrees in cases of admiralty and maritime jurisdiction, 
 and of prize or no prize, where the matter in dispute exceeds two 
 thousand dollars; and reviewed in Supreme Court ; 3d, by writs of 
 error to the highest court of law or equity of a State, upon a final 
 judgment or decree in any suit where a treaty, or statute of, or authority 
 exercised under the United States, was drawn in question in the State 
 court, and the decision was against its validity; or where the validity 
 of any State authority was drawn in question, on the ground of its 
 being repugnant to the Constitution, treaties, or laws of the United 
 States, and the decision was in favor of its validity; or where the con- 
 struction of any clause of the Constitution, treaty, or statute of, or 
 commission held under, the United States, was drawn in question, and 
 the decision was against the claim set up under the authority of the 
 Union. 
 
 § 8. Without an ultimate resort to the Supreme Court of the Union 
 from the decision of the State courts, in cases of conflicting claims 
 under the laws of the State and those of the United States, the Union 
 itself could not be preserved, but would be, in a great manner, depend- 
 ent upon the forbearance of the State legislature, which might enact 
 laws destructive of all its powers, without any control except its own 
 will, as was the case under the Confederation. This difficulty has 
 been guarded against by the Constitution and laws of the United 
 States, as has been seen in the last section. But the United States 
 coui"ts are not to interfere in such questions when they arise in the 
 State courts, until they have been carried up to the highest court of the 
 State, and not then unless the decision be adverse to the claim set up 
 under the laws of the Union. 
 
 § 9. III. The inferior courts established by Congress are — 1st, cir- 
 cuit courts, and 2d, district courts. 
 
 1st. The circuit courts are established in each district of the nine' 
 great circuits into which the United States is divided. The districts 
 of the United States are usually composed of one State ; in some in- 
 stances States are divided into two districts, and each circuit is composed 
 of from two to four districts. In each district of the circuits two cir- 
 cuit courts are annually held, by one of the judges of the Supreme Court 
 and the judge of the district. 
 
 ' By the act of Congress of 1869. See July No. of Amer. Law Review, 767. 
 
74 PUBLIC LA W. [book i. 
 
 § 10. The circuit courts thus organized are rested with origiaal cog- 
 n'zancc, concurrent with the courts of the several States, of all suits of 
 a civil nature at common law or in equity, where the matter in dispute 
 exceeds five hundred dollars, and in which the United States is plaintiff 
 or an alien is a party, or where the suit is between a citizen of the State 
 in which the suit is brought and a citizen of another State. They have 
 exclusive cognizance (except in some cases where the district court has 
 concurrent jurisdiction) of all the higher crimes and offenses cognizable 
 under the authority of the IJnited States. Tliey have also appellate 
 jurisdiction from all final decrees and judgments in the district courts 
 where the matter in dispute exceeds fify dollars; by appeal on final 
 decrees in cases of admiralty and maritime jurisdiction ; and by writ of 
 error on final judgments in civil actions. Where a suit is commenced in 
 a State court against an alien, or by a citizen of the State in which the 
 suit is brought ngainst a citizen of another State, or against a citizen of 
 the same State, claiming lands under a grant from another State, and the 
 matter in dispute exceeds five hundred dollars, the defendant, on giving 
 security, may remove the cause to the next circuit court.' The circuit 
 courts have also original cognizance in law and equity suits arising 
 under any law of the United States relative to copyrights and inven- 
 tions, and to protect such rights by injunction. As to the jurisdiction 
 of the circuit courts, it is a settled doctrine that they are courts of 
 limited, though not of inferior, jurisdiction, and that it is necessary, 
 therefore, that the facts or circumstances which give jurisdiction should 
 appear, either expressly or by necessary legal implication, upon the 
 record of the court. 
 
 § 11. 2d. The district courts have, exclusive of the State courts, 
 cognizance of all minor crimes and offenses cognizable under the 
 authority of the United States, committed within their district or upon 
 the high seas ; of all suits against consuls or vice-consuls, except for 
 the higher offenses; in ca.'ies of captures made within the waters of the 
 United States ; and to repeal patents unduly obtained. They have also 
 exclusive original cognizance of all civil causes of admiralty and mari- 
 time jurisdiction ; of all seizures, penalties, and forfeitures under impost, 
 navi;j,ation, or trade laws of the United States. They have also cogni- 
 zance, concurrent with the circuit and State courts, of causes where 
 an iilien sues for a tort committed in violation of the laws of nations 
 or of a treaty of the United States, or where the United States is 
 plaintiff, and the matter in dispute amounts to one hundred dollars. 
 
 § 11 The district courts and the judges thereof, in certain cases, 
 have the same power as the circuit courts to grant ^VTits of injunction, 
 as is exercised by the judges of the Supreme Court, in their absence. 
 
 1 See Ludlow vs. Kidd, 3 0. E. 48; Piqua Bank vs. Knoup, 6 0. S. E. 342. 
 
CHAP, v.] THE JUDICIARY DEPARTM^ENT. 75 
 
 § 13. To prevent incorivenioneo arising from difference of opinion 
 between the circuit and the district judj^o, when holding a circuit court, 
 the law iirovides that in all cases of appeal or error from the district to 
 the circuit courts, judgment is to be rendered in conformity to the 
 opinion of the judge of the Supreme Court presiding in the circuit court.' 
 And in all other oases of such difference of opinion the point may be 
 certified into the Supreme Court for its decision ; but in no case shall 
 imprisonment be allowed, or punishment inflicted, where the judges of 
 the circuit court are divided in opinion on the question. 
 
 § 14. The jurisdiction and powers of these courts depend principally 
 upon the legislative enactments of Congress, and almost entirely upon 
 the Judiciary Act of 1789. The wisdom and propriety of these enact- 
 ments have been confirmed by the operations of experience and time. 
 The machinery put into operation by them not only answers the expec- 
 tation of theory, but harmonizes well in practice, and daily confirms 
 their utility and value. In order that they should harmonize, as far as 
 practicable, with the State courts, the federal courts adopt the law, 
 practice, and course of procedure of the courts of the several States 
 in which they are situated, and follow their decisions and construction 
 of State laws, unless they come in conflict with the Constitution or 
 laws of the United States. 
 
 § 1.5. IV. The principal oflScers of the federal courts are attorneys 
 and counselors, clerks and marshals. 
 
 1st. Attorney's and counselors are admitted by the several courts to 
 aid the parties in the pleading and conduct of their causes, where it is 
 not convenient for them to attend to them personally. In the Supreme 
 Court of the United States the two degrees of attorney and counsel are 
 kept distinct, and no person is permitted to practice in the two capa- 
 cities. But in all other courts of the United States persons are admitted 
 to the two degrees, and are so permitted to practice. The business and 
 interests of the United States in their courts are attended to and con- 
 ducted in the Supreme Court by the attorney-general, and in the other 
 courts an attorney is appointed by the President in each judicial district. 
 
 § IG. 2d. Clerks are appointed by the several courts, except that the 
 clerk of the district court is ex officio clerk of the circuit court in his 
 district. They have the custody of the rules and records, and are 
 to sign and read all proceedings and to record the proceedings and 
 judgments of the court. 
 
 § 11. 3d. The marshal is analogous to the sheriff, and is the minis- 
 terial officer of the United States courts. He is appointed by the Presi- 
 dent, as other officers, for each district, for the term of four years. It 
 is the duty of the marshal to attend the district and circuit courts, 
 
 1 1 Kent's Com. 305. 
 
76 PUBLIC LAW. [book I. 
 
 to execute all the precepts issued by these courts, and to command 
 all requisite assistance in the execution of his duty. The 'appoint- 
 ment of deputies is a power incident to his office, and the marshal is 
 responsible civiliter for their conduct. 
 
 § 18. V. Thus far we have considered the positive law in relation 
 to the organization and powers of the judiciary of the United States; 
 we will now consider the adjudications on the same subject. The United 
 States government, being a delegation of specific powers, can exercise 
 no authority excepting those given by the Constitution, either expressly 
 or by necessary implication. The powers not granted remain with the 
 people or the governments of the several States. To ascertain what pre- 
 cise powers are granted and what are not, so as to give a true construction 
 to the Constitution, often becomes an abstruse and difficult matter. This, 
 where there is no collision, is to be determined by the declared sense and 
 practice of the respective governments ; and in other eases where the 
 question is of a judicial nature, it is to be ascertained by a decision of 
 the Supreme Court of the United States. The people of the United 
 States have declared the Constitution to be the supreme law of the 
 land, and it is entitled to universal and implicit obedience. Every act 
 of Congress, every act of the State legislatures, and every part of the 
 • Constitution of any State, which is repugnant to the Constitution of 
 the United States, is necessarily void. This is a clear and settled prin- 
 ciple of constitutional jurisprudence. The judicial powers of the Union 
 are declared to " extend to all cases in law and equity arising under the 
 Constitution," and to the judiciary it belongs, whenever a question is 
 judicially before them, to determine what the law is. 
 
 § 19. The following points have been decided by the Supreme Court: 
 1. The original jurisdiction of the Supreme Court is very limited, and 
 it has been decided that this original jurisdiction cannot be enlarged, 
 nor the Supreme Court bo vested, even by Congress, with any original 
 jurisdiction in other cases than those described in the Constitution. 
 
 § 20. 2. It is in its appellate jurisdiction that the Supreme Court is 
 clothed with most of its power and dignity, and rendered an object of 
 constant attention and solicitude on the part of the people and government 
 of the several States. It has been decided that the Supreme Court has 
 appellate jurisdiction, in certain cases, over the final decisions of the State 
 courts. The Constitution provides to what cases the judicial powers 
 of the United States shall extend, and in which of these cases the Su- 
 preme Court shall have original jurisdiction; and in "all other cases 
 the Supreme Court shall have appellate jurisdiction, with such excep- 
 tions and under such regulations as Congress shall make." By an 
 act of Congress,' a final judgment or decree in any suit in the highest 
 
 ' Act of Sept. 24th, 1789, § 25. 
 
CHAP, v.] THE JUDICIARY DEPABTMENT. 77 
 
 court of law or equity of a State, wherein the validity of a treaty, etc., 
 is called in question, and the decision is against it, may be re-examined 
 and reversed or afBrmed in the Supreme Court of the United States 
 upon a writ of error. This supervision of the Supreme Court of the 
 Uuiou over the State courts has been strongly contested. But the Su- 
 preme Court has vindicated successfully its jurisdiction, and decided that 
 the Constitution contemplated that cases within the judicial cogni- 
 zance of the United States would arise in the State courts, in the exer- 
 cise of their ordinary jurisdiction, and that the State courts would 
 incidentally take cognizance of cases arising under the Constitution, the 
 laws, and the treaties of the United States ; and as the judicial powers 
 of the United States extend to all such cases, by the very terms of 
 the Constitution, it follows, as a necessary consequence, that the appel- 
 late jurisdiction of the courts of the United States extends to the State 
 tribunals, and attach upon every case within the cognizance of their 
 judicial powers. The appellate power in these cases is founded on the 
 clearest principles of policy and wisdom, and is deemed requisite to 
 fulfill effectually the ends of the Constitution, and to preserve uni- 
 formity of decisions upon all subjects within its purvjew. The mis- 
 chief of opposite constructions and contradictory decisions in tlie differ- 
 ent States on all points of general concern, would be deplorable. 
 
 § 21. But the Supreme Court has considered that though the appel- 
 late powers of court were given by the Constitution, " with such escep- 
 tions and under such regulations as Congress should make," they were 
 limited entirely by the judiciary statutes, which were to be understood 
 as making exception to the appellate jurisdiction of the court, and to 
 imply a negative on the exercise of such a power in all cases but those 
 in which it is expressly given and described by statute. 
 
 § 23. 3. The Constitution gives to the Supreme Court original juris- 
 diction in those cases in which a State shall be a party. Upon this 
 subject the Supreme Court has decided that a State's merely having an 
 interest in the question or controversy was not sufficient to give juris- 
 diction to this court ; that it must be a case in which a State is either 
 nominally or substantially the party, and that it was not sufficient that 
 the State may be consequently affected, as being bound to make retri- 
 bution to her grantee upon the event of an eviction. No controversy 
 or decision as to right of soil, or jurisdiction between individuals, to 
 which the State is not directly a party upon the record, will affect the 
 rii-ht of the State as to jurisdiction, or give orijfi'naZ jurisdiction to the 
 Supreme Court. 
 
 § 23. 4. In the case of Cohens vs. Virginia, the Court decided that 
 its appellate jurisdiction was not excluded by the character of the parties, 
 one of them being a State, and the other a citizen of the State. Juris- 
 diction was given to the courts of the Union in two classes of cases. 
 
78 PUBLIC LAW. [book i. 
 
 In the first, the jurisdiction depended upon the character of the causes, 
 whoever might be the parties ; and in the second it depended entirely 
 upon the character of the parties, without regard to the subject of con- 
 troversy. It was authorized to decide all cases of every description 
 arising under the Constitution, laws, and treaties of the Union, and 
 from this general grant of jurisdiction no exception is made of cases 
 in which a State may be a party. 
 
 CHAPTER YI. 
 
 THE INOIDENTAL POWERS OF THE UNITED STATES. 
 
 § 1. The United States, not only as to its foreign relations, but also 
 as to the rights and privileges of the citizens in their intercourse with 
 each other, forms but one nation; and it was with this view that the 
 Constitution prpvided that Congress should have power to regulate com- 
 merce among the several States, to establish a uniform rule of naturali- 
 zation, to coin and regulate money, to establish post-offices and post- 
 roads, to secure for a limited time to authors and inventors the exclusive 
 right to their respective writings and discoveries, to organize the militia, 
 and to prescribe the manner of proving the acts, records, and proceed- 
 ings of any State in that of another. 
 
 § 2. I. In the construction of the power to regulate commerce, it has 
 been held that the term meant not only traffic, but intercourse, and that 
 it included navigation. Commerce among the several States was com- 
 merce intermingling with the States, which might pass the external 
 lines of each State and be introduced into the interior.^ With this 
 power of Congress the States have no right to interfere. But it does 
 not extend to commerce which is completely internal and carried on be- 
 tween different parts of the same State, This is within the cognizance 
 of the States. So complete a control has Congress over commerce, both 
 foreign and domestic, that it may lay a general embargo, although com- 
 merce may be thereby interrupted for an indefinite time. 
 
 § 3. It was with this same view that the Constitution provided that 
 no tax or duty should be laid on articles exported from any State ; nor 
 preference bo given by any regulation of commerce or revenue to the 
 ports of one State over those of another.^ 
 
 § 4. II. For the purpose of further identifying us as one people, the 
 
 1 1 Kent's Com. 436 ; 9 Wheat. E. 5. 
 
 > Serg. Con. L. 303 ; U. S. Con., Art. i. § 9. 
 
CHAP. VI] INCIDENTAL POWERS. 79 
 
 Constitution has conferred upon Congress the power to "establish a 
 uniform rule of naturalization," and declared that " the citizens of each 
 State shall be entitled to all the privileges and immunities of citizens in 
 the several States." 1"his renders the rights of all persons who are citi- 
 zens in any State equal in any other State to those of its own citizens. 
 There can be no distinction made in any particular State between its 
 own citizens and those of any other part of the Union. A State law for- 
 bidding all others but its own citizens to exercise certain rights would 
 be void as against citizens of other States ; but if it forbid the exercise 
 of those rights by any persons, except under certain conditions, the 
 citizens of other States could not exercise those rights in that State 
 without complying with the requisitions of the law, although they 
 might not be subject to the same restrictions in their own State. 
 
 § 5. III. The power of Congress to coin money and regulate its 
 value is a high prerogative of sovereignty, confided to the federal gov- 
 ernment with a view of establishing a uniform currency throughout 
 the Union. Congress, therefore, has the exclusive control of these sub- 
 jects, and, as incident to it, the right to punish the violation of the secu- 
 rities, and current coin of the United States, or paper issued as currency 
 by them. 
 
 § 6. Congress has power to fix the standard of weights and measures ; 
 the genera] interest requiring that they, as well as the currency, should 
 be uniform throughout the country. All the powers which Congress 
 possesses on these subjects have not been exercised; but as incident 
 to the power to regulate the value of money, to raise a revenue, to pro- 
 vide for the general welfare, Congress has assumed more than once the 
 right to establish a United States bank, for the purpose of giving a uni- 
 form currency throughout the Union, and to aid the government in its 
 fiscal operations. Strenuously as this power has been contested, ex- 
 perience has demonstrated its utility and vital importance to the com- 
 mercial interest of the country. 
 
 § 7. IV. The power of Congress to establish post-offices and post- 
 roads is a matter of general interest, and, as connected with it, and 
 with that of carrying on the military operations and general defense, 
 and of regulating commerce, Congress has derived the authority to 
 make internal improvements in the several States with their assent, by 
 means of roads and canals, with a view of promoting and giving secu- 
 rity to internal commerce, and a more safe and economical transporta- 
 tion of military stores, etc. in time of war as well as in time of peace, 
 leaving to the respective States the right of jurisdiction over the soil. 
 
 § 8. Y. Congress, for the purpose of promoting the progress of 
 science and useful arts, by securing for limited times to authors and in- 
 ventors the exclusive right to their respective writings and discoveries, 
 has passed laws for granting patents for inventions, and copyrights for 
 
80 PUBLIC LAW. [book i. 
 
 literary productions. For this purpose the powers of the respective 
 States would be unequal and inadequate; and it was therefore obviously 
 proper that the subject should be protected by the authority of the 
 Union. 
 
 § 9. VI. Congress has a very extensive power over the militia of the 
 States, for the purpose of organization and calling them out into the 
 service of the Union. The President, in case of invasion, is authorized 
 to call forth such numbers of the militia as he may judge necessary. 
 When the militia are thus called out, they are not considered to be in 
 the actual service of the Union until they are mustered at the place of 
 rendezvous ; but when thus in the service of the United States, their 
 character is changed from that of State to tliat of national militia, and 
 they come exclusively under the authority of the general government. 
 Actual service is considered the criterion of national militia, and the 
 place of rendezvous the terminus a quo the service, the pay, and sub- 
 jection to the articles of war of the Union are to commence. 
 
 §10. The authority of appointing officers for the militia is reserved 
 to the State government ; but when in the actual service of the United 
 States the militia are under the command of the President. In the ab- 
 sence of the President, in cases where there is a union of the militia 
 with troops of the United States, it appears not to be definitely settled 
 whether they are to act under their respective officers, in concert, as allied 
 forces, or whether the officer present who is highest in rank, whether of 
 the militia or of the federal troops, is to command the whole. During 
 the late war, by an act of Congress, the regular troops and the State 
 volunteers were put on the same footing, and the officers of each class 
 of troops on equal terms, so that if there were at the same post three 
 regiments, one of regulars and two of State volunteers, with no higher 
 officer there than the three colonels, he whose commission was the oldest 
 would take command of the post. In this case it made no difference 
 whether his commission was from a State or from the United States. 
 By the act of Congress any superiority that might be otherwise attached 
 to the officer of the United States was taken away. In the absence of 
 such law, it is to be presumed that the rules which usually govern allies 
 would apply. 
 
 § 11. VII. Authority is given to Congress to prescribe the manner 
 in which the public acts, records, and judicial proceedings of every 
 State shall be proved, and the effect thereof in every other State. 
 Under the act of Congress upon this subject, it has been held that if 
 a judgment, duly authenticated as it prescribes, had in the State court 
 from whence it was taken the faith and credit of the highest nature, 
 viz., record evidence, it must have the same faith and credit in every 
 other court, and therefore, nul tid record, and not nil debet, is the 
 proper plea in a suit on such judgment ; but this is not necessarily the 
 
CHAP. Til.] THE STATE OF OHIO. 81 
 
 only plea ; for any special plea may be pleaded which would be good 
 to avoid the judgment in the State where it was pronounced. 
 
 § 12. Connected with this subject of judicial intercourse, it may be 
 remarked that it is a plain principle of justice that no State ought to 
 permit itself to become an asylum for criminals ; and therefore, as a 
 matter of comity, the extradition of persons charged with and convicted 
 of criminal offenses affecting the general peace and security is in some 
 countries permitted. But without a special compact, there is no posi- 
 tive obligation upon a nation to surrender those who have fled to it 
 for refuge. The variety of offenses, and their punishments in different 
 States, or the difference in the criminal policies of the several States, 
 may make a State unwilling to subject a supposed offender to what it 
 may consider an unjust punishment. The connection between the States 
 of the Union makes it essential to the peace and harmony of the country, 
 as well as to the security of individuals, that offenders should not escape 
 punishment by fleeing from one State to another ; therefore the Consti- 
 tution provides that a person charged in any State with treason, felony, 
 or other crimes, who shall flee from justice, and be found in another 
 State, shall, on demand of the executive authority of the State from 
 which he fled, be delivered up to the State having jurisdiction of the 
 crime. 
 
 CHAPTER VII. 
 
 THE STATE OF OHIO. 
 
 § 1. The sovereignty of the State is not necessarily lost by its be- 
 coming united with others under a general or federal government; 
 this only limits and qualifies it in various degrees. So long as the 
 respective governments. State and federal, are assigned to their separate 
 and appropriate spheres, and the different component parts are united 
 with a perfect equality of rights, the sovereignty of each State remains 
 unimpaired. Its sphere of action may be more limited, but its sov- 
 ereignty remains the same. Sovereign states, permanently united to- 
 gether by a federal compact, either form a system of Confederated 
 Slates, properly so called, or a supreme Federal Government, some- 
 times called a composite State. The difference is perceptible between 
 the old Confederation of the United States and the government under 
 the present Constitution ; and perhaps the same may be said of the 
 old German Confederation and the present. The examples of both are 
 numerous in history. 
 
 § 2. In the first case, the several States are connected by a compact 
 
 6 
 
82 PUBLIC LA W. [book i. 
 
 which does not essentially differ from an oi-dlnary treaty of equal 
 alliance. Consequently, the sovereignty of each raember of the Union 
 remains the same ; the resolutions of the federal body being en- 
 forced, not by laws directly binding on the private individual subject, 
 but through the agency of each separate government adopting them 
 and giving them the force of law within its own jurisdiction ; and the 
 federal body remains powerless except through the will and pleasure 
 of such agency — the several States forming the federal compact. 
 
 § 3. The government of the United States is an instance of the 
 second case. It is not merely a league of sovereign States for their 
 common defense against external and internal violence, but a supreme 
 federal government, or composite state, acting not only upon the 
 sovereign members of the Union, but also directly upon all its citizens 
 in their individual capacity. And though under this arrangement the 
 State remains a sovereign State, yet the sovereignty is limited and 
 qualified in its powers and authority by the federal compact, which, 
 within its constitutional limits, is supreme. The State and federal 
 governments, ea;Ch within its own respective departments, is perfect 
 and supreme ; but intended, and so formed, as to co-operate and form 
 one perfect Union — one perfect whole. 
 
 § 4. It is therefore an interesting and important question to ascer- 
 tain the extent of the jurisdiction of the State, and how far it is con- 
 trolled by the Constitution of the Union. It has been seen that the 
 object in creating the general government was to conduct our foreign 
 affairs, and to manage our general and common relations. The State 
 remained with all its usual functions, to act in all the usual au- 
 thority of government in domestic affairs, — in the protection of life, 
 liberty, and property, — restrained only in those objects, which were 
 necessary and proper for the general government to exercise, for the 
 purpose of enabling it to carry out the object of its creation. In this 
 respect, as has been seen, certain exclusive powers and authority were 
 given to the United States. These were such as were required to 
 enable it to carry on and conduct the general government. Then the 
 States were prohibited from doing certain things which were con- 
 sidered inconsistent with the object of the general government, and 
 not necessary for the due administration of the State government. 
 And, lastly, the States were restrained from the exercise of certain 
 powers inconsistent with those confided to the Union. 
 
 § 5. As to the first two classes of relative powers, they generally de- 
 pend upon express enumeration in the Constitution of the United States, 
 and have been treated of in relation to the government of the United 
 States. But the great conflict as to the relative powers of the sev- 
 eral States and general government has been in relation to the third 
 class, — those which might be claimed by the States, but which are in- 
 
CHAP, vii.] THE STATE OF OHIO. 83 
 
 consistent with those specifically conferred upon the Union. Congress 
 is authorized to pass laws on a variety of subjects— as, for instance, to 
 pass a uniform naturalization law; to pass a uniform banb'upt law; to 
 provide for organizing and disciplining the mDitia, and the like. Upon 
 all these subjects the several States have, from time to time, passed 
 laws for the regulation of the same subject-matter. The tenth article 
 of the amendment to the Constitution of the United States declares 
 that the powers not delegated to the United States by the Constitu- 
 tion, nor prohibited by it to the States, are reserved to the States 
 respectively, or to the people. Under this apparent conflict, it becomes 
 a serious question what a State might or could do upon those several 
 subjects. 
 
 § 6. In those eases where Congress has the power to legislate, the 
 rule as to the restraint upon the States is this: That the States retain 
 all pre-existing authority or jurisdiction which they had before the 
 adoption of the Constitution, except where it was taken away, either 
 by an exclusive authority granted to the Union, or where a particular 
 authority was granted to the Union, and the exercise of a like authority 
 was prohibited to the States, or where a similar authority in the States 
 would be incompatible. In these cases the States have no authority 
 to legislate, or power to take jurisdiction ; for that would lead to direct 
 conflict of power and jurisdiction. 
 
 § 7. But where the States are neither prohibited, nor the exclusive juris- 
 diction over the subject-matter given to Congress, as the militia, bank- 
 ruptcy, currency, and the like, the States have continued to legislate on 
 any or all such subjects, until Congress has assumed to legislate and 
 direct what may or may not be done on the subject. If by the action of 
 Congress the States are left to exercise a limited jurisdiction upon the 
 subject, they may do so to the extent that the act of Congress will 
 permit. But where Congress has legislated upon a subject committed 
 to it by the Constitution, and Congress has assumed to regulate the 
 matter, then the power and authority of the States are necessarily re- 
 strained upon the same subject; for when Congress says that the sub- 
 ject-matter shall be regulated in a particular manner, it is equivalent to 
 saying that it shall not be regulated in any other, and therefore no 
 room is left to legislate upon the same subject. Where Congress neglects 
 or refrains from exercising the powers given to it upon the subject, the 
 States may legislate until superseded by the action of Congress. This 
 has been the action of Congress in various instances, as that on the 
 militia, that on banking and currency, and other similar subjects. Any 
 act of the State legislature which would come in conflict with an act of 
 Congress on any subject over which it has such discretionary power 
 would be held to be jinconstitutional and void. 
 
 § 8. The restriction placed upon the action of the State by the Con- 
 
84 PUBLIC LAW. [book I. 
 
 stitution and the laws of the Union has been treated of in the subject 
 of the-powers of Congress. But, formidable as the powers of the gen- 
 eral government over the State may appear, they are in reality very few 
 and limited, and are but seldom felt by the citizens of the State, while the 
 laws and jurisdiction of the State are brought constantly to bear upon 
 every, person in the State, and to operate upon almost every subject 
 that affects his interest or his happiness. By the State is protected all 
 that is dear or sacred to mam — his life, liberty, property, and happiness. 
 The laws of the Union affect one's interest seldom, or very remotely, 
 while those of the State constantly surround him, and upon them he 
 always depends as his shield and protector. 
 
 § 9. The State possesses many of the immunities of an independent 
 and self-governingf sovereignty. It cannot be sued, and although in 
 law it is like a corporation, with a name and having an imaginary iden- 
 tity and person capable of suing, still, on account of the dignity and 
 sovereign power it possesses, those who have claims against it must 
 apply by petition to the proper departments, for they cannot sue the 
 State. 
 
 CHAPTER VIII, 
 
 LEGISLATrVB POWERS OP THE STATE. 
 
 § 1. The Constitution of Ohio provides that the legislative powers of 
 the State shall be vested in a General Assembly, to consist of a Senate 
 and a House of Representatives. The members of each house are to 
 be elected biennially, by the electors in their respective districts, on the 
 second Tuesday in October, their term of office to commence the first 
 day of January next thereafter, and to continue two years. The qualifi- 
 cation of a member is, that he shall have resided in his district one year 
 preceding his election, unless absent on public business. No person 
 holding office under the United States, or any lucrative office under the 
 authority of the State, shall have a seat in the General Assembly ; but 
 township officers, justices of the peace, notaries public, and officers of 
 the militia are excepted from this prohibition. No person holding pub- 
 lic money for disbursement shall have a seat in the General Assembly 
 until he shall have accounted for and paid it into the treasury ; nor shall 
 any person convicted of embezzlement of the public funds hold office in 
 this State. 
 
 § 2. Each house shall judge of the elections, returns and qualifications 
 of its own members ; and a majority of all its members shall be a quorum 
 
cnAP. VIII.] LEGISLATIVE POWERS OF THE STATE. 85 
 
 to do business ; but a less number may adjourn from day to day, and 
 compel attendance. The Constitution directs that the mode of organ- 
 izing the house at each regular session shall be prescribed by law. In 
 pursuance of this provision, the legislature has directed that at the hour 
 of ten o'clock a.m., on the day appointed for the convening of aay 
 regular session of the General Assembly, the President of the Senate, 
 or, in his absence, the oldest member of the Senate, shall take the chair, 
 call the members-elect to order, appoint from the members a clerk pro 
 tern., and then proceed to call over, by districts, the persons who claim 
 to be elected, who are to take an oath to support the Constitution of 
 the United States and of the State of Ohio, and also an oath of office. 
 When a quorum is thus organized, they are to elect a clerk and assist- 
 ants, a sergeant-at arms and assistants, by a viva voce vote. 
 
 § 3. The same legislative act directs that it shall be the duty of the 
 Secretary of State, and, in his absence or inability, then the Auditor 
 of State, at the same time with the meeting of the Senate, to call the 
 persons elected to the House to order, and appoint from those elected a 
 clerk pro tern., who shall proceed to be qualified, and form a quorum, 
 and proceed to organize very much in the same manner as prescribed 
 for the Senate. They then elect their speaker, clerks, and sergeant-at- 
 arms, and proceed to business. 
 
 § 4. The Constitution also provides that each house, except as other- 
 wise provided, shall choose its officers, determine its own rules of 
 proceedings, punish its members for disorderly conduct, and, with the 
 concurrence of two-thirds, expel a member, but not the second time for 
 the same cause ; and shall have all other powers necessary to provide 
 for its safety and transaction of business. Each house shall keep a 
 journal of its proceedings, which shall be published. No law shall be 
 passed except by the concurrence of a majority of all the members 
 elected to each house. On the passage of every bill the vote shall be 
 taken by yeas and nays, and entered upon the journal ; and upon any 
 question the vote, at the request of any two members, may be so en- 
 tered. Any member shall have the right to protest against any act 
 or resolution, which protest, with the reasons therefor, shall, without 
 alteration, comment, or delay, be entered upon the journal. 
 
 § 5. The mode of proceeding in the General Assembly, when so or- 
 ganized, is very much the same as in Congress and other legislative 
 bodies. Without distinction, any bill may originate in either house, and 
 in each is subject to commitment and amendment, as in the usual course 
 of legislation ; except that the Constitution has this unusual provision, 
 
 that no bill shall contain more than one subject, which shall be clearly 
 
 expressed in its title, and no law shall be revised or amended unless the 
 new act contains the entire act revised, or the section amended, and 
 the section so amended shall be repealed. When an act is thus passed. 
 
86 PUBLIC LA W. [book i. 
 
 it is signed by the presiding officer of each house in the presence of the 
 house over which he presides, while in session, and it thereby becomes 
 a law, without the signature of the Governor, or any veto power on his 
 part. 
 
 § 6. The members of the General Assembly, during the session, while 
 going to and returning from the same, are privileged from arrest in all 
 cases except treason, felony, or breach of the peace ; and for any speech 
 or debate in either house they are not to be questioned elsewhere. 
 They are precluded, during the terra for which either is elected, and 
 for one year thereafter, from being appointed to any civil office which 
 shall be created, or the emoluments thereof increased, during his term. 
 The General Assembly is to fix the term of office and the compensa- 
 tion of all officers, in all cases not provided for in the Constitution ; but 
 no change shall affect the salary of an officer duriug his term, unless the 
 office is abolished ; and they are to determine by law before* what 
 authority and in what manner the trial of contested elections shall be 
 conducted. 
 
 § t. The Constitution confers other powers upon the legislature. 
 One of the most important is that in relation to impeachment. It 
 declares that the House shall have the sole power of impeachment, 
 in which a majority of the members elected must concur. The Senate 
 are to try the impeachmcntj and when sitting for that purpose, the 
 senators shall be under oath or affirmation to do justice according to 
 law and evidence. No person is to be convicted without the concur- 
 rence of two-thirds of the senators. All the State officers may be im- 
 peached for any misdemeanor in office, but judgment shall only extend 
 to removal from office and disqualification to hold office under the author- 
 ity of the State; and the party is still liable, whether convicted or not, 
 to a prosecution and conviction under an indictment, according to law. 
 The election and appointment of all officers, and the filling of vacancies 
 not otherwise provided for by the Constitution of the State shall be 
 made in such manner as may be directed by law ; but no appointing 
 power shall be exercised by the General Assembly, except as proscribed 
 by the Constitution, and in the election of United States Senators, in 
 which cases the vote shall be taken viva voce. 
 
 § 8. The restrictions placed upon the action of the legislature arc 
 numerous. Those arising from the Constitution and laws of the United 
 States have been already considered,' but those arising from principles 
 adopted by our own Constitution are numerous and important, and 
 these are to be found in three classes of cases. (1) Where the Con- 
 stitution by direct and positive terms prohibits or denies the exer- 
 cise of a particular power; (2) where the Constitution or the bill of 
 
 > Ante, ch. i. § 11-13, and ch. vi. 
 
CHAP. Tin.] LEGISLATIVE POWERS OF THE STATE. 87 
 
 rights has announced principles which would render the proposed action 
 of the legislature incompatible with it; or (3) where from general 
 principles adopted by the Constitution, or universal right and justice, 
 the action of the legislature would be also inconsistent. These restric- 
 tions are put upon the legislative power for the safety and preservation 
 of the liberties of the people, and every legislative act that is a palpable 
 violation of them is void.' The grant of power being general, and ex- 
 tending to all subjects of legislation on the part of the State, the ques- 
 tion of a limitation arising from a special prohibition must be found 
 either in express terms, or clearly inferable by necessary implication 
 from the language, when construed according to its manifest spirit and 
 meaning. 
 
 §9. Among the positive restrictions of the Constitution upon legis- 
 lative action are these: No money shall be drawn from the treasury 
 except in pursuance of a specific appropriation made by law ; and no 
 appropriation shall be made for a longer period than two years. Xo 
 retroactive laics, or laws impairing the obligation of contracts, shall be 
 passed ; but general laws may authorize courts to carry into effect, upon 
 just and equitable terms, the intention of parties and officers, by curing 
 omissions, defects, and errors in instruments and proceedings arisinn- 
 from their want of conformity with the laws of this State. No extra 
 compensation shall be made to any officer, public agent, or contractor, 
 after the service shall have been rendered or the contract entered into ; 
 nor shall any money be paid on any claim not provided for by the pre- 
 existing law, unless it be allowed by two-thirds of the members elected 
 to the General Assembly. 
 
 § 10 Besides these positive restrictions, the Constitution, in the bill 
 of rights, makes ample provisions "to promote our common welfare," 
 and to secure to every one the essential rights of " life, liberty, and 
 the pursuit of happiness." In accordance with this arrangement of 
 government, the courts, in their administration of justice, in all cases 
 where those principles are applicable, bring every legislative provi.siou 
 to the constitutional test, and wherever an enactment is found to infringe 
 its provisions or contravene its principles, they may, for the purpose of 
 protecting these vested rights, declare such enactment null and void. 
 Still the courts, while exercising these great supervisory powers, pru- 
 dently and cautiously declare that while it is the right and duty of a 
 judicial tribunal to give full force and effect to the organic law of the 
 State, and therefore to declare null and void any attempted act of legisla- 
 tion which contravenes the limitation imposed by the Constitution upon 
 legislative power, yet such judicial interference cannot be justified in a 
 doubtful case; for the presumption must always be in favor of the 
 validity of the laws if the contrary is not clearly demonstrated. 
 
 ' Loahman vs. McBride, 15 O. S. E. 590; 1 Kent's Com. 423. 
 
88 PUBLIC LAW. [book i. 
 
 § 11. It has been seen how the Constitution and government of the 
 United States control and limit the State governments in those matters 
 that concern the Union, where it is proper and necessary to carry out its 
 objects and functions. But all matters which relate to the right of per- 
 sonal security, the right of private property, and the right to civil and 
 political liberty, are left entirely to State government and legislation. 
 In all these respects, and, indeed, in relation to all municipal matters, 
 as well as the civil rights and franchises of the people, the several 
 States are left to their own legislation, uncontrolled, except in a few in- 
 stances deemed necessary for the preservation of the Union — as, for 
 instance, that every State must have a republican form of government ; 
 that no State shall enter into any treaty, alliance, or confederation, or 
 keep troops or ships of war in time of peace, and the like restrictions ; 
 or those deemed essential to the preservation of civil rights throughout 
 the Union — as that the citizens of each State shall be entitled to all 
 the privileges and immunities of citizens in the several States, that no 
 State shall pass any law impairing the obligation of contracts, and the 
 like. These are so just and proper, and they so commend themselves, 
 that they have been very generally adopted into the Constitutions of 
 the several States. Under these judicious restrictions, the State legis- 
 lature has almost unlimited power to pass such laws as the welfare of 
 the people may require. 
 
 § 12. The acts of the General Assembly, when thus passed in accord- 
 ance with its mode of proceedings, and in compliance with the restrictions 
 of the Constitution, are called statutes, which, with the Constitution of 
 the State, and the Constitution of the United States, its treaties and 
 laws, form the great body of the written and positive law of the land, 
 in contradistinction to the common law, or the unwritten law. The 
 statutes are classified and distinguished, in Ohio, as general or local, 
 and private ; but according to the common law they are distinguished 
 as either public or private statutes. The former are those which re- 
 late to the interests of the whole community ; the latter include only 
 such as relate to private interests merely. Of the public statutes, the 
 courts, ex officio and of their own motion, take notice ; but of the 
 private statutes they do not, unless specially pleaded. They arc again 
 distinguished as either remedial ov penal: the former are construed by 
 the courts more liberally, with a view to carry out the remedy intended 
 by the legislature to be effected by them; while upon the latter they 
 put a strict construction, so that no one may suffer more, though he 
 may suffer less than would be warranted under a different construction. 
 
 § 13. The rule is that statutes tale effect from the date of their final 
 passage. This might, in some instances, subject a person to a penal 
 statute for an act done before he could be aware of its passage ; to ob- 
 viate this injustice, the legislature is generally careful, in such statutes, 
 
CHAP. Till.] LEGISLATIVE POWERS OF THE STATE. 89 
 
 to declare that the act shall take effect from and after a certain future 
 day, thereby obviating the injustice of subjecting a person to the conse- 
 quences of violating a law before it was possible for him to have a knowl- 
 edge of its existence. 
 
 § 14. In the multiplicity of our statutes, their numerous revisions 
 and repeals, great complicity frequently occurs between different stat- 
 utes, — the old and the new. Upon this subject these rules have 
 been adopted: — (1) It is a very ancient rule, that when a statute is re- 
 pealed it is considered as though it never existed, except as to things 
 done and rights acquired under it. It was, therefore, the English rule 
 that upon the repeal of a statute which repealed a former statute, such 
 former statute thereby became revived ; but this implied revival is 
 prevented in Ohio by positive enactment. Where a penal statute is 
 repealed, unless there be some saving clause in the repealing statute, 
 all prosecution under it must cease, and it cannot sustain a convic- 
 tion.' 
 
 § 15. (2) "When two statutes are in direct conflict with each other, 
 and are so far inconsistent that both cannot be enforced, the last 
 statute passed is to be considered as containing the will of the legisla- 
 ture, and repealing so much of the former law as is manifestly contrary 
 to it ; but no court will determine a statute to be thus repealed by im- 
 plication^ where it can be consistently avoided. For it is a well-settled 
 law that several acts in pari materia, and relating to the same subject, 
 are to be taken together, and so construed, if possible, as to form a con- 
 sistent policy and one harmonious whole.^ But where legislative acts 
 come in direct and irreconcilable conflict, or are drawn in question as 
 opposed to the Constitution of the United States or that of the State, it 
 becomes the right and duty of the judicial tribunals, in a suit pending 
 before them, to determine, in the first instance, that the prior act is re- 
 pealed, and, in the second, to treat it as null. In such cases, however, 
 the presumption is always in favor of the law, and of its capacity to 
 be reconciled ; and it is only when manifest incompatibility exists that 
 this judicial power will be exercised.* 
 
 § ] 6. The maxim leges posteriores priores contrarias dbrogant does 
 not apply except where the inconsistency is such that the two provi- 
 sions cannot stand as cumulative or concurrent ; for repeal by impli- 
 cation is not favored, and it is a well-settled rule, applicable to all 
 remedial laws, that where a new remedy or mode of proceeding is 
 authorized, without an express repeal of a former one, it is to be re- 
 
 1 Calkins m. State, 14 0. S. E. 222. 
 
 " Ludlow vs. Johnson, 3 O. K. 564. 
 
 sHirn vs. State, 1 0. S. K. 15. See also 15 0. S. E. 114. 
 
 « 1 O. S. E. 77 i 7 Ibidem, 546. 
 
90 PUBLIC LA W. [book i. 
 
 gardcd as merely cumulative, creating' a concurrent remedy, and not as 
 abrogating the former mode of procedure,' 
 
 § IT. (3) Where a statutory right or remedy has been created, and has 
 subsequently been repealed, but the repealing statute provides a substan- 
 tially similar right or remedy, it may be pursued or prosecuted under 
 the repealing statute.^ Thus, where a case was pending under an act 
 regulating attachments, which was repealed by an act which re-enacted 
 substantially the provisions of the former act, but without any saving 
 clause, it was held that the case was not affected by the repeal. The 
 instant one law ceased to cxi.st, the other came into operation. The rule 
 of proceeding and of property was never changed. A similar rule has 
 been adopted as to the statute of limitation, holding the limitation to be 
 governed by the former statute. 
 
 § 18. It is a settled rule of condruction that the intention of the 
 law-making power is the governing principle, and is to be deduced 
 from a view of the whole and every part of the enactment taken and 
 compared together. It must be presumed to be intended that it should 
 be consistent with itself, and at the same time to have effect given to 
 each and every portion of the law. This important office of the judi- 
 ciary of expounding the law, on the one hand, should not be made to 
 cloak the exercise of legislative power or to enforce judicial legislation, 
 nor, on the other, is it bound to stick to the mere letter of the law, but 
 rather to seek for its reason and spirit in the mischief that required the 
 remed}', and the general scope of the legislation designed to bo effected 
 by the law.^ 
 
 § 19. The supreme court has reiterated the following ancient max- 
 ims as a fundamental rule of construction:* that "remedial statutes 
 shall bo construed liberally." " There are three points to be considered 
 in the construction of all remedial statutes, — the old law, the mischief, 
 and the remedy; that is, how the common law stood at the making 
 of the act ; what the mischief was for which the common law did not 
 provide ; and what remedy the legislature has provided to cure the 
 mischief. And it is the business of the judge so to construe the act 
 as to suppress the mischief and advance the remedy." " The equity 
 of a statute is a construction made by the judges, that cases out of the 
 letter of a statute, yet being within the same mischief, or cause of the 
 making of the same, shall be within the same remedy that the statute 
 provides " " The words of a remedial statute are to bo construed 
 largely and beneficially, so as to suppress the mischief and advance the 
 remedy. It is by no means unusual, in construing remedial statutes, to 
 
 1 E.iudbaugh vs. Shelloy, 6 0. S. E. 307; Darling vs. Peck, 15 0. E. 05. 
 ' Mitcliel vs. Bystor, 7 O. E. 1 Pt. 257 ; McKibben vs. Lejter, 9 0. S. E. 627. 
 s State vs. Blake, 2 0. S. E. 147 ; Tracy vs. Curd, 2 0. S. E. 431. 
 <■ See Ohio Dig. 575', Z 01. 
 
CHAP, vm] LEGISLATIVE POWERS OP THE STATE. 91 
 
 extend the enacting words beyond their natural import and effect, in 
 order to include ca«'s within the same mischief." " It frequently 'be- 
 comes the duty of the courts, in order to give effect to the manifest in- 
 tention of a statute, to restrain, or qualify, or enlarge the ordinary 
 meaning of the words used. It is said that the power of construing a 
 statute is in the judges, who have authority over all laws, and more 
 especially over statutes, to mould them according to reason and con- 
 science, to the best and truest use." 
 
 § 20. On the other hand, it is the settled rule of construction that 
 statutes conferring special privileges in derogation of common right, 
 are to be strictly construed; and thus an authority to create anew 
 corporation cannot be derived from mere implication. Upon the same 
 principle, penal statutes must be strictly construed. They cannot be 
 extended by implication to cases not strictly within their terms.' The 
 legislature is restrained by the Constitution from passing retroactive 
 laws ; aiid statutes affecting substantial interests and rights of prop- 
 erty are construed and enforced so as to ha\e a prospective operation 
 only, unless the contrary intention is clearly expressed. 
 
 §21. It frequently becomes an important question whether an act 
 intended to be done in pursuance and by virtue of a statute is effectual 
 or void, on account of its not precisely conforming to the statute, 
 or not fully performing its requirements. In determining the ques- 
 tion, the reason of the law and its intended operation, as well as the in- 
 tention of the law-making power, are to be taken into consideration. 
 The question, then, will be whether the act has not been substantially 
 performed, and whether or not the matters not complied with are merely 
 director!/ and not essential to its validity. " There is a known dis- 
 tinction between circumstances which are of the essence of a thing 
 required to be done by a statute, and a clause merely directory." 
 Where an act is of the essence of the thing required by a law, or 
 where it is essential to accomplish the oljject and intent of the law, it 
 is imperative, and cannot be dispensed with ; but otherwise it may be 
 merely directory. Thus, where a law should direct an officer in a cer- 
 tain case to make a levy, advertise, and sell, and he should sell without 
 a levy, the sale would be probably void ; but a levy and sale without 
 an advertisement would be good, and the advertising considered direc- 
 tory ; and for the non-compliance with it the officer would be liable in 
 damages to the person injured. 
 
 § 22. The word void, in some instances, has been construed as i-oid- 
 ahle, as where the proviso was introduced in favor of the party who did 
 not wish to avoid the instrument. But although void is sometimes con- 
 strued voidable, and where the provision is introduced for the benefit of 
 
 ' O. Dig. 573. I 48, 49, 64. 
 
92 PUBLIC LA W. [book i. 
 
 the party only, such a construction maybe right ; yet where it is intro- 
 duced for public purposes, and to protect a class unable to protect 
 themselvres, it should receive its full force and effect. And where a stat- 
 ute prohibits a thing to be done, and does not expressly avoid the secu- 
 rity made within it, then, if the violation of the law does not appear on 
 the face of the instrument, and the party taking it is ignorant that it 
 was made in contravention of the statute, it is an available security in 
 the hands of such innocent person. But where the law declares the in- 
 strument absolutely void, as has been in some instances as to gambling 
 notes, then the instrument is void in the hands of even innocent persons. 
 § 23. Statutes, and generally all written instruments, are construed 
 and interpreted upon the same principles, and very much alike. The 
 rules applicable to wills, deeds, and the like, are, in most instances, 
 equally applicable to statutes, — all dependent upon common sense and 
 reason in working out the ends of justice. Most of the rules applicable 
 to the acts of Congress are equally applicable to those of the General 
 Assembly. 
 
 CHAPTER IX. 
 
 EXECUTIVE OF THE STATE. 
 
 § 1. The Constitution provides that the executive department shall 
 consist of a Governor, Lieutenant-Governor, Secretary of State, Audi- 
 tor, Treasurer, and Attorney-General, who shall be cho.sen by the elec- 
 tors of the State on the second Tuesday of October, at the places of 
 voting for members of the General Assembly. These officers hold their 
 several offices for two years (except the Auditor, who holds his for four 
 years) ; their term of office commences on the second Monday of Janu- 
 ary next after their election, and continues until their respective succes- 
 sors are elected and qualified. The returns of the election of these 
 officers are made to the President of the Senate, and during the first 
 week of the session are opened in the presence of a majority of each 
 house of the General Assembly, and the result of the election then de- 
 clared. Should there be no session of the General Assembly in January 
 next after such election, the returns are to be made to the Secretary of 
 State, by him opened, and the result declared by the Governor. 
 
 § 2. The supreme executive power of this State is vested in the Gov- 
 ernor. He may require information, in writing, from the officers of the 
 executive department upon any subject relating to the duties of their 
 respective offices, and is to see that the laws are faithfully executed. 
 He may, on extraordinary occasions, convene the General Assembly by 
 
CHAP. IX.] EXECUTIVE OF THE STATE. 93 
 
 proclamation; and at every session shall communicate to the General 
 Assembly the condition of the State, and recommend such measures as 
 he shall deem expedient. Whenever the two houses shall disagree in 
 respect to the time of adjournment, the Governor has the power to ad- 
 journ the General Assembly to such time as he may deem proper, not 
 beyond the next regular session. 
 
 § 3. The Governor is commander-in-chief of the military and naval 
 forces of the State, except when called into the service of the United 
 States. He has power, after conviction, to grant reprieves, commuta- 
 tions, and pardons for all crimes and offenses, except treason and cases 
 of impeachment, upon such conditions as he may think proper, subject 
 to such regulations as to the manner of applying for pardons as may be 
 prescribed by law. Cases of treason he shall refer to the General As- 
 sembly. All grants and commissions must be issued in the name and 
 by the authority of the State of Ohio, sealed with the great seal, signed 
 by the Governor, and countersigned by the Secretary of State. 
 
 § 4. The Governor cannot be a member of Congress, or exercise any 
 office under the authority of the United States or of the State. In case 
 of the death, impeachment, resignation, removal, or other disability of 
 the Governor, the duties of the office shall devolve upon the Lieutenant- 
 Governor, who is the President of the Senate ; and upon the existence 
 of similar disability on the part of the latter, the President of the Senate 
 pro tempore shall exercise the office of Governor ; and in case of a 
 vacancy or disability on the part of the last-named officer, the office shall 
 then devolve upon the Speaker of the House of Representatives. When 
 a vacancy happens in the oflSce of the head of the several departments 
 of State mentioned above, the Governor is to fill the vacancy until ,the 
 disability is removed or a successor is elected and qualified ; but in case 
 such vacancy happens thirty days before the general annual election, 
 the vacancy shall be filled by vote of the people at such annual election. 
 
 § 5. The Governor of Ohio has no veto power upon the enactment of 
 laws by the General Assembly. His powers and duties are pointed out 
 by the Constitution and laws of the State, and are too numerous to be 
 specifically referred to here, but, with those already mentioned, they 
 may be classified thus: to appoint, by and with the advice and consent 
 of the Senate, numerous officers designated by the Constitution and 
 laws, whose election is not otherwise provided for, and especially the 
 trustees of the benevolent and other State institutions ;' to be a member 
 of various boards and commissions superintending the affairs and interest 
 of the State ; to direct and issue orders to various officers and depart- 
 ments of the State, in dischargeof the duties required of him by the 
 Constitution and laws ; to issue proclamations in relation to the general 
 
 1 Const., Art. vii. ? 2. 
 
94 PUBLIC LAW. [book I. 
 
 elections of the State, and receive certain returns of such elections; to 
 issue commissions upon the returns of such elections, in pursuance of 
 law ; to appoint and commission various officers, in cases of vacancies, 
 to continue in office until another election, and until their successors 
 are qualified ; and in all these respects he has the most ample powers 
 to superintend and take care of the affairs of the State and public in- 
 terest, and to see that the laws are executed. 
 
 § 6. Another important duty appertaining to the office of Governor, 
 of quite responsible and delicate nature, is that in relation to fugitives 
 from other States and countries. There are three classes of fugitives: 
 1, fugitives from justice from foreign countries ; 2, fugitives from 
 justice from other States ; and 3, fugitives from labor due in other 
 States. 
 
 The first class, or fugitives from justice from foreign countries, are 
 those whose cases appertain to our national affairs, and only (or usually, 
 at least) come to the Governor of the State through the requisition of 
 the President. Fugitives from foreign countries are generally not inter- 
 fered with, except where there are treaties between the United States 
 and those countries for the extradition of such fugitives. Such com- 
 pacts are not made except as to crimes against persons and property, 
 and do not include political offenses. But where there is any such con- 
 vention, the act of Congress' authorizes any of the justices of the Su- 
 preme Court, or a judge of a district court of the United States, judges 
 of the State court, and comuiissioner of the United States court, upon 
 complaint under oath, charging any person found in any State or Terri- 
 tory with having committed such offense within the jurisdiction of such 
 foreign government, to issue a warrant to apprehend* such person and 
 hear the matter; and, in case such judge or commissioner finds the evi- 
 dence sufficient, to order him to be committed and detained in jail, and 
 certify a copy of the evidence and proceedings to the Secretary of State 
 of the United States. The Secretary of State is then authorized to issue 
 his order to deliver the person so committed to the order of such foreign 
 government ; and in case he be not demanded and received by such 
 foreign government within two months, the Secretary is authorized to 
 order his discharge. 
 
 § 7. These proceedings, as pointed out by the act of Congress, do 
 not require the interference of the Governor ; but the requisition 
 might pass through his hands, and, as it is his duty to see that all 
 citizens or denizens of the State are duly protected, it might in such 
 case be incumbent upon him to see that no injustice was done under such 
 pretense of a foreign claim. But it is in relation to the second class — 
 fugitives from other States or Territories — that the Governor is more par- 
 
 ' Act of August 12, 1848, 5 1. 
 
CHAP. IX.] EXECUTIVE OF THE STATE. 95 
 
 ticularly to act. In that case the act of Congress' provides that -when 
 the executive of any State or Territory of the Union shall demand of the 
 executive of any other State or Territory any fun:itive from justice, and 
 produce the copy of the indictment found, or affidavit made, before a 
 magistrate of such State or Territory, charging the person demanded 
 with having committed treason, felony, or other crimes, certified as 
 authentic by the Governor of the State or Territory whence the fugitive 
 fled ; the Governor may order the arrest, and give notice of it to the 
 executive of the State or Territory, and in case such executive or his 
 authorized agent do not receive him in six months, he is to be discharged. 
 The same act of Congress provides for the capture and return of fugi- 
 tives from labor, which is our third class. This is done by and upon 
 a warrant of a magistrate without the act of the Governor. This act 
 is now operative only in cases of apprentices, but at its passage was 
 principally intended to operate against fugitive slaves. The Governor, 
 as the executive of the State, being bound by the Constitution and his 
 oath to see that the laws of the State are duly executed and its inhab- 
 itants rightfully protected, these cases — the subject of frequent abuse 
 — often give the Governor much anxiety and arduous care. 
 
 § 8. The Governor, as the chief executive officer of the State, by 
 means of his oath, to see that the laws are faithfully executed, and his 
 authority to call on the heads of departments for information, is in- 
 trusted with the supervision of the executive oBicers of the whole State. 
 These officers may be classed as those: 1, of the State; 2, of the 
 county; 3, of the township; and 4, of the several municipal corpora- 
 tions. The duties of these several officers are pointed out by law, and 
 they are liable to indictment and punishment for neglect, besides being 
 liable in 'damages to any one who may suffer by such neglect. The 
 duties of these various officers are duly performed through the volition 
 and self-interest of each oiBcer, and therefore it is very seldom that the 
 Governor, in seeing that the law is faithfully executed, has to recur to 
 the officers of the county or township. The duties of the Governor 
 are but slightly connected with the officers of the municipal corpora- 
 tions of the various towns, for they are almost entirely watched over 
 and directed by the interest and welfare of the citizens of each town 
 themselves. The operations of the government of the State are carried 
 on principally by the heads of the several departments, through and 
 by the aid of the officers of the several counties and townships. It has 
 been decided that although the Governor, in the exercise of the supreme 
 executive power of the State, may, from the nature of his authority, 
 have a discretion which cannot be controlled by judicial power, yet, in, 
 regard to ministerial, acts which might have been devolved on any 
 
 1 Act of February 12, 1793. 
 
96 s PUBLIC LAW. [book i. 
 
 other officer of the State, and affecting any specific private rights, he 
 may be made amenable to the compulsory process of the court by 
 mandamus.^ 
 
 § 9. The heads of the several executive departments are enumerated 
 in the Constitution, and are the Secretary of State, Auditor, Treasurer, 
 and Attorney-General. Besides the ordinary duties appertaining to 
 each of these departments, these officers, under a provision of the Con- 
 stitution, form a body denominated the Board of Commissioners of the 
 Sinking Fund. This board has highly responsible duties to perform 
 in relation to the public debt of the State, and the management of the 
 sinking fund, with a view to the expeditious and final payment of the 
 public debt. The law, in organizing this board, directs that the Au- 
 ditor, Secretary of State, Treasurer, and Attorney-General shall con- 
 stitute the board, the Auditor to be the president, and the Secretary 
 of State the secretary thereof. They can be members of the board 
 only ex officio as heads of the several departments. They manage 
 the sinking fund, pay the interest upon the public debt, distribute 
 the residue toward the payment of the debt itself from time to time, 
 keep the books, records, and accounts in relation to these matters, 
 semi-annually report to the Governor the condition of the public debt 
 and the sinking fund, and their proceedings in relation to the same. Be- 
 sides these important duties, each of these officers has a vast amount 
 of duties to perform as the head of his department of the government. 
 The Secretary of State has the care and custody of the records of the 
 acts and resolqtions of the General Assembly, and of the archives of 
 the State generally; keeps records of, and countersigns, all commis- 
 sions issued, issues certificates of the appointments of officers, and per- 
 forms a vast amount of other duties referred to him by general and special 
 legislation. The Auditor is the financial officer of the State, and all 
 the taxes of the State, their collection and disbursement, are under his 
 care and supervision, through and by the aid of the officers of the sev- 
 eral counties. The Treasurer has the care and keeping of the finances 
 of the State, and is their receiving and disbursing officer. And the 
 Attorney- General has the supervision of the legal and judicial interests 
 of the State. 
 
 § 10. The executive officers of the several counties, who also attend 
 to the executive interests of the State in their several counties, are the 
 Sheriff and Coroner, Clerk, Auditor, Treasurer, and Recorder. These 
 officers are elected by the voters of the county at the annual election every 
 two 3'ears, except the Clerk and Recorder, who are elected every three 
 years, and serve accordingly, and until their several successors are elected 
 and qualified. The Sheriff is conservator of the peace in the county, is 
 
 1 State vs. Chase, 5 0. S. K. 528 ; 5 O. E. 358. 
 
CHAP. IX] EXECUTIVE OF THE STATE. 97 
 
 the executive officer of all the courts in the county, is authorized to 
 serve all writs, especially all criminal processes, and is the keeper of the 
 county jail. He has many duties to perform in relation to the county 
 elections and various matters connected with the county interests. 
 The Coroner serves in the absence of the Sheriff, and in cases where he 
 is interested, and both are authorized to appoint deputies. The Consti- 
 tution provides that the Sheriff shall be eligible only for four years in 
 a period of six. The Clerk officiates as clerk of the court of common 
 pleas, and is so designated, and also as clerk of the district court, and 
 as such has numerous duties to perform. The Treasurer of the county 
 holds the same relation to the county that the State Treasurer does to 
 the State. The Recorder is the officer whose duty it is to record the 
 deeds, mortgages, and conveyances of land in the county. But the most 
 responsible of these offices is that of County Auditor, both as to the 
 amount of business to be performed and its importance to the State and 
 people. He makes up the duplicates of all the taxes annually to 
 be collected in the respective counties for both State and county pur- 
 poses ; he issues all orders on the county treasury ; he audits and 
 allows all claims upon the county, where the rate of allowance is fixed 
 by law, and where they depend upon a prudential allowance they are 
 first to receive the approbation of the County Commissioners ; be keeps 
 all the accounts of the county, and the journal of the proceedings of the 
 County Commissioners ; ho is the person with whom the Auditor of 
 State has communication with the county in relation to taxes and 
 finances of the State and county, and also a vast amount of other duties 
 required of him by general and special laws. 
 
 § 11. But it is the Commissioners of the county who occupy the most 
 important official position in respect to the interest of the county. They 
 represent the corporation of the county; their duties are various; some 
 are executive, some prudential, and some judicial ; and they espe- 
 cially represent the financial 'and prudential interests of the county. 
 The Board of County Commissioners consists of three members, who 
 are elected at the annual general election for the term of three years, and 
 each until a successor is elected and qualified ; and their official term is so 
 regulated that one of the three commissioners is elected annually. The 
 Board of Commissioners holds four regular sessions annually, on the first 
 Monday in March, June, September, and December; at these sessions 
 the County Auditor is ex officio clerk of the board, and keeps a record 
 of all their proceedings. They have the supervision and care of the 
 county property, as the court-house, and other public buildings ; also 
 of roads, bridges, and public highways, of the infirmary and places for 
 the care of paupers and the insane. They establish and alter town- 
 ships, fix the amount of county taxes, supervise the assessments, and 
 have within their control and jurisdiction a vast amount of matters 
 
 7 
 
98 PUBLIC LA W. [BOOK i. 
 
 and interests in which the people and county may be deeply concerned ; 
 but from their decisions and orders there is an appeal, either to the 
 probate court or the court of common pleas ; or by a review of their 
 proceedings in any particular case, by proceeding in error in the court 
 of common pleas, as formerly in cases of certiorari. 
 
 § 12. The business and interests of the several townships are at- 
 tended to and supervised by a board of three trustees, a clerk, and 
 treasurer. The principal executive officers of the township for the ser- 
 vice of process and to preserve the peace, are two or more constables. 
 All these ofBcers are annually elected. The trustees have about the 
 same financial and prudential supervision and care of the affairs of the 
 township that the commissioners have of those of the county. The elec- 
 tion of township officers is held on the first Monday in April annually. 
 
 CHAPTER X. 
 
 JUDldlARY 01 THE STATE. 
 
 § 1. To the judiciary of the State belongs that general jurisdiction 
 that appertains to every independent government, except as limited 
 by those national matters and political subjects confided to the general 
 government of the Union. The judiciary of the United States, though 
 paramount and superior in relation to those special subjects confided 
 to them, on the account of their national interest, are still limited in 
 their jurisdiction to those matters specially given them in charge by 
 the Constitution of the Union ; but the judiciary of the State have that 
 general jurisdiction exercised by any government for the administration 
 of justice, and to. protect its people in their rights, and the enjoyment 
 of their lives, liberty, and property, restrained and limited only — first, 
 by the Constitution of the United States, and the treaties and laws of 
 the Union made in pursuance of it ; and, secondly, by the Constitution 
 of the State, and the laws made in conformity with it. 
 
 § 2. The Constitution of Ohio provides that the judicial powers of the 
 State shall be vested in a supreme court, in district courts, courts of 
 common pleas, courts of probate, justices of the peace, and in such 
 other courts, inferior to the supreme court, as the General Assembly 
 may establish. 
 
 §3. I. The supreme court consists of five judges, a majority of 
 whom form a quorum. Its original jurisdiction is quite limited, ex- 
 tending only to cases in quo warranto, mandamus, habeas corpus, and 
 
CHAP. X.] JUDICIARY OF THE STATE. 99 
 
 procedendo; and its appellate jurisdiction exists in such cases as may- 
 be provided by law. It holds one term annually at the seat of govern- 
 ment, which may be regulated by the legislature ; and it is the duty of 
 each of the judges, besides holding the term at Columbus, to officiate 
 on a circuit, as one of the judges of the district court in the counties 
 of the several districts of the State. 
 
 . § 4. II. The State is divided into nine common pleas districts, of 
 which Hamilton county is one, and each district, when consisting of 
 three or more counties, shall be subdivided into three parts or subdis- 
 tricts, in each of which, one judge of the court of common pleas for the 
 district, and residing therein, shall be elected by the electors of the 
 subdivision. Courts of common pleas are to be held by one or more 
 of the judges in every county in the district, as often as provided by 
 law; and more than one court may be held at the same time in each 
 district.^ The jurisdiction of the common pleas, and the judges thereof, 
 is to be fixed by law. 
 
 § 5. III. The district court is composed of the judges of the common 
 pleas of the respective districts, and one of the judges of the supreme 
 court, any three of whom shall be a quorum, and shall be held in each 
 county at least once a year. This court has the like original jurisdic- 
 tion with the supreme court, and such appellate jurisdiction as may be 
 provided by law. 
 
 § 6. IT. There is established in each county a probate court, as a 
 court of record, opened at all times, and holden by one judge, elected 
 by the voters of the county for the term of three j'ears. This court 
 has jurisdiction in probate and testamentary matters, the appoint- 
 ment of administrators and guardians, the settlement of accounts in 
 I'elation to decedents' estates, and to guardians and wards, in cases of 
 habeas corpus, the granting of license in cases of marriage, and to per- 
 sons to solemnize them, and such other matters as may be provided by 
 law. 
 
 § 7. The judges of the supreme court are elected by the electors of 
 the State by a general ticket, and hold their office for the term of five 
 years, and are so classified that one is elected at each annual election of 
 the State. The judges of the common pleas are elected by the electors 
 of the subdivision of their district, and serve for a term of five years ; and 
 the judges of the probate court are elected by the electors of their re- 
 spective counties for the term of three years. When the office of any 
 judge becomes vaca'nt, it is to be filled by appointment by the Governor, 
 until a successor is elected and qualified, who shall be elected for the 
 unexpired term at the first annual election occurring more than thirty 
 days after the vacancy happened. 
 
 1 They usually hold three terms annually in each county. 
 
100 PUBLIC LAW. [book I. 
 
 § 8. The judges of the supreme court and common pleas are to receive 
 at stated times such compensation as may be provided by law, which 
 shall not be increased or diminished during their term of office, but they 
 shall receive no fees or perquisites, nor hold any other office of profit or 
 trust under the State or the United States ; and all votes given to either, 
 except for a judicial office under the State, are void. Judges may be re- 
 moved by the concurrent resolution of both houses of the General As- 
 sembly, if two-thirds of the members elected to each house concur; but 
 no such removal shall be made except upon complaint entered upon the 
 journal, nor until the party charged shall have had notice, and an oppor- 
 tunity to be heard. The judges may exercise at chambers such powers 
 as may be directed by law. 
 
 § 9. A clerk of the court of common pleas is to be elected in each 
 county for the term of three years, and until his successor is elected and 
 qualified, by the electors at the annual election, who, by virtue of his 
 office, is to be clerk of all the other courts of record in the county ; but 
 the General Assembly may provide by law for the election of a clerk 
 for any of the courts of record. 
 
 § 10. Such are the constitutional provisions for the organization of 
 our State judiciary. In accordance with the legislative acts, and the 
 practice and decisions of the courts, there has been built up and per- 
 fected a system for the administration of justice which, as far as prac- 
 ticable, shall be here delineated as it now exists. 
 
 § 11. The supreme court consists of five judges, as provided by the 
 Constitution, any three of whom constitute a quorum for business, and 
 the judge whose term of office first expires, who was not elected to fill 
 a vacancy, is the chief justice and presiding officer of the court. This 
 court holds but one term annually, which is at Columbus. It has a 
 clerk and other officers usual to such court. It is usually attended by 
 the Attorney-General and the reporter of its decisions, whose reports 
 now number some forty volumes ; and the practice of the court is regu- 
 lated by a code of rules, adopted from time to time, as exigency requires, 
 to regulate its mode of transacting business, and its practice. Almost 
 the entire business of the supreme court is upon its appellate jurisdic- 
 tion in cases of error from the subordinate courts, and upon cases and 
 questions reserved in the district courts and certified to this court for 
 final decision. The cases that are thus brought into the court for de- 
 cision are entered upon the docket, and heard in their regular order. 
 The cases on trial are frequently argued orally in open court, but more 
 frequently the arguments of counsel are transmitted to the court. in 
 writing, and carefully examined by the court in its investigation of the 
 case. At stated times the court is in open session, and after having 
 heard a number of cases, it pronounces its decision in such cases as have 
 been investigated, and are ready for judgment. 
 
CHAP. X.] JUDICIARY OF THE STATE. 101 
 
 § 12. The district court is held once annualJy in each county, usu- 
 ally dm-'mg the summer vacation of the supreme court, and it is held 
 by one of the judges of the supreme court and three judges of the 
 court of common pleas, of whom any three form a quorum. The 
 cases in this court are mostly those that come up in review from the 
 court of common pleas on error and appeal; and, as the judges of the 
 common pleas are tlie controlling elements in this, and take in review 
 their own several decisions, this is not a very satisfactory court ar- 
 rangement. Many years ago a similar system was tried in Penn- 
 sylvania, and long since abolished on account of the same objection; 
 and of which Judge Brackenridge said, that it was much like Cotton 
 Mathers two-headed snake, that sometimes went with one head for- 
 ward, and sometimes the other. When one of the judges of the supreme 
 court is present, he presides in this court, but in his absence it is pre- 
 sided over by the judge of the common pleas in whose subdistrict it 
 may then happen to be, or as the court, by a standing rule, may direct. 
 The State is divided into five judicial districts, so that it may be conve- 
 nient for some one of the judges of the supreme court to preside in 
 the district court in each county of the district. 
 
 § 13. The judge of the common pleas presides over the court in his 
 subdistrict, but he has jurisdiction to hold a court in any county within 
 his district; and the judges themselves arrange the holding of the courts 
 in their several districts. Three terms of this court are usually held in 
 each county, besides the one term of the district court. The court of 
 common pleas is the great court of the county, in which almost all the 
 litigated judicial business in the county is originally commenced, and 
 in ordinary matters is'the court of original jurisdiction, both at law 
 and in equity, from which almost all the business of the district and 
 supreme court is brought by petition in error or some appellate pro- 
 ceedings. 
 
 § 14. The common pleas has jurisdiction in all civil cases, both at law 
 and in equity, where the sum or the matter in dispute exceeds the juris- 
 diction of justice of the peace, and appellate jurisdiction from the pro- 
 bate court, county commissioners, justice of the peace, and other in- 
 ferior courts of the county. It has original jurisdiction of all crimes 
 and ofTenses, except minor offenses exclusively vested in some inferior 
 courts. It also has jurisdiction in all cases of divorce and alimony. 
 
 § 15. The probate court has exclusive jurisdiction in the probate and 
 recording of wills; in the granting of letters testamentary and of ad- 
 ministration; in the appointment of guardians; in the holding of in- 
 quest in cases of insanity and idiocy; to hear appeals in cases of appro- 
 priation of lands for roads, railroads, and drains ; to settle all accounts 
 in cases of administration of decedent's estate, guardians, and assignees, 
 and to order distribution in these cases ; and also in cases of habeas cor- 
 
102 PUBLIC LA W. [book i. 
 
 pus, it has concurrent jurisdiction with the judges of the supreme court 
 and of the judges of the court of common pleas. 
 
 § 16. Besides these courts of general jurisdiction, there are "supe- 
 rior courts" in several of the large cities, whose jurisdiction, within 
 their respective corporations, is very similar to that of the common 
 pleas in civil matters; also courts held by mayors and other officers in 
 towns and cities ; also justices of the peace, whose very numerous 
 powers and duties render them important officers in the administra- 
 tion of justice in their several townships and counties. They are the 
 principal conservators of the peace, and have extensive jurisdiction in 
 both civil and criminal matters — the hearing and examination of crim- 
 inal cases preparatory to a trial in the common pleas, and final trial 
 and punishment in minor offenses ; and in civil cases, in ordinary mat- 
 ters at law, have important and wide-spread jurisdiction. 
 
 § It. The powers and jurisdiction of a justice of the peace are various 
 and numerous, but are particularly pointed out and defined bj' the statute. 
 In criminal matters their jurisdiction is coextensive with their respec- 
 tive counties, but in civil matters it is generally confined to their town- 
 ships. Besides criminal cases, their jurisdiction is coextensive with the 
 county in cases of attachment for debt ; in actions for forcible entry and 
 detainer; in actions of replevin ; in issuing executions upon their own 
 judgments ; and in cases of trespass to real or personal property, the 
 action may be brought in the township where the trespass was com- 
 mitted, or in the township where the trespasser, or any one of several 
 defendants, may reside. In civil cases, justices, under the restrictions 
 and limitations of the statute, have exclusive original jurisdiction of 
 any sum not exceeding one hundred dollars, ancl concurrent jurisdiction 
 with the common pleas of any sum over one hundred and not exceeding 
 three hundred dollars. 
 
 § 18. Justices have no cognizance of any action for assault or assault 
 and battery ; or for malicious prosecution ; or against justices of the 
 peace, or other officers, for misconduct in office ; or for slander, verbal 
 or written ; or on contracts for the sale of real estate ; or where the 
 title to real estate is sought to be recovered, or may be drawn in ques- 
 tion, except in cases of trespass. Thus it appears that the jurisdiction 
 of justices is very extensive and important, and a large portion of the 
 judicial business passes through their docket, though considerable of it 
 afterward finds its way into the common pleas through its appellate 
 jurisdiction. 
 
 § 19. It has often been difficult to determine whether, in certain cases, 
 the justice had jurisdiction or not, and how far it is necessary to show 
 on the face of his proceedings that he had jurisdiction of the case ; for if 
 the case be out of his jurisdiction, the proceedings of course are null and 
 void. The supreme court has said that, where jurisdiction is specially 
 
CHAP, x-l JUDICIARY OF THE STATE. 103 
 
 given to a court by statute, which is to be resorted to only on the recur- 
 rence of particular facts, those facts must be shown by the record ; for 
 how*ver correct it may be to presume jurisdiction where the want of it 
 does not appear, in eases within the general jurisdiction of the court, yet, 
 where the jurisdiction is created by statute, and limited to particular 
 cases of which the court could not take cognizance without the statute, 
 the jurisdiction cannot be presumed, but should be shown in the record.^ 
 Although justices have no jurisdiction in actions on real contracts, or 
 in which the title to land was drawn in question, yet, where it was un- 
 necessary for the plaintiff, in the first instance, to introduce proof of 
 title in order to Aake out his cause of action, the justice has jurisdic- 
 tion, which the defendant cannot take away by introducing proof of 
 title: as in cases of trespass, or on contract to clear land, to build a 
 house, or to pay rent, and the like. The jurisdiction of the justices is 
 looked upon with great favor as of much usefulness to the people, and 
 their proceedings have been treated with great leniency by the higher 
 courts in reviewing upon error ; when mere technical objections are 
 generally disregarded where matter of substance has been observed.^ 
 
 § 20. The common j:ijeas (as has been stated) is a court of general 
 original jurisdiction. The district court and supreme court have but 
 little original jurisdiction, i.e. the power to bestow the right upon 
 suitors to commence and originate their suits and actions in those 
 courts, — for their powers generally consist in their appellate jurisdiction, 
 — to review and correct the proceedings of the inferior courts that may 
 be brought by petitions in error and appeals, and cases in quo warranto 
 and mandamus. The supreme court, being the highest judicial tribunal 
 of the State, has the general supervision over the courts of the State as 
 the court of dernier ressort. 
 
 § 21. These courts, constituting the judiciary of the State, have full 
 power, that may appertain to any independent government, to hear and 
 determine any and all cases affecting the rights of any person, his per- 
 son, his property, or his immunities, according to the laws of the State, 
 save only that they are bound to conform in their decisions to the Con- 
 stitution and laws of the TJuited States as the supreme law of the land ; 
 and it has been seen in what special instances and for what special pur- 
 poses the Constitution and these laws are made thus supreme. And 
 therefore, whenever, in a case pending in our courts, a question arises 
 under the Constitution or laws of the United States, and it is decided 
 against the claim made under it, there is an appellate jurisdiction in 
 the Supreme Court of the United States to review the question by an 
 
 1 Edrninston vs. Edjjiinston, 2 0. E. 2.51 ; Nichols vs. Patterson, 4 0. B. 200. 
 
 2 Armstrong vs. Harvej', 11 0. S. E. 527; Bhick vs. Chessor, 12 0. S. E. 621; 
 Hallaman vs. Crow, 15 0. S. E. 176. 
 
104 PUBLIC LAW. [book i. 
 
 appeal or proceedings in error, and thereby preserve the integrity of 
 the Constitution and laws of the Union. 
 
 § 22. Although the courts of the State are bound by the Constitution 
 and laws of the United States, and to receive the decisions and con- 
 structions of the Supreme Court of the United States as authoritative 
 and conclusive as to questions arising under their Constitution and 
 laws, yet the instances where any conflict can arise between the two 
 systems are few; for the whole subject of the government of the United 
 States only refers to such national and general objects as were necessary 
 and proper to be controlled by the general government of the Union ; 
 whereas the State courts have a general jurisdiction over every subject 
 that constitutes the object of judicial investigation in the ordinary affairs 
 of life. Whenever a claim of right may incidentally arise in the supreme 
 court of the State, as being conferred by the Constitution and laws of 
 the Union, and the right is denied, the question may be taken up to the 
 Supreme Court of the United States as an appellate court ; and when- 
 ever a question incidentally arises in the United States courts involving 
 the rights of person or property, that ordinarily belong to the State 
 jurisdiction, though there be no appellate jurisdiction in the State courts 
 over those of the Union, yet those courts universally conform their de- 
 cisions to those of the State, as the proper tribunals to determine them, 
 however they may differ from them in their opinion as to the correct- 
 ness of the decision. Thus the two systems are harmonized, and thereby 
 rendered one consistent whole. 
 
 § 23. Any of those subjects that are properly objects of national legis- 
 lation may be by an act of Congress conferred upon the jurisdiction of 
 their own courts, but cannot, as a general rule, be conferred upon the 
 State courts ; yet the State courts do frequently* aid in carrying out the 
 laws of Congress, as in the recovery and enforcement of rights and 
 penalties under the laws of the Union. This, however, must be a mat- 
 ter more of comity than of strict right, for frequently the State courts 
 have refused jurisdiction of cases arising wholly under the legislation 
 of Congress ; upon the principle, that, as the Union has its proper courts, 
 as the States have theirs, it would be inconsistent with the arrangement 
 for Congress to overload or derange the State courts with business of 
 their creation. Still, as we have just remarked, the State courts do 
 frequently attend to business arising wholly under the legislation of 
 Congress, as under the naturalization laws, pension laws, and some 
 laws creating certain rights and penalties. 
 
CHAP. X.] JUDICIARY OF THE STATE. 105 
 
 JTJEISDICTION IN GENERAL. 
 
 § 24. Whenever there has been the exercise of legislative power, 
 there must be some court that has jurisdiction to determine and make 
 available every right under it, or there is a want of justice. Courts of 
 general jurisdiction are presumed to have the power to hear and de- 
 termine the case, unless there be some special restrictions npon them. 
 Questions of jurisdiction are generally only raised as to inferior courts, 
 or courts of limited or special jurisdiction. There is scarcely ever an 
 admitted right without some court with power to enforce it. 
 
 § 25. Jurisdiction is the power of a court to hear and determine a 
 cause properly brought before it. Where the court has jurisdiction of 
 the subject-matter and the form of the action, and the parties are be- 
 fore the court by proper process, its judgment in the case, though erro- 
 neous, is not void ; the jurisdiction is not ousted by the erroneous ex- 
 ercise of the powers it assumes. There is a distinction between a want 
 of power or jurisdiction in a court, and a wrongful or defective execu- 
 tion of that povver.^ In the first instance, all acts of the court not 
 having jurisdiction or power are void ; in the second, voidable only. 
 A court, then, may act — first, without power or jurisdiction ; secondly, 
 having power or jurisdiction, it may exercise it wrongfully ; or, thirdly, 
 irregularly. In the first instance, the act or judgment of the court is 
 wholly void, and is as though it had not been done. The second is 
 wrong, but can only be reversed on proceedings in error. The third is 
 irregular, and can only be corrected by a motion in the same court. 
 The latter is where the power is rightfully exercised, but in an irregu- 
 lar wav. Hence there is a vast distinction between a defect of power, 
 a wrongful exercise of power, and an irregular exercise of it. In the 
 first instance, the want of jurisdiction and the proceedings being void, 
 advantage of objection may be taken of it in a collateral proceeding; 
 but in the latter two it cannot, except upon error or motion. 
 
 § 26. Thus, where there is a want of jurisdiction, the proceedings 
 being void, advantage may be taken of it at anytime that there maybe 
 an occasion to raise the objection, even where it comes up in a col- 
 lateral matter, and in a different court. This want of jurisdiction may 
 exist in two respects ; — want of jurisdiction or power in the court itself, 
 or want of jurisdiction over the parties. Where the first objection 
 exists, there can be no waiver of the objection or admission of the par- 
 ties, for it is an established principle that admission or consent cannot 
 confer jurisdiction on a court. In the second place, there may be a 
 lack of jurisdiction equally fatal, for the want of jurisdiction over the 
 parties ; as where they have not been duly summoned, or are not 
 
 1 O. Dig. 450; 15 0. E. 435; 17 Ibid. 409; 1 0. S. E. 369; 13 Ibid. 446. 
 
106 PUBLIC LAW. [book I. 
 
 properly parties before the court, so that, as it is said, they have had 
 no day in court. This is based upon the universal principle that a 
 person' is not precluded by any proceedings against him unless he has 
 had an opportunity to answer for himself; unless it may be in a pro- 
 ceeding in rem, where the thing itself has been brought within the 
 jurisdiction of the court. The parties may be brought before the court 
 in person, by process of capias, or process of aummons, or, in cases 
 where the law specially provides for it, by an advertisement. When 
 the party is thus duly summoned, or voluntarily makes his appearance, 
 and has had bis day in court, if he does not raise his objection, it will 
 be presumed that he waives it ; and it is his own fault if he does not 
 raise the objection. 
 
 § 27. There is a distinction, again, between want of jurisdiction for 
 lack of power in the court, and the lack of jurisdiction over the parties ; 
 for the latter may be waived, or cured by appearance, and proceedings 
 permitted to progress Mithout raising the objection ; but jurisdiction 
 or power in the court cannot be waived or conferred by the parties 
 by anything they maj' or may not do. The first is a mere personal 
 privilege; the latter is not, but depends upon the law and power of the 
 court. When the jurisdiction has attached, the right to hear and deter- 
 mine is perfect, and the decision of every question thereafter arising is 
 but the exercise of the jurisdiction thus conferred ; and whether it is 
 determined rightfully or wrongfully, correctly or erroneously, is imma- 
 terial to the validity and force of the final judgment when brought 
 collaterally in question.^ The question can only be raised by a motion 
 in the same court to correct or amend irregularities, or by proper pro- 
 ceedings in error to reverse it.^ 
 
 1 0. Dig. 452 ; 3 0. S. E. 494. 
 
 2 See further, as to jurisdiction of the State and the United States court, ante, 
 cnap. V. g 1-14, and post, Pleading, book ill. chap. v. J 21-32. 
 
CHAP. XI.] INCIDENTAL POWERS AND LIMITATIONS. 107 
 
 CHAPTER XL 
 
 INCIDENTAL POWERS AND LIMITATIONS. 
 
 § 1. There .are many subjects inoirlfintally connected with all independ- 
 ent governments as proper objects of legislation, and requiring more or 
 less protection or restraint,— such as the currency, weights and meas- 
 ures, commerce, and the like, — which have been regarded as subjects of 
 national interest, and have been here, in a great measui-e, surrendered to 
 the legislation of Congress. But there are other objects, which are 
 equally interesting, and more intimately connected with us as private 
 citizens, and dear to us as immediately connected with our rights and 
 liberties — as our political rights, our domestic relations, our right of 
 locomotion and the free exercise of our faculties, as well as our right 
 of property; these, and the great variety of subjects connected with 
 them, are the proper subjects of our State legislation and care. 
 
 § 2. Besides these objects that particularly concern us as private citi- 
 zens merely, there are numerous objects of interest to the public in gen- 
 eral that are also objects of State legislation, — as corporations for banks, 
 for roads, railroads, and canals, for manufacturing and the like; corpo- 
 rations of towns, and the division of the State for municipal purposes ; 
 these, and the like public institutions and artificial persons, are left 
 almost entirely to the State legislation. Congress has never interfered 
 with them in any instance, except in the case of the United States Bank, 
 and in a few instances of roads and canals, as subjects warranted by the 
 Constitution of the United States to be within its legislative powers, — 
 the first as necessary and proper to carry on its financial operations, and 
 the second as necessary for the carrying the United States mail, and con- 
 ducting the military operations of the nation.' 
 
 § 3. The State being possessed of all the powers incident to any in- 
 dependent state and government, except so far as it is limited and re- 
 strained by the Constitution of the United States or its own, it becomes 
 necessary and proper to consider, first, those limitations; for beyond 
 those restraints the powers of the State will be such as usually ap- 
 pertain to any government. The powers of the United States, which 
 are supreme, though limited in their objects, are, of course, restraints 
 upon the powers of the States ; for evidently the State cannot exercise 
 power or authority that has been exclusively given to the general gov- 
 
 1 See ante, B. i. chap. vii. §. 6 and 7. 
 
108 PUBLIC LA W. [book i. 
 
 ernment; or where the authority to legislate on the, subject has been 
 given to them, and they have exercised that authority, the State cannot 
 legislate upon the same subject so as to be in the least degree incon- 
 sistent with it; and it is generally conceded that when Congress has 
 legislated on a subject it is equivalent to declaring the extent of the 
 intended legislation; at least, that there must be nothing contrary 
 to it. Thus, Congress has power to fix weights and measures. As 
 Congre.'js has only directed the distribution of certain weights and meas- 
 ures, and does not, apparently, occupy the whole ground, the State has 
 passed an act regulating weights and measures. But Congress having 
 the power to establish a uniform rule of naturalization, and having 
 adopted a law upon the subject, it is considered that any legislation of 
 the State on the same matter would be inconsistent; for Congress hav- 
 ing declared in what manner such naturalization should be accom- 
 plished, it is equivalent to saying it should bo in no other; and therefore 
 supersedes all legislation on the part of the State on that subject. 
 
 § 4. The powers of Congress thus to legislate on the part of the 
 United States having been enumerated, it will be well now to ascer- 
 tain what positive restraints there are upon the legislation and powers 
 of the State, first, by means of the Constitution of the United States, 
 and next by our own Constitution, before enumerating some of the 
 objects over which the State has incidental power and authority. 
 
 § 5. The Constitution of the United States declares that no State 
 shall enter into any treaty, alliance, or confederation; grant letters of 
 marque and reprisal ; coin money ; emit bills of credit; pass any bill of 
 attainder, ex post facto law, or law impairing the obligation of contracts, 
 or grant any title of nobility ; nor, without the consent of Congress, lay 
 .any impost or duties on imports or exports, except what may be abso- 
 lutely necessary for executing its inspection laws, and all such shall be 
 for the use of the United States, and subject to the revision and control 
 of Congress ; nor shall any State, without the consent of Congress, lay 
 any duty of tonnage, keep troops or ships of war in time of peace, enter 
 into any agreement or compact with another State, or with a foreign 
 power, or engage in war, unless actually invaded, or in such imminent 
 danger as will not admit of delay. These restrictions are direct and 
 positive, and require no comment. 
 
 § 6. Tliese restraints and limitations upon the State, found in the 
 Constitution of the United States, arc mostly adopted on account of the 
 national objects to which they refer ; or on account of the personal in- 
 terest that they have to every individual in the whole community; 
 and for the purpose of securing the special benefits of each to all, the 
 same provisions are, in many instances, secured in the State Con- 
 stitution. It will be impossible, in the limited extent of this analysis, 
 to comment on all the various povi^crs, and their limitations and restric- 
 
CHAP. XI.] INCIDENTAL POWEBS AND LIMITATIONS. 109 
 
 tions, beyond what has already been done ; but from them to select the 
 following particulars : 
 
 § 7. I. The Comtitution iiseJf bus its own limitation, as well as that 
 upon the State. It provides how it maybe amended; and this is a 
 necessary provision, for without it no amendment or reform could take 
 place without the danger of a revolution. He who submits to its pre- 
 scribed form of amendment, submits only to the will and determina- 
 tion of the majority. The Constitution therefore provides :' "Each 
 branch of the General Assembly may propose amendments to this Con- 
 stitution, and if the same shall be agreed to by three-fifths of the mem- " 
 hers elected to each house, it shall be entered on the journals, with the 
 yeas and nays, and be published . . . for six months preceding the 
 next election for Senators and Eepresentatives, at which time it shall 
 be submitted to the electors for their approval or rejection, and if a ma- 
 jority of the electors shall adopt it, the same shall become a part of the 
 Constitution." It also provides that whenever two-thirds of each 
 branch shall think it necessary to call a convention to revise, amend, 
 or change the Constitution, they shall recommend to the electors to 
 vote at the next election for or against a convention, and if carried, the 
 General Assembly at their next session shall provide for calling the 
 same, the convention to consist of as many members as the House of 
 Representatives, and to be chosen in the same manner. The Constitu- 
 tion further provides that the same question shall be submitted to the 
 electors in the year 1871, and in each twenty years thereafter, and if 
 carried, a convention is to be called in the same manner ; but no such 
 amendment shall take effect until it is submitted to the electors, and 
 adopted by a majority of those voting thereon. 
 
 § 8. A new Constitution creates no new State. It only alters, in 
 some respects, the fundamental laws of the State, in pursuance of some 
 pre-existing laws, under which the new Constitution is framed. It 
 follows that all laws in force when the latter took effect, and which 
 were not inconsistent with it, will remain in force without an express 
 provision to that effect ; and it is only such laws as are found to be in- 
 consistent with it that become null, and that upon the principle of 
 repugnancy ; but, as in all other cases of repugnancy, the inconsistency 
 of a law must be necessary and obvious in order to cause it to fall, for 
 if the law and Constitution can, by any fair course of reasoning, be re- 
 conciled, the law must stand. ^ 
 
 §9. The provision in the Constitution which declares that "the 
 legislative power of the State is invested in the General Assembly," is 
 very different from what it would be if it read, such powers as are con- 
 
 1 Const., Art. xvi. § 1, 2, and 3. a Cass vs. Dillon, 2 0. S. E. 607. 
 
110 PUBLIC LA W. [book i. 
 
 ferred by the ConstUidion, for it now includes all that maybe assumed 
 .as the legislative authority of the State. This includes all legislative 
 power which the object and purpose of the State government may 
 require, unless in other portions of the Constitution it is found that 
 this legislative discretion is qualified and limited. Hence the differ- 
 ence between the Constitution of the United States and our State 
 Constitution. In the former, we look to see if the power is expressly 
 given ; in the latter, to see if it is denied or limited. And though 
 it is the right and duty of judicial tribunals to give full force and 
 effect to the organic laws of the State, and to declare null andxvoid 
 any attempted act of legislation which contravenes the limitation im- 
 posed by the Constitution upon legislative power, or by the Consti- 
 tution and laws of the Union, yet such judicial interference can only be 
 justified in cases free from doubt, for the presumption must always be 
 in favor of the validity of the law, if the contrary is not clearly demon- 
 strated.' 
 
 § 10. II. Appropriations to be made on the part of the State are 
 limited in various ways by the Constitution, which declares — (I) "No 
 money shall be drawn from the treasury except in pursuance of a spe- 
 cial appropriation made by law, and no appropriation shall be made for 
 a longer period than two years." (2) " No extra compensation shall be 
 made to any officer, public agent, or contractor, after the service shall 
 have been rendered or the contract entered into, nor shall any money be 
 paid on any claim, the subject-matter of which shall not have been pro- 
 vided for by pre-existing law, unless such compensation or claim be 
 allowed by two-thirds of the members elected to each branch of the 
 General Assembly." (.3) "No right of way shall be appropriated to 
 the use of any corporation until full compensation therefor be first made 
 in money, or first secured by a deposit of money to the owner, irre- 
 spective of any benefit from any improvement proposed by such corpo- 
 ration, which compensation shall be ascertained by a jury of twelve 
 men in a court of record, as shall be prescribed bj' law.'-^ (4) "Private 
 property shall ever be held inviolate, but subject to public welfare. 
 When taken in time of war or other public exigency, imperatively re- 
 quiring its immediate seizure, or for the purpose of making or repairing 
 roads, which shall be opened to the i)ublic without charge, a compensa- 
 tion shall be made to the owner in money ; and in all other cases where 
 private property shall be taken for public use, a compensation therefor 
 shall be first made in money, or first secured by deposit in money, and 
 
 I Baker vs. Cincinnati, 11 O. S. 11. 5-34 j Lehman vs. McBride, 15 O. S. R. 
 073-591. 
 
 s See Const., Art. ii. I 22 and 29 ; Art. xii. ? 5, and Art. i. J 19. 
 
CHAP. XI.] INCIDENTAL POWERS AND LIMITATIONS. HI 
 
 such compensation shall be assessed by a jury, without any deduction 
 for benefits to any property of the owner." 
 
 § 11. These provisions of the Constitution may be divided into two 
 parts: first, appropriation of money from the public treasury; and 
 secondly, appropriation of private property for public use. Under the 
 first, the sole power of making appropriations of the public revenue is 
 vested in the General Assembly. No claim against the State can be 
 paid, no matter how just, or how long it may have remained due, unless 
 there is a special appropriation made by law to meet it. And this is 
 true, although sufficient revenue has been provided for debts accruing 
 or past due. It has been held, therefore, that where the officers of the 
 State by contract stipulated to pay on the part of the State yearly, for 
 five years, a large amount of money for the repairs of the canals of the 
 State, it was contravening the provisions of the Constitution. No 
 officer, therefore, except in cases specially provided for by the Consti- 
 tution, can enter into contract whereby the General Assembly two 
 years afterwards will be bound to make appropriation, either for a par- 
 ticular object or a fixed amount; for that power devolves upon the dis- 
 cretion of each General Assembly for each period of two years, and it 
 should remain intact' 
 
 § 12. Secondly, as to the appropriation of private property to public 
 or corporate uses, it must be admitted that this power, for the purpose 
 of promoting the general welfare, is inherent in every government ; 
 but the power must be exercised in cases and for objects strictly pub- 
 lic ; and the Constitution of the United States, and of this State, se- 
 cures this principle of natural justice, that the owner of such property 
 shall receive his compensation. This power, of so appropriating private 
 property, is frequently called the power of eminent domain, and is an 
 inseparable incident of every sovereignty; and in the grant of legisla- 
 tive authority, it is conferred upon the General Assembly for the pur- 
 pose of accomplishing lawful objects ; but such proceedings must be 
 controlled by these provisions of the Constitution. Where such appro- 
 priation is made either for public use, for general purposes, or for roads, 
 the owner is entitled to have his compensation assessed by a jury; and 
 where that is demanded in accordance with the requirements of the 
 Constitution, it means a tribunal of twelve men, presided over by a 
 court, who are to hear the allegations, evidence, and arguments of 
 the parties ; and the jury may be sent to inspect the premises. Such 
 compensation must be so assessed in every case in money, without de- 
 duction of benefits that would be in common with other persons, — in 
 cases of roads as well as others. But such assessments may be made 
 in the first instance by commissioners or viewers, provided a right of 
 
 1 The State us. Medbury, 7 O. S. K. 522-29. 
 
112 PUBLIC LAW. [book I, 
 
 appeal is given to a court in which they may be assessed by a consti- 
 tutional jury.^ 
 
 § 13. III. Counties and municipal divisions of the State are regu- 
 lated by legislative authority as an incident, with but few limitations. 
 The Constitution provides that no new county shall contain less than 
 four hundred square miles of territory. Laws creating counties, altering 
 lines, or removing county seats, must be submitted to a vote of the 
 electors of the county affected by the measure. Any county containing 
 one hundred thousand inhabitants may be divided, but no city or town 
 shall be thereby divided, nor either division reduced below twenty thou- 
 ■ sand inliabitants.^ The State shall never assume the debt of any 
 county, city, town, or township, or of any corporation, unless such debt 
 shall have been created to repel invasion, suppress insurrection, or 
 defend the State in war. The General Assembly shall provide for the 
 organization of cities and incorporated villages by general laws, and 
 restrict their power of taxation, assessment, and contracting debts, so 
 as to prevent its abuse. Nor shall they ever authorize any county, 
 city, town, or township, by a vote of its citizens or otherwise, to become 
 stockholders in any corporation or association whatever, or aid it by 
 means of credit.' 
 
 § 14. Such are the restraints put upon political and municipal corpo- 
 rations and their creation of debts, by the constitution; but the courts 
 have held that these provisions do not prevent municipal corporations 
 from making assessments for the purpose of improving streets and side- 
 walks, assessed upon the grounds immediately benefited, in proportion 
 to such benefits ; and so may assessments be authorized for the con- 
 struction of free turnpike roads, and opening drains.* There is an im- 
 portant distinction to be made between the limitations and restrictions 
 on taxation, and assessments of this kind. The constitution uses both 
 terms ; but the latter term has always been applied to assessments 
 for the purpose of making such improvements ; and the fact that the 
 legislature is authorized to restrict such assessments from abuse, affords 
 the strongest implication of the existence of the po-wer. Corporations 
 invested with the powers usually conferred upon them, must neces- 
 sarily have the power to bind the corporation for money borrowed, 
 though no express power be given by the law of the corporation.* 
 
 § 15. IV. Corporations are objects of legislative creation and care. 
 
 1 7 0. S. K. 220; 4 Ibid. 167; Ibid. 494; 2 0. S. E. 296; 5 Ibid. 160; Young 
 vs Buckingham, 5 0. E. 485; O. Dig. 229. 
 
 2 Art. ii. § 30. ' 
 
 ' Art. viii. § 5 and 6 ; and Art. xiii. ^ 6. 
 
 * ScoviU vs. City of Cleveland, 1 0. S. E. 127; Hill vs. Higdon, 5 Ibid. 243; 
 Keeves vs. Wood County, 8 0. S. E. 833. 
 6 0. Dig. 226, g 384. 
 
CHAP. XL] INCIDENTAL POWERS AND LIMITATIONS. 113 
 
 The Constitution provides that the General Assembly shall pass no 
 special acts conferring corporate powers; but corporations may be 
 formed under general laws, and such laws may from time to time be 
 altered or repealed. Dues from corporations shall be secured by indi- 
 vidual liability as may be prescribed by law; but each stockholder shall 
 be liable, over the stock by him owned, for any amount unpaid, to a 
 further sum, at least equal in amount to such stock. And no act of the 
 General Assembly, authorizing associations with banking powers, shall 
 take effect until it has been submitted at a general election, and ap- 
 proved by a majority of all the electors voting at such election.' 
 
 § 16. The courts hold that the creation of corporate bodies as an arti- 
 ficial person for the purpose of more conveniently doing business, is a 
 power inherent in the legislative department of the government, and 
 does not depend upon these provisions of the Constitution, but these 
 restrictions merely limit their general powers upon the subject. The 
 General Assembly, therefore, possesses the constitutional power to 
 confer upon a corporation authorized to construct a railroad, the right 
 to appropriate ground necessary for its use. The exercise of this 
 power of eminent domain is not conferred by these constitutional pro- 
 visions, but they simply prescribe limitations upon the general powers 
 in the exercise of it.^ A county may not improperly be called a quasi 
 corporation, for in many respects it is like a corporation. But it is 
 not a corporation, but a mere political organization within and for the 
 State, and can neither sue nor be sued except by express power con- 
 ferred by statute and in the manner so expressed. The county com- 
 missioners, who represent the prudential concerns of the county, are 
 the only officers who can sue or be sued on behalf of the county, and 
 this power is conferred on them by statute. 
 
 § 11. V. Education and religion are matters especially cared for in 
 the Constitution. It declares that all men have a natural and inde- 
 feasible right to worship Almighty God according to the dictates of 
 their own conscience. No religious test shall be required as qualifica- 
 tion for office, nor shall any person be incompetent to be a witness on 
 account of his religious belief; but this shall not be construed to 
 dispense with oaths and affirmations. Religion, morality, and knowl- 
 edge being essential to good government, it shall be the duty of the 
 General Assembly to pass suitable laws to protect every religious de- 
 nomination in the peaceable enjoyment of its own mode of worship, 
 and to encourage schools and the means of instruction.' 
 
 § 18. Accordingly, the General Assembly has, from time to time, 
 
 1 Art. xiii. ? 1, 2, 3, and 7. 
 
 2 Grory vs. Cincinnati R. R. Co., 4 0. S. R. 308. 
 s Const. Ohio, Art. i. § 7. 
 
 8 
 
114 PUBLIC LAW. [book I. 
 
 passed and improved a code of laws for the protection and encourage- 
 ment of schools and education, and given to these institutions the most 
 efficient aid. To religious associations, the most efficient protection is 
 provided for the enjoyment of their religious exercises, and the protection 
 of their property in their corporate name, without the least distinction 
 as to denomination. While our courts protect the rights of all churches 
 alike, without distinction, they will not take cognizance of their doc- 
 trines in order to determine whether there is any departure from their 
 original profession; therefore, where there is a secession, it is deter- 
 mined that the majority of a society have a right to control their cor- 
 porate property in its use and occupation, of which they cannot be 
 deprived by any supposed error of doctrine.' 
 
 § 19. YI. In regard to justice, the Constitution has conferred upon 
 the legislative powers of the State many positive duties, as well as re- 
 strictions and limitations. It has provided that the General Assembly 
 shall grant no divorce, nor exercise any judicial power not expressly 
 conferred.^ The privilege of the writ of habeas corpus shall not be sus- 
 pended, unless, in cases of rebellion or invasion, the public safety require 
 it. All persons shall be bailed by sufficient sureties, except for capital 
 offenses where the proof is evident or the presumption great. Exces- 
 sive bail shall not be required ; nor excessive fines imposed ; nor cruel 
 and unusual punishments inflicted. No person shall be held to answer 
 for a capital or otherwise infamous crime unless on presentment or in- 
 dictment of a grand juiy, except in cases of impeachment, cases in the 
 army and navy, or in the militia in actual service in time of war or 
 public danger, and in cases of petit larceny and other inferior offenses. 
 In any trial the accused shall be allowed to appear and defend in per- 
 son and with counsel ; to demand the nature and cause of the accusa- 
 tion against him, and to have a copy thereof; to meet the witnesses 
 face to face, and to have compulsory process to procure the attendance 
 of witnesses in his behalf, and a speedy public trial by an impartial 
 jury of the county or district in which the offense is alleged to have 
 been committed ; nor shall any person be compelled, in any criminal 
 case, to be a witness against himself, or be twice put in jeopardy for 
 the same offense.' 
 
 § 20. Upon the subject of the administration of justice, the Consti- 
 tution further provides that the right of trial by jury shall be inviolate. 
 All courts shall be open, and every person, for an injury done him in his 
 land, goods, person, or reputation, shall have remedy by due course of 
 law, and justice administered without denial or delay. No power of 
 
 1 Keyser vs. Stansifer, 6 0. E. 363; Wiswell vs. First Congregational Ch., 14 
 O. S. E. 81. ' 
 
 'Art. ii. § 32. ' Art. i. § 5, 8, 9, and 10. 
 
CHAP. xT.j mCIDENTAL POWERS AND LIMITATIONS. 115, 
 
 suspending the laws shall ever be exercised, except by the General 
 Assembly.' No person shall be transported out of the State for any 
 offense committed within the same ; and no conviction shall vt^ork cor- 
 ruption of blood or forfeiture of estate. And no person shall be im- 
 prisoned for debt in any civil action, on mesne or final process, unless 
 in cases of fraud. 
 
 § 21. The Constitution, in relation to the administration of justice, 
 contains the following provisions for personal security : Every citizen 
 may freely speak, write, and publish his sentiments on all subjects, being 
 responsible for the abuse of the right ; and no law shall be passed to 
 restrain or abridge the liberty of speech or of the press. In all crim- 
 inal prosecutions for libel, the truth may be given in evidence to the 
 jury, and if it shall appear to the jury that the matter charged as libel- 
 ous is true, and was published with good motives and for justifiable 
 ends, the party shall be acquitted. The right of the people to be 
 secured in their persons, houses, papers, and possessions against un- 
 reasonable searches and seizures, shall not be violated ; and no warrant 
 shall be issued but upon probable cause, supported by oath or affirma- 
 tion, particularly describing the place to be searched, and the person 
 and things to be seized.'' 
 
 § 22. Such are the numerous and very important provisions contained 
 in our Constitution for the purpose of securing the due administration 
 of justice, and to secure personal liberty. They have been frequently 
 called into requisition, and been made the subject of judicial decisions, 
 from which may be gathered the following adjudications and prin- 
 ciples : 
 
 § 23. First. The General Assembly are prohibited from exercising 
 all judicial powers. They may pass general laws, but have no right 
 to decide a matter in controversy between persons, for that would not 
 only be in violation of this provision of the Constitution, but also of that 
 which prohibits the passing of any retroactive laws.' Under our former 
 Constitution there were no express inhibitions upon the legislature as 
 to its assuming judicial powers and granting divorces ; yet the supreme 
 court then said : " Divorces are the subject of judicial, not legislative, 
 action, and the Constitution confers upon the legislature no power to 
 grant them ; but, to avoid the consequences which would result from 
 declaring all such void which had been so granted, the court would 
 pronounce them valid.''* Such a case under our present Constitu- 
 tion would meet with a different result. Our courts have frequently 
 decided that a legislative act that abrogated vested rights, or assumed 
 to declare what decision a court should make, was void ; for it was the 
 
 1 Art. i. § 5, 12, 14, 15, 16, and 18. » Art. i. g 11 and 14. 
 
 8 Art. ii. I 28. * Bingham vs. Miller, 17 O. E. 445. 
 
_;116 PUBLIC LA W. [book i. 
 
 province of the legislature to enact laws, but the province of the court 
 to construe them and decide cases. ^ 
 
 § 24. But acts confirmatory of a former law, and merely assuming to 
 cure informality in the execution of a conveyance and the like, and 
 affecting no rights but such as equitably flow from what has already 
 been done, and accomplishing what, upon the principles of natural jus- 
 tice, a court of chancery ought to decree, have frequently been sustained 
 as not objectionable as judicial or retroactive acts. Our present Con- 
 stitution expressly permits such remedial acts. 
 
 § 25. The power of the legislature over the jury has been frequently 
 a subject of judicial determination, when questioned how far the legis- 
 lative power was controlled and limited in changing it from what it was 
 at common law. The right intended to be secured by this provision 
 was a trial by jury as known at common law, with all its essential 
 and distinguishing features, as generally, if not universally, adopted 
 in this country. The number of jurors must be twelve, and cannot 
 be diminished, and a verdict cannot be rendered without the concur- 
 rence of all the jurors. But whenever facts are to be found in any pro- 
 ceeding in which a jury was not required at common law, a jury of any 
 number may be authorized within the discretion of the legislature.^ It 
 has been universally held here, that the trial of a case without the right 
 of a jury was no violation of this constitutional right, when the right of 
 appeal was secured to a court where the trial by a jury could be had. 
 
 § 26. YII. As to offices and officers, the Constitution provides that 
 their election and appointment shall be made in such manner as may 
 be directed by law, but that no appointing power shall be exercised by 
 the General Assembly.' The supreme court, with reference to this pro- 
 vision, have said that an ofScer is a person who has a particular duty, 
 charge, or trust conferred upon him by public authority, and for a 
 public purpose, — an employment on behalf of the government in any 
 station or public trust, not merely transient, occasional, or incidental. 
 And where the legislature has appointed a board of commissioners 
 whose duty and power were to remove one set of officers and appoint 
 others, the court determined* that, although the General Assembly 
 may provide by law for the creation of an office in the form of a board, 
 with power to appoint and remo^^e any officer in any office not other- 
 wise provided for by the Constitution, and although it has unlimited 
 power to pass laws providing for the creation of such offices or 
 boards, yet the General Assembly cannot exercise any appointing power 
 
 1 Chestnut vs. Shane, 16 O. E. 599. See also 17 0. E. 125. 
 
 2 Willyard vs. Hamilton, 7 O. E. pt. 2a, 115 ; see ante, this ch. § 12. Cochran 
 vs. Loring, 17 0. E. 409-425. 
 
 3 Art. ii. ? 27. * State vs. Kennon, 7 0. S. E. 546. 
 
CHAP. XI.] INCIDENTAL POWERS AND LIMITATIONS. 117 
 
 to fill such boards or offices. They have the power to direct by law 
 the manner in which an appointment shall be made ; but directing the 
 manner in which the appointment shall be made, and making the ap- 
 pointment itself, are the exercise of two different and distinct powers; 
 the one prescribing how an act shall be done, being legislative, and the 
 other, doing the act, being administrative. The General Assembly 
 could not exercise the power of appointing the ofiScers of such board, 
 without exercising " appointing power," which is forbidden by the Con- 
 stitution. 
 
 § 27. VIII. Taxation and the pyblic debt are also subjects of much 
 attention, as embodied in the Constitution. It places upon the power 
 of taxation and the creation of debt numerous limitations and guards 
 against the abuse of either. It provides that no tax shall be levied 
 except in pursuance of law ; that poll-tax shall never be levied for either 
 State or county purposes ; it requires, with severe justice, that all prop- 
 erty should be taxed with a uniform rule, and, with a generous liber- 
 ality, exempts the property of public institutions, schools, and churches; 
 it forbids the creation of debt, except for a limited amount, and in cases 
 where public exigencies require it, and establishes a sinking fund for 
 the payment of the existing State debt. 
 
 § 28. In reference to these subjects, the supreme court has said that 
 the Constitution has imposed upon the taxing power important limi- 
 tations, and anj' substantial departure /rom the principles therein estab- 
 lished is such an invasion of the constitutional rights of the citizen as 
 to call for the interposition of the judiciary.' The property of every 
 person, however absolute the tenure, must be liable to bear an equal 
 and just proportion of the public burdens, by way of taxation, in return 
 for the protection afforded by the government, and that proportion of 
 taxation must be determined by the legislative power, which extends 
 to all persons and property within the State. This power, which is 
 essential to the existence of the government, cannot be surrendered or 
 abandoned, either in whole or in part, by the legislature, for the pur- 
 pose of promoting private interest, or to limit or control the power of 
 future legislation over it; but these powers must continue subject to 
 amendment and repeal, as essential to the public safety and welfare, 
 the original and paramount purpose of the delegation of all civil power 
 by the people.'' 
 
 § 29. Such are some of the powers of the State, and the limitations 
 of the Constitution over them. Our limits will not permit a further 
 investigation of them, but to recommend to the diligent student such 
 investigation as opportunity and occasion will permit him to bestow 
 upon them, as essentially necessary to form a constitutional lawyer. 
 
 1 Hill vs. Higdon, 5 0. S. K. 243. 
 
 « Toledo Bank vs. Bond, 1 O. S. E. 622 ; Huston vs. Wright, 15 0. S. E. 318. 
 
118 PUBLIC LA W. [book i. 
 
 CHAPTER XII. 
 
 MAGISTRATE AND PEOPLE. 
 
 § 1. The government has been considered as an artificial person, 
 known by its names ; and its operations, by means of its ofBcers, 
 constitute the State; these, with its subordinate political divisions, 
 and its public functionaries, furnish the evidence of its identity. But 
 the government or State is nothing without its people. Hence the 
 necessity of considering the inhabitants of the country in their relation 
 to the public; and in this point of view, they may be classed as the 
 magistrates and the people. 
 
 § 2. I. The magistrates in this country are those persons who are 
 temporarily designated, by election or appointment, to perform some 
 public function in the government, and to preserve peace and order. 
 These may be known by an appellation more general, and one more 
 familiar to the law, — as officers; and they may again be classified, 
 according to the several departments of the government to which they 
 belong, and the duties they have to perform, as the legislative, the 
 executive, the judicial, and the iftilitary. Each of these have a distinct 
 set of laAvs, appropriate to their duties and functions, and governing 
 their action and conduct. Every officer is justified and protected in 
 the due execution of the duties of his office, and the exercise of such 
 powers as may be necessary and proper for that purpose. But for all 
 excess and wanton exercise of authority by which any person is injured, 
 the officer is liable to the payment of damages to him for the injury he 
 has thus sustained. 
 
 § 3. Where an officer exercises a legitimate power, which the law 
 has conferred upon him, he cannot be made liable for it in any form of 
 action. This is a principle of universal application, and it is absolutely 
 necessary to the protection of those in whom a public trust is confided. 
 Infinite mischief would be the consequence if this were not the case ; 
 for otherwise no person would willingly engage in any public trust, if 
 the law, which invests him with the authority, would not protect him, 
 but were to be converted into a weapon of offense against him.' Still, 
 every officer is bound to perform his duty; and for every nonfeasance 
 or misfeasance in office he is liable to the party injured for the damages 
 he has sustained in consequence of such non-performance of duty. But 
 when an officer is acting within the scope of his duty, he is only re- 
 
 1 Suovil vs. Geddings, 7 0. E. 2d pt. 211. 
 
CHAP. XII.] MAGISTRATE AND PEOPLE. II9 
 
 sponsible for an injury resulting from a corrupt motive ;' as when a 
 recorder recorded an instrument such as it was his duty to record if 
 genuine, but which turned out to be a forgery ; it must be shown, in 
 order to render him liable, that the officer knew that the instrument 
 was a forgery, and entered it on the records with a corrupt intent. 
 
 § 4. The law always presumes that what is done, is rightly done ; 
 and in respect to official acts, the law will presume all to be rightfally 
 done, unless the circumstances of the case overturn this presumption ; 
 consequently, acts done which presuppose the existence of other acts 
 to make them legally operative, are presumptive proof of the latter; 
 and facts thqs presumed are as effectually established as facts proved, 
 so long as the presumption remains unrebutted." 
 
 § 5. When it becomes necessary to show that an official act was 
 performed by an officer, it is sufficient to prove that such officer was 
 generally acting and recognized as such ; and where an officer pleads 
 an official authority as a justification for an alleged trespass, he may 
 sustain the allegation that he is such officer by evidence that he is re- 
 puted to be and has acted as such officer. When an official act is 
 claimed to have been done, it is sufficient that it appears that the offi- 
 ciating officer was such de factof and it is unnecessary, especially in 
 a collateral matter, to prove that he was such officer de jure. Where 
 a transaction is assumed to have been performed by an officer having 
 the subject-matter within his jurisdiction, mere irregularity in the pro- 
 ceedings will not render it void, when questioned collaterally.'' 
 
 § 6. These principles are applicable to all officers ; but there is a 
 well-known distinction between officers who are executive and minis- 
 terial, and those who are judicial. A ministerial officer is bound in 
 good faith to perform his duties as well as he knows how, or he will 
 be responsible for consequences, and it is seldom or never that he is 
 allowed a discretion in the matter. Executive officers, in acts that are 
 not merely ministerial, are frequently called upon to exercise a sound 
 judgment and prudence in the performance of their duties. Asa gen- 
 eral rule, an officer is not responsible for a mistake in the exercise of 
 judicial discretion. But an action is allowed to be sustained against 
 township trustees for refusing a lawful vote at an election, without 
 proof of express malice. This anomaly is allowed, upon the ground of 
 the high appreciation of the privilege of voting, and, the law having 
 provided no other remedy, there seems to be a necessity for it. But 
 where, in the absence of malice, the suit is brought to test and assert 
 
 1 Kamsey vs. Kilcy, 1.3 0. K. 157 ; Stewart vs. Southard, 17 0. K. 402 ; Dunlap 
 vs. Knapp, 14 0. S. li. 6-t 
 
 2 Ooombi vs. Lan3, 4 'S. R. 112; 12 Wheat. E. 70; 6 0. S. R. 288. 
 
 3 State vs. Jacobs, 17 0. K. 143. 
 * Poster vs. Dusen, 8 0. R. 87. 
 
120 PUBLIC LA W. [book i. 
 
 the right, the damages should be only nominal. It is only in cases of 
 intentional injury and corrupt motives, that a jury would be likely to 
 inflict exemplary damages.^ 
 
 § 7. An officer, while he has the matter in the course of performance, 
 in fieri, may and should correct and reform his proceedings, but when 
 the duty is fully performed and passed out of his hands, it should not 
 be touched or tampered with, for others have an interest in the matter ; 
 and it is said to be functus officio, and the officer has lost his power 
 over it. 
 
 § 8. Having thus treated of the government and of the persons who, 
 in their official capacities, perform the necessary functions of the gov- 
 ernment as public persons, it remains only to notice the people in 
 their public relations, in order to close this analysis of public law. 
 The relation of the government and people, and the duties and obliga- 
 tions of each, are reciprocal — the government owes aid and protection, 
 and the people fidelity and allegiance. In this country the government 
 itself is no more than an expression of the collected will of the people, 
 and, as far as the laws will permit, it is bound to render its aid and 
 protection to the people. So, on the other hand, are the people bound, 
 by sentiment of gratitude and patriotism, to render to their government 
 true faith and allegiance. Tho'ugh these duties arise from natural "sen- 
 timent and the very nature of things, yet the laws do not entirely rely 
 upon them, but require all officers, upon being installed, to take an oath 
 in prescribed forms, to support the Constitution and perform faithfully 
 the duties of their respective offices ; and on the part of the people, on 
 all proper occasions, oaths of fidelity and allegiance. 
 
 § 9. The obligation that a person is under who has taken such pre- 
 scribed oath, is that of express allegiance ; while those who have not 
 taken such oath are bound by their implied allegiance. This allegiance 
 thus resting upon all the people is distinguished, in the law, into two 
 species — the one natural and permanent, the other local and temporary. 
 The first is such as is duo from citizens, either native or naturalized, 
 while the second is such as is due from those who are not recognized 
 as citizens, but owe a temporary allegiance to the government in conse- 
 quence of enjoying its safety and protection, while under its care, as 
 
 aliens or denizens. This causes a classification of the people into 1, 
 
 citi7jens, 2, aliens, and 3, denizens. 
 
 § 10. LA citizen is a person who possesses the highest privileges 
 of the country, and is permitted to enjoy and exercise those rights and 
 franchises which are bestowed in common upon such as are the favored 
 of the people, which, in general, is intended to includOj according to 
 the rules of law, the right to vote for rulers, to hold offices, and to 
 
 _ I 
 
 1 11 0. Pv. 372 ; Huden, SVG ; 9 0. S. U. 5GS. 
 
CHAP. XII.] MAGISTBATE AND PEOPLE. 121 
 
 purchase and hold real property. Such persons may be either native 
 or naturalized citizens, and they owe a permanent allegiance to the 
 country. According to English rule, the allegiance of native subjects 
 has been claimed to be perpetual and unchangeable, and they have 
 no right or power to divest themselves of it or to expatriate themselves. 
 Still, that government naturalizes foreign subjects, and thousands of 
 its own subjects become the subjects and citizens of other countries. 
 Our government has always claimed the right, so that it is done under 
 no betrayal of immediate and fixed duties, or under circumstances 
 which might be justly considered objectionable. 
 
 § 11. The subject of naturalization belongs exclusively to the govern- 
 ment of the United States. This was so conceded by the Constitution, 
 in order to constitute the rules of naturalization uniform, and to give 
 it the protection of the general government. Accordingly, Congress 
 has passed a uniform law of naturalization, by which foreigners may 
 become naturalized citizens. This law provides that foreigners may 
 become naturalized citizens : firnt, all persons who comply with the 
 requirements of the law, together with their wives and minor children; 
 secondly, the widow and minor children of persons who have complied 
 with preliminary requisites, but die before their naturalization is com- 
 pleted, upon taking the requisite oaths ; thirdly, persons who have 
 arrived in the United States before they were eighteen years of age are 
 entitled to be admitted at once, without taking certain preliminary 
 steps, upon proof of character and residence; and fourthly, all persons 
 who have served in the army or navy of the United States in the war 
 of 1861, and have been honorably discharged, are also entitled to be 
 admitted, upon proof of character and service. 
 
 § 13. Persons who are entitled to become naturalized must appear 
 before a court of record, and prove character and residence, take the 
 prescribed oath of allegiance, renounce all allegiance and fidelity to 
 every foreign prince and state, and then receive a certificate of their 
 naturalization. Those who are not entitled to be admitted at once, 
 without the preliminary requisites, must, at the same time, show and 
 prove to the satisfaction of the court, as such preliminary requisites, 
 that they have resided in the United States at least the previous five 
 years, and in the State one year ; that they had, at least two years 
 previous, appeared in some court of record, and made a declaralion 
 upon oath that it was bona fide their intention to become citizens of the 
 United Slates, and to renounce forever all foreign allegiance; and also 
 must prove good character and attachment to our country and form of 
 government, as prescribed by law. 
 
 § 1.3. Naturalized citizens are now entitled to every right and privi- 
 lege to which a native citizen may be entitled, except to be President 
 or Vice-President of the United States, and as such may claim to be 
 
122 PUBLIC LAW. [book I. 
 
 protected at home and abroad. This right of naturalization is now 
 admitted by some foreign governments as being right and proper, where 
 cautioned, by prudent restraints, and attended by no betrayal of any im- 
 mediate and fixed duties to the prior country and government. It seems 
 now to be acknowledged that such right, thus limited, of expatriation and 
 naturalization is demanded by the sentiment and progress of the age. 
 
 § 14. What restraints now exist in the laws of the "United States, as 
 to race and color in becoming citizens, is a considerable question. The 
 laws of ttie United States in relation to naturalization declare that it is 
 only " free white persons'' who should be admitted. There can be but 
 little question that the original founders of our institutions and framers of 
 our laws intended that this should be the country and government of the 
 white race. This declaration is found, until the close of the rebellion, 
 scattered through all our laws and written institutions, and wherever 
 the contrary appears it was the result of special favor and considera- 
 tion. But immediately upon the close of the war of the rebellion of 
 1861, the people of the United States adopted the 13th and 14th amend- 
 ments to the Constitution, and Congress passed the " Civil Rights Bill," 
 which changes the whole character of our institutions in this respect. 
 
 § 15. The loth amendment provides that neither slavery nor invol- 
 untary servitude, except for the punishment of crime, shall exist within 
 the United States or their jurisdiction, and that Congress shall have 
 power to enforce it by appropriate legislation.' The 14th amendment 
 provides^ that " all persons born or naturalized in the United States, 
 and subject to the jurisdiction thereof, are citizens of the United States, 
 and of the State wherein they reside. No State shall make or enforce 
 any law which shall abridge the privileges or immunities of the citizens 
 of the TTnited States ; nor shall any State deprive any person of life, 
 liberty, or property without due process of law, nor deny to any person 
 within its jurisdiction the equal protection of the laws." 
 
 § 16. These constitutional provisions are fully sustained and guaran- 
 tied to every citizen, without regard to race or color, by the " Civil 
 Rights Bill," which prohibits any such distinction being made, and pun- 
 ishes any violation of its principles. These constitutional amendments 
 and the Civil Rights Bill extend only to civil rights, and do not in- 
 clude political franchises and rights, but leave them to be regulated by 
 the Constitution and laws of the several States, as all rights of prop- 
 erty and political franchises had been placed by the Constitution of the 
 Union from its origin. Therefore, a distinction must be observed be- 
 tween civ<l rights and political rights. The former aro those rights 
 and protections enjoyed ljy all our young men before they attain their 
 majority, by all our females, and by our denizens ; the latter are such 
 as are enjoyed only by our voters and office-holders. The distinction 
 
 Adopted in 1865. ' Adopted in 18G8. 
 
CHAP. XII.] MAGISTBATE AND PEOPLE. 123 
 
 between them is broad and easily understood. In accordance with the 
 acknowledgment of this distinction, the '14th amendment provides in 
 case any State should deny these franchises to any class of persons on 
 account of race or color, the State's numbers should be reduced propor- 
 tionally in their enumeration for representation in Congress. While all 
 are equally interested in having our civil rights placed upon the broadest 
 and firmest basis, and bound to protect them so, still it is a serious ques- 
 tion, in a democratic republican government like our own, whether it is 
 not more conducive to the happiness and prosperity of the whole, that 
 the political franchises should be confined to the predominant race of the 
 country, so that their efforts, hopes, and struggles maybe homogeneous. 
 § 17. 2. Aliens'are those persons who are foreign by birth and alle- 
 giance, — who have not become citizens or denizens. By the English 
 common law an alien cannot have a seat in I^;irliament, nor inherit 
 lands, nor, has he any inheritable blood, so as to transmit an estate in 
 land by descent ; and when he is an alien enemy, he is not entitled to the 
 benefit or protection of the laws, and every one is permitted to seize 
 upon his chattels, without being compelled, as in other cases, to make 
 restitution or satisfaction to the owner.' In many other countries their 
 condition was often still worse, for there the words foreigner, alien, and 
 enemy were synonymous. In Ohio, and generally in the whole Union, 
 an alien is permitted to purchase and hold land, and to transmit the same 
 by inheritance. In time of war, when they became alien enemies, they 
 have always been protected in their persons and property, unless they, 
 became obnoxious to prosecution or expulsion on account of their bad 
 or hostile conduct. 
 
 § 18. 3. A denizen is an alien or foreigner who, by the laws of the 
 country, has obtained, either permanently or for a time, the civil rights 
 of a citizen or subject, without the right to enjoy the same political 
 privileges. In this country aliens have been treated with so much con- 
 sideration and kindness that it is difficult to distinguish between their 
 condition and that of those who may be considered denizens. Yet it is 
 thought that the distinction exists here. As in the case of a foreigner who 
 has, under the laws of the United States, taken the preliminary oath that 
 it was bona fide his intention to become a citizen of the United States, 
 and abjure forever all foreign allegiance; so too' may it be said that 
 this is the condition of the colored man, or African by descent, in Ohio, 
 and through the United States, where he is no longer a slave, since the 
 adoption of the 13th amendment. In Ohio, the colored man, or African 
 by descent, has and enjoys every civil right that belongs to any one, 
 but he has not the citizen's political rights to vote and to hold office. 
 
 § 19. Such are the distinctions by which the people of the United 
 States may be classified. The I4th amendnlent, however, makes "all 
 
 1 2 Stephens's Corn. 79 and 429. 
 
12i PUBLIC LAW. [book I. 
 
 persons born or naturalized in the United States, and subject to the 
 jurisdiction thereof, citizens of the United States, and of the State 
 wherein they reside." This makes the people of the United States 
 either citizens or aliens; and still it may be claimed that there are 
 some in both of these classes who may be properly classed as denizens, 
 viz., the foreigner who has made his declaration and taken the pre- 
 scribed oath preparatory to naturalization, and the native-born African 
 who is not permitted to vote or hold office, and yet is admitted to all 
 the rights of a citizen in every other respect. There are, therefore, 
 citizens who are properly so called, and citizens who may properly be 
 called denizens. The Indians of our country, who are comparatively 
 of little importance in numbers, are natives born, within the jurisdic- 
 tion of the United States, and some become citizens, while others can 
 only be claimed as denizens. 
 
 § 20. The question of allegiance has been a matter of much contro- 
 versy in this country, o'n account of our double form of government, 
 of State and Union. This was one of the subjects that aided in bring- 
 ing on the late rebellion, but which, with that of slavery, was entirely 
 and finally settled by the war. Some, and especially the South, con- 
 tended that our allegiance was first due to our State, and not to the 
 United States. But it is strange how people could entertain so erro- 
 neous an idea, when it was so obvious that the Constitution ema- 
 nated from the people of the Union, as well as being the individual 
 act of the several States, by which they formed the Union, and by 
 which both people and States were jointly bound to maintain and 
 preserve a general government, "in 'order to provide for the common 
 defense, and promote the general- welfare.''' At the same time the 
 Constitution itself declares that the Constitution and the laws, and 
 treaties of the United States made in pursuance of it, should be the 
 supreme law of the land ; and that all executive and judicial officers of 
 the United States and of the several States should be bound by an 
 oath to support it. By these means allegiance to the general govern- 
 ment was doubly secured — by that allegiance naturally due to the 
 government that gives us protection, and by positive declaration upon 
 oath. Every one, therefore, owes his allegiance first to the govern- 
 ment of the United Slates, and is bound to support and defend the 
 Union in preference to his particular State. 
 
 § 21. Having thus analyzed the various subjects that constitute pub- 
 lic law or public rights,— Ji(s puhlicum, — which form the subject of this 
 first book, it is now proposed to proceed to the second book, in which 
 will be analyzed the law in relation to private law or private rights, — 
 jus 'p?-i.vahim, — or those rights which appertain to a person in his 
 private capacity, both as they regard his person and his property. 
 
 1 Introduction to the Constitution of the United States. 
 
book: XX. 
 P R I VA T E L AW. 
 
 CHAPTER I. 
 
 ABSOLUTE RIGHTS AND PROPERTY. 
 
 § 1. Private persons, like public persons, are either natural or 
 artificial. Natural persons are such as are formed by the hand of 
 nature. Artificial persons are such as are formed by the invention 
 of man, are constituted by a union of natural persons, whose united 
 action is recognized in law as that of an individual, capable of obli- 
 gations and laws, and have received the name of private corpora- 
 tions.^ The rights appertaining to these two classes of private per- 
 sons form the subject of this book ; and are usually spoken of as the 
 absolute rights of man, which include his right and dominion over 
 property. To these must be added his relative rights, civil and politi- 
 cal, arising from his relation and connection with others and with 
 civil society. The rights of artificial persons are no other than 'such 
 rights and dominion as man is permitted to exercise over property. 
 
 I. THE ABSOLUTE EIGHTS OF PEESONS. 
 
 § 2. The rights of persons in private life are either absolute, such as 
 appertain to an individual unconnected with others, or relative, which 
 arise from civil or domestic relations. The absolute rights of individ- 
 uals may be classed as consisting of the right of personal libertj', the 
 right of personal security, the right of conscience and expression of 
 political sentiment, and the right to acquire and enjoy property. The.se 
 rights are considered sacred in the eyes of all freemen, and by the 
 people of this country have been frequently declared to be natural, in- 
 herent, and inalienable, and are protected by important constitutional 
 provisions. 
 
 § 3. I. The right of personal liberty consists in the power of locomo- 
 tion and of pursuing our happiness and lawful vocations unrestrained, 
 
 ' As to artificial persons and corporations, see post, eh. xv. 
 
 (125) 
 
126 • PBIVATE LAW. [book n 
 
 except by due course of law. The chief safeguard of this our most 
 saeved right is the writ of habeas corpiia, the privilege of which is 
 secured to us by express constitutional provisions, subject to no con- 
 trol except in cases of invasion or rebellion.' It is a writ of right, 
 which every person is entitled to ex merilo juslitim. The provisions 
 of this remedy are borrowed from the English common law, and the 
 statute of 31 Charles II. c. 2, and have been followed in the habeas 
 corpus act of this State. 
 
 § 4. Every restraint upon a man's liberty is, in the eye of the law, 
 an imprisonment, wherever may be the place or whatever may be the 
 manner in which the restraint is effected. Whenever any person is 
 detained with or without due process of law, unless for treason or 
 capital crime, plainly and specifically expressed in the warrant of com- 
 mitment, or unless such person be a convict legally in execution, he is 
 entitled to a writ of habeas corpus.' Whenever it may be said that 
 the person is illegally restrained, or without due process of law, — even 
 in the excepted cases, when the cause of commitment is not properly 
 charged in the warrant, — the legality of the detention may be inquired 
 into under the process of this great remedial writ. It is obtained by 
 an allowance of it by a judge, upon the copy of the warrant, or if that 
 cannot be obtained so as to show its insufficiency, then upon an affi- 
 davit of the facts showing the illegality of the detention, upon which 
 allowance the writ is issued by the clerk, returnable forthwith before 
 the judge, and requiring the person charged with the illegal imprison- 
 ment to bring before the court or judge the person so detained, with 
 the cause of his detention. In the allowance of the writ, the judge acts 
 merely as a ministerial officer, who, as well as the clerk and other 
 officers, are bound to perform their respective duties, under the severe 
 penalties of the statute regulating the issuing of the writ. 
 
 § 5. Upon the service of the writ, the party detained is to be brought 
 before the judge, with all reasonable diligence, together with the true 
 cause of detention. When this is done, the judge's judicial capacity 
 eommenccs, and he then acts under no other responsibility than that 
 which belongs to the exercise of every judicial officer. He is then, 
 according to his best judgment and discretion, to discharge, bail, or 
 remand the prisoner. He may remand in the following cases:'' (1) when 
 it appears that he is detained upon some legal process, issued in the due 
 course of law, and plainly specifying the cause of detention, in a cause 
 not bailable ; or in a bailable cause, where he neglects or refuses to give 
 bail ; (2) when he is detained in execution by a legal process upon a 
 
 1 Const. U. S., Art. i. ? 9. « 2 Kent's Com. 22. 
 
 '2 Kent's Coki. 25; 8 Stephens's Com. G94; see also post, B. iv. ch. iv. J 35, 
 etc.; and Hurd on Habeas Corpus, 430, etc. 
 
CHAP. I.] ABSOLUTE EIGHTS AND PROPERTY. 12T 
 
 judgment rendered by a court of competent jurisdiction in a civil or 
 criminal cause; and (3) when detained for a contempt of some court 
 of competent jurisdiction, specifically and plainly charged in the com- 
 mitment, unless the power and authority of such court shall have ex- 
 pired and ceased. 
 
 § 6. But upon the return of the writ, if the case be not one of those 
 cases which, by the validity of the process and return, the court is bound 
 to remand, the judge is not confined to the return, but may examine 
 into the facts, and an inquiry may be instituted before him, either for 
 the purpose of ascertaining the justice of the detention, when the com- 
 mitment appears correct upon the face of it, or for the purpose of com- 
 mitting correctly when the original commitment was irregular or void. 
 This power gives to the judge the character of a court of review, as to 
 the acts of a co-ordinate magistrate, except in those cases where he is 
 precluded by the character of the case, and the sufijciency of the com- 
 mitment and return, as stated in the last section. When a person is 
 once set at large, be cannot be reimprisoned by the same or any other 
 magistrate, except by the legal order or process of a court having com- 
 plete jurisdiction of the case.' 
 
 § 7. Persons committed for crime are to be tried by the second term 
 after their commitment, or they will be discharged, unless satisfactory 
 cause be shown for the delay.' Xo person can be transported out of 
 the State for any offense committed within it f nor, under the existing 
 laws of the laud, be prevented from going abroad, except in those cases 
 in which he may be detained by civil process or upon a criminal charge. 
 The writ ne exeat is not in use, except in proceedings in equity for civil 
 purposes. 
 
 § 8. II. The right of personal security consi.sts in the peaceable 
 enjoyment of life, limb, body, health, and reputation. I. Life is the 
 gift of God, and man has neither the right to destroy his own nor to 
 take away that of others ; and that life is guarded and protected by 
 the law, as well before birth as after. The life of a human being 
 is so guarded by the law that almost universally the willful and 
 deliberate killing of another is only expiated at the expense of the 
 life of the offender. So deep is the wound that the private injury 
 is merged in the public offense, and the relative who may suffer by 
 it is without a civil remedy. The taking of the life of another may 
 be justified in the defense of our own, or for the prevention of some 
 great bodily harm, or of some great or irreparable injury to our prop- 
 ertv, as in the case of burglary or arson. But homicide is never 
 justified in defense of a private injury, nor upon the pretense of neces- 
 
 ' Statutes, vol. 29. ' Constitution of Ohio. 
 
128 PEIVAT£] LAW. [book ii. 
 
 sity, when the party is not free from fault in bringing that necessity 
 u^on himself, or when it can well be avoided. 
 
 § 9. 2. The limbs and body of a person are protected by the law 
 with so jealous an eye that every unlawful striking at another, or 
 threatening in a menacing manner, is an assault; and every unlawful 
 striking of another, however light, is a battery, for which the offender 
 is liable to a criminal prosecution, and in damages in a civil action, to 
 the party injured. 
 
 § 10. 3. The law affords ample protection for a person's health and 
 reputation. In regard to the first, when one's health may be exposed 
 or annoyed by a nuisance perpetrated by another, the law affords 
 means of abating it, and gives an action for the injury.^ And as to the 
 latter, the law is equally guarded in preventing inducement to a breach 
 of the peace on account of attacks, without a proper justification, upon 
 the reputation of another, by ample damages in a civil action for verbal 
 slander ; and for defamation by writing the injured person has his 
 civil action for his private injury and a criminal prosecution for libel, 
 which the ^aw provides with a view to the preservation of the peace of 
 the community. 
 
 § 11. III. The right of conscience and the expression of one's ^oZi^ 
 ical sentiments are in this country jealously protected by law, as essen- 
 tial to our civil and political liberties.- It is provided that " Congress 
 shall make no law respecting an establishment of religion, or prohibit- 
 ing the free exercise thereof, or abridging the freedom of speech or of 
 the press, or the right of the people peaceably to assemble and to peti- 
 tion the government for a redress of grievances.'" 
 
 § 12. IV. The next and last great division of rights to be considered 
 here is that of acquiring and enjoying property, which is so intimately 
 connected with our prosperity and happiness, and constitutes a promi- 
 nent item of the law. It will involve the consideration of the differ- 
 ent kinds of property, how acquired and lost, and how the title upon 
 which it depends has been acquired,-^whether by the acts of the parties, 
 as by contract, or by the operation of law ; these considerations will 
 occupy the greater part of the present book. 
 
 Propei;ty is the dominion that man may legally exercise over external 
 things. A\'ithout going into the inquiry as to the original principles 
 upon which is founded the right of property, it is very obvious that 
 property itself is divided into two great classes, viz., that which is fixed 
 and local, — as lands and tenements, usually denominated real property, 
 . — and that which is movable and may be transported and carried about 
 with the person of the owner, which is called personal property. 
 
 1 See Ijook iii. ch. i. § 1-7 ; b. iii. ch. iii. I 1-8. 
 
 '^ Soo Introduction, chap ii. J 18-2i. 
 
 -'' U. S. Constitutional Amendment, Art. i. 
 
CHAP I.] ABSOLUTE RIGHTS AND PBOPERTY. 120 
 
 § 13 Various theories have been adopted for the purpose of deducing 
 and establishing the principles upon which the exclusive right of prop- 
 erty was first established. Such discussion partakes much of scholas- 
 tic refinement, for so obvious is it that all would acknowledge the right 
 of property, as to personal property, to bo in him whose labor and in- 
 dustry had produced it, and as to real property, to be in him who occu- 
 pied and cultivated it. A sense of natural justice would cause us to 
 revolt in our feelings upon witnessing any violation of this right, 
 founded upon such laborious production and possession. The right thus 
 acquired would be as naturally transferred from one to another by a fair 
 exchange or sale, as the right originally established was apparent. The 
 right of property being thus acknowledged, it would become next the 
 interest and duty of society and government to fix and establish rules for . 
 the holding of property, and for the transfer of it from one to another; 
 and especially to regulate the right of inheritance and succession. 
 
 § 14. Property, both in lands and movables, being thus originally 
 acquired by occupancy and production, it would remain his who thus 
 acquired it, upon principles of universal justice, until he should, by con- 
 sent, transfer it to another, or abandon it. When thus abandoned, it 
 would again naturally become common property, piiblici juris, and 
 would be liable again to be appropriated by the first fortunate finder 
 and occupant. It was therefore upon principles of natural justice that 
 Abraham claimed his well, " because he had digged that well ;" and 
 Isaac long afterward to reclaim it as his property in right of his father. 
 
 § 15. Although it may appear unquestionable, according to obvious 
 principles of natural justice, that the person whose labor and care have 
 produced or secured certain personal property or whose occupancy and 
 industry have secured to his enjoyment certain real property, should be 
 permitted to enjoy what his labor and care had rendered valuable, and 
 should also be permitted to transfer it to others by exchange, sale, or 
 donation, as might best suit his interest or convenience, and at the termi- 
 nation of his life to leave or dispose of it to the benefit of his children 
 and friends, — yet the laws of all countries have not left all this to depend 
 merely upon natural sense of justice and native instincts, but have by 
 appropriate rules and regulations directed by positive laws how these 
 natural desires should be accomplished and their rights in property 
 regulated and transferred. Otherwise contentions might arise, and 
 the natural sense of justice could not at all times be depended upon 
 against the avarice and cupidity of the vicious. Therefore, in accord- 
 ance with natural law and evident justice, the law has declared cer- 
 tain rules and regulations by which property ..might be acquired, dis- 
 posed of, and transferred to others ; how personal property might 
 be transferred, and real property conveyed, and who should succeed or 
 inherit upon the decease of the owner. 
 
 9 
 
130 PRIVATE LAW. [book II. 
 
 § 16. The law, in defining the different kinds of property, real and 
 personal, and of man's dominion over it, and how it may be acquired 
 and lost, who shall succeed to it, or inherit it, upgn the death of the 
 owner, involves a vast field of learning, which will be considered in the 
 following chapters, and in which will be first considered real property, 
 next personal property, and how each may be acquired or lost. The 
 right of property is not only thus defined, but is protected and guaran- 
 tied to the owner by great constitutional principles, so that even the 
 State or the public cannot deprive him of his property under pretense 
 of eminent domain or otherwise, except by due course of law, in cases of 
 public exigency, and upon payment of it^ value, to be assessed by a jury. 
 
 § 17. These absolute rights of individuals, so treated in this chapter, 
 are guarded and protected by other rights, which are ancillary to them, 
 and are intended only for the purpose of rendering them effectual. Such 
 are — 1st. The right of representation in the legislature; and this in- 
 cludes the dependent right of instruction to the representatives, and by 
 that means promote a reformation in the administration and laws. 
 This again involves a prior right — that of suffrage, and the influence a 
 person may have on these subjects through the ballot-box. But these 
 are political rights, not civil or absolute rights ; and as such may be 
 more or less restrained or limited as the people of any country may 
 deem them consistent with their safety and happiness. 2d. The right 
 to appeal to the principles and guaranties of the Constitution, as the 
 birthright of every citizen. This, in some instances, is an imperfect 
 right, for the want of a sanction, or means of enforcing it ; but as every 
 officer of the government is sworn to support the Constitution, and as 
 every one looks to it as the palladium of his safety, it is to be hoped that 
 such appeal is never to be made in vain. 3d. The right to petition the 
 legislature for the redress of grievances, and for amendment of the laws. 
 The legislature has no right by special act to redress private injuries 
 by compelling the aggressor to do justice to the injured party, as that 
 would be contrary to the principles of our political institutions, which 
 leave the power of redressing private injuries to the judiciary; and 
 every such act would moreover be objectionable as being either ex pout 
 faclo or retroactive. But the legisla,ture may, however, redress in- 
 juries by allowing compensation from the public ti'easury, or by amend- 
 ing the laws, and providing against future injuries. 4th. The right of 
 applying to the courts of justice for the redress of any injury, as for a 
 habeas corpus and the like remedial process. 5th. The right of 
 self-defense, and repelling an attack, even by force when necessary, 
 which right every individual possesses; though it is a prominent 
 maxim of our law that no one has a right to administer redress for his 
 own injury, when there is time to avoid it, but should appeal for such 
 redress to the proper tribunal of the government. 
 
CHAP I.] ABSOLUTE EIGHTS AND PROPERTY. 131 
 
 II. KEAL PROPERTY AND TENURE. 
 
 § 18. That dominion which man may legally exercise over external 
 thiag.s is called property; which may consist either of permanent and 
 fixed property in lands ; or of transitory and movable property, which 
 may accompany the person of the owner. Although man's right to 
 exercise this dominion over either kind of property must rest upon the 
 same reason and principles, yet the rules of permanent property, and 
 the means of acquiring and losing it, are far more artificial and compli- 
 cated than those of movable property. At first land, before it had been 
 taken possession of by any one, must have been the common property 
 of all, to be appropriated by him who first claimed it, took nossession 
 and cultivated it. A natural sense of justice would dictate that ho 
 who had taken possession of the land, built his cabin, inclosed and cul- 
 tivated his fields, should not be dispossessed except by his consent; 
 and any violation of this universally acknowledged right would pro- 
 duce in all persons a native sense of injustice and Avrong. 
 
 § 19. The right of property in land being thus acquired by occupancy, 
 it would, like personal property, be subject to be disposed of, abandoned, 
 or transferred to others. To prevent contention and strife as to rights 
 and title in any such cases, and to designate the person upon whom 
 the right of property in all cases shall devolve, the pride and arrogance 
 as well as the convenience and happiness of society have carried (he 
 rules of property, bj' positive laws, far beyond what natural law would 
 suggest; as in the instance of a parchment or a piece of paper giving 
 to the owner the right to a tract of land of which he has never been in 
 the possession, and which he had never seen, and to exclude all others 
 from the occupancy and possession of it. Thus what the law of nature 
 would suggest as to the right of real property is superseded by the 
 voluminous positive law of the land, founded upon the indication of 
 nature and the convenience of society, which establishes the right of 
 property in its highest perfection; pointing out in every instance the 
 precise manner in which it may be acquired or lost, and preserving 
 the title to the person whom the law designates as the owner. 
 
 § 20. As soon as any country became thickly peopled, and therefore 
 land valuable, and an object of acquisition, the government assumed 
 more or less control over it, in its regulation and distribution ; and it 
 formed an important item in the political elements of the law. Thus 
 in most governments the holders of land derived their title, directly or 
 indirectly, from the government, as the lord paramount or original 
 proprietor of the soil. The tenures of every country would depend 
 upon the manner in which the tenants acquired their titles from the 
 government, and the interest it gave them in the land. Much of the 
 teLhnical language of our law of real property derives its origin through 
 
132 PRIVATE LAW. [book ii. 
 
 the common law of England, from tho feudal tenures which once spread 
 over the greater part of Europe. 
 
 § 21. The word tenure is of feudal origin, and in that system sig- 
 nified the holding (tenena) of land of a superior lord. But we have re- 
 tained the word and applied it to our allodial system of jurisprudence 
 of real property, to express the manner in which we derive our title, 
 and our relation to it. We therefore now mean by tenure the manner 
 in which lauds and tenements are held, not of another, but in our 
 own right. The proprietor, or he who holds real corporeal property, 
 is called a tenant, the thing or property thus held a tenement, and 
 the manner of his possession a tenure. Although none of the feudal 
 tenures, or those of the English common law of feudal origin, exist in 
 this country, j'et, for the proper understanding of our own, it is neces- 
 sary that they should, in some measure, be the object of our study. 
 
 § 22. Whatever doubts or controversy may exist as to the origin 
 of feuds, or the etymology of the term, certain it is that the whole 
 system was introduced into Europe' by the northern conquerors 
 who settled upon the ruins of the Roman Empire. These rude war- 
 riors, in order to secure their new acquisitions, made allotments of cer- 
 tain portions of the land to the superior oiEcers, who dealt them out in 
 smaller parcels to their followers. These allotments were called feuds, 
 and superinduced on the individual the necessity of defending them. 
 The feudal system was effectually established in England as a part of 
 the national system of government in the reign of William I. The 
 great and fundamental principle of the system is, that the king is the 
 original proprietor of all the lands in the kingdom, and that all landed 
 property is held by the proprietor as a gift from him, subject to feudal 
 services, which were, to do suit in the lord's court, and to attend him 
 in time of war. 
 
 § 23. Feuds, on their first introduction, were held at the Avill of the 
 lord ; they subsequently became established for life, and finally they 
 became hereditary. Among other particular traits and qualities of 
 feuds were that the feudatory could not alien, devise, mortgage, or ex- 
 change his fee without his lord's assent ; neither had the lord the power 
 of transferring his seigniory without the assent of his vassal. From 
 these principles originated a number of other principles and terms well 
 known t9 the English law, — as fee, which signifies to hold of another ; 
 the unnatural division or distinction between freeholds and terms, which 
 depended upon fealty and the relation which existed for life between 
 the lord and his vassal, which gave greater importance to an estate which 
 lasted precisely the same period of time. So allegiance and attornment 
 have also the same feudal origin. Feudatories, from the nature of 
 
 ' Cruise's Dig., title Tenure. 
 
CHAP. I ] ABSOLUTE RIGHTS AND PROPERTY. 133 
 
 their feudal tenures being bound to attend the lord in his wars, were 
 often incapable of attending to the cultivation of their lands, and were 
 consequently obliged to commit that care to inferior tenants, who re- 
 turned a compensation for the use of the land, which was called reditus, 
 and is the origin of rent. On this account, feuds were divided into 
 proper and improper : the first were those granted upon military ser- 
 vices by a chief to his followers ; the second were those granted upon 
 some different consideration in lieu of military services, as rent, etc. 
 
 §24. In England, all real property is holden of some superior lord 
 in consideration of services to be rendered to him by the tenant. By 
 the policy of the law of tenure of the kingdom this superior lord is the 
 king, who is therefore called the lord paramount. Those lords who 
 held under the king, and granted portions of their possessions to infe- 
 rior persons, were called mesne lords, and those holding under them 
 tenants pttravail. According to the nature of these services and rents, 
 a vast number of feudal tenures existed in England until the statute 12 
 Charles II., which, with few exceptions, converted the tenures of the 
 kingdom into free and common socage, which is where lands are holden 
 by any determinate services but still a feudal tenure, for it is held of a 
 superior lord, subject to a redilus, or rept, and to fealty, etc. 
 
 § 25. The English colonies, which have since formed these United 
 States, were claimed by the king as the lord paramount, and.every valid 
 title was derived immediately by charter or grant from the crown. At 
 the Revolution, the States succeeded to the title of the crown as to all 
 vacant lands, and disposed of them to individuals by patents or grants 
 It is therefore a fundamental doctrine with us that all valid individual 
 title to lands within the United States must be derived by grant from 
 the state or general government, or from the crown previous to the 
 Revolution;' and our courts will not regard a title which is not thus 
 derived and evidenced by a patent, or one presumed from the length of 
 occupancy. But our government, as the source from whence a title is 
 derived, claims no interest, reditus, or fealty, or any reversion, as lord 
 paramount, upon feudal principles, in the lands which they may have 
 granted. They only claim to be the original proprietors of all land, the 
 source whence all title is derived; but when they convey in fee, the 
 conveyance to their grantee transmits an absolute and unconditional 
 propert3'', dominium directum. 
 
 § 26. The lands within the State of Ohio were once claimed, part by 
 the State of Virginia and part by the State of Connecticut. Each of 
 these States relinquished its claims to the United States, except that 
 tract lying between the Scioto and Little Miami Rivers, reserved by 
 Virginia, and the Connecticut Reserve, by Connecticut. The title to 
 
 1 3 Kent's Com. 208. 
 
134 PRIVATE LAW. [book ii. 
 
 all the lands in the residue of the State is, as is the case io all the new 
 States and Territories, derived from the United States as the original 
 proprietor. Their patents convey an absolute and allodial property, so 
 that, even where the heirs of the grantee become extinct, there is no 
 reversionary interest in the United States. And though the State; 
 claim such lands by escheat, it claims it only as vacant land, and not 
 as the paramount lord upon feudal principles. 
 
 § 27. In the old States previous to the Eevolution, and for some time 
 afterward, some of the English tenures of feudal origin, and many of 
 their features and principles, existed in the United States. They arc now 
 nearly or entirely extinct, and but few vestiges of them remain, except 
 some words and terms which originated in the feudal tenures, which 
 are still retained as the technical language of our jurisprudence of real 
 property; but which, in most instances, have a very different import 
 from their original signification. Our legal nomenclature for real prop- 
 erty has been derived from this source, but generally with a different 
 meaning. It has given to us the etymology of the words without con- 
 ferring upon us tlie evils of the feudal system. Its remains, however, 
 are as little discernil)le in Ohio as in any other State in the Union ; and 
 by legislative enactments, and by practice, we have now as just, and as 
 little artificial, a system of real property as ever did or can exist in 
 civil societ};. 
 
 § 23. The tenures of Europe, previous to the establishment of feuds, 
 Avere allodial, i.e. ab.solute property held of no superior. And it is said' 
 that when the feud or fief (/eoditm est quod qitis tenet ab alio) was added 
 to tho estate or interest of the lord, it became allodial property. In this 
 country, where title of every superior is cut off, the tenant has an abso- 
 lute property ; and our tenures become strictly allodial. Although wo 
 still use the word fee (feodum) for the purpose of expressing the highest 
 interest which a tenant can have in lands, }'et every tenant in fee has an 
 absolute and unqualified property in his tenements. All tenants, inferior 
 to a tenant in fee-simple, hold their tenements by an absolute tenure, 
 either legal or conventional, according to the estate which they have in 
 them, carved out of the fee-simple, subject to no rent or services what- 
 ever, except what is stipulated and agreed upon between the parties in 
 th(^ conventional estate. 
 
 § 29. In feudal times, such was the prevailing ignorance that the 
 investiture of tho vassal was seldom done by writing, but by a corporeal 
 investiture, which was a symbolical delivery of possession, by tho lord 
 to his vassal, in the presence of his neighboring tenants and in sight of 
 the land. This ceremony was necessary to complete the transfer and 
 investiture of the estate, though in later times, wlien writing was more 
 
 ' Allodium est quae a nullo recognosoitur 3 Kent's Com. 398. 
 
CHAP. I.] ABSOLUTE EIGHTS AND PROPEBTT. 135 
 
 common, by a writing which accompanied it, and stated the mode and 
 quantity of service or rent to be rendered. This led in after-times in 
 England to deeds of feoffment and what was called live7-y of seisin, 
 which, as times and manners improved, frequently were grants to a 
 man and liis heirs, which laid the foundation for an ameliorated tenure 
 and estates of inheritance. But now, in this country, these feudal forms, 
 even livery of seisin, are unknown; and all transfer of landed estates is 
 by some writing, called tlie conveyance, because it is the means of con- 
 veying the title from one to the other. This is usually accomplished 
 either by a deed of conveijanee, or by a devise in a will, or by a decree 
 of court. 
 
 § 30. Property may be further distinguished into two great classes, 
 as corporeal and incorporeal property. Corporeal property is such as 
 has a real existence and is tangible, and may be possessed and trans- 
 ferred by actual possession and delivery. Incorporeal property is some 
 right, claim, or fruit connected with or issuing oat of that which is cor- 
 poreal ; or it may be some right or claim as an ideal thing, existing only 
 in action, recognized as such in law, and protected with equal regard 
 and sacrcduess as other property • which is now to be considered. 
 
 III. INCORPOREAL PROPERTY. 
 
 § 31. An incorporeal property may be like other property, either real 
 or personal. It is real when it is connected with and dependent upon 
 real property — lands and tenements, and personal incorporeal property 
 when it is disconnected with the realty, but, like other personal property, 
 is movable, and attends the person of the owner. Incorporeal property 
 is a right issuing out of a thing corporate, or concerning, or annexed to, 
 or exercisable within, the same ; or it may be a claim or right to demand 
 something unconnected with any other property, as annuity or debt 
 duo from another person and not fixed upon or connected with other 
 property. It is not the thing corporate itself, which may consist inlands, 
 houses, jewels, or the like; but something collateral thereto, as a rent 
 issuing out of those lands or houses, or an office relating to those jevv'els, 
 or a claim to be paid or ratified by another. It is a thing in itself invisi- 
 ble, and has only a mental existence, as an annuity, or government bonds 
 and the like, — the claim or property itself is incorporeal, though the 
 money or other thing which it produces, when received, is corporeal. 
 
 § 32. Incorporeal real property, or, as more commonly expressed in 
 the English hooks, incorporeal hereditaments, are rights that issue out of 
 lands and tenements, or annexed to or exercised over or within the 
 same. From their being so connected with or dependent upon real 
 propert}^ they are classed with real property, though there is but little- 
 to distinguish them from incorporeal personal property. They generally 
 
136 PRIVATE LAW. [book ii. 
 
 exist only in grant, and pass by deed, and not by livery or delivery of 
 possession, for the reason that they are incorporeal and not tangible. 
 According to the English common law, there exist a larger number 
 of classes of incorporeal rights or pi'operty than is admitted to exist in 
 this country according to our law and practice. Here they consist 
 principally of the five following named, to wit: 1, commons; 2, 
 ways, easements, and aquatic rights; 3, franchises; 4, annuities; and 
 5, rents. 
 
 § 33. I. Common, or the right of common, appears from its very 
 definition to be an incorporeal hereditament, — being the profits which a 
 man has in the land of another, as to feed his beasts, to catch fish, to dig 
 turf, coal, or gravel, to cut and take wood, or the like. And hence com- 
 mon is chiefly of four sorts : common of pasture, of piscary, of turbary, 
 and of estovers. Common in this country, from our recent settlement 
 and the nature of grants and land titles, can only exist by a special 
 grant from the proprietor of the soil. This right may be granted to 
 the inhabitants of a certain town or farm, or annexed to certain other 
 lands or town ; and then it is called a common appurtenant. Or it may 
 exist by mutual consent and convenience of two or more persons or in- 
 habitants of the neighborhood, and is called common because of the 
 vicinage. Or it may be granted to a man and his heirs ; and then it is 
 common in gross, appurtenant to neither particular lands, nor town, nor 
 inhabitants of a certain place or village, but at large, and annexed to a 
 man's person. The right of common may be limited as to quantity, 
 number, or time, or it may be unlimited ; and then it is common without 
 stint. 
 
 § 34. II. The right of way, or the right of going over another man's 
 land, is another species of incorporeal hereditaments. Here are not meant 
 public highways, but private ways, in which a particular person may 
 have an interest or a right, though another be the owner of the soil. 
 This right also must be founded upon a grant, agreement, or permis- 
 sion, either expressed or implied. When granted to a particular person, 
 it is only a personal privilege, that endures for his life only, and cannot 
 be assigned to another. 'When it is in groas to a person, his heirs and 
 assigns, or as an appurtenant, or annexed to anotlier estate, it is assign- 
 able, or it may be transferred as an incident to the estate. 
 
 § 3.5. A right of way may be acquired by implication of law, as a 
 matter necu.ssarily arising out of, or by means of, another transaction: 
 as where a man sells land to another which is wholly surrounded by his 
 own land ; in that case the purchaser is entitled to a right of way over 
 the vendor's land to and from that he has so purchased. The way is a 
 necessary incident to the grant, and without it the grant itself would 
 L-o useless. The general rule is, that when the use of a thing is granted, 
 •everything is granted by which the grantee muy have and enjoy 
 
CHAP. I.] ABSOLUTE RIGHTS AND PROPERTY. 137 
 
 such use.' If one gives to another a license to lay pipes in his land to 
 or from a cistern or other reservoir in order to convey water, he may, 
 under the license, enter on the land and dig therein in order to mend 
 the pipes. But all such privileges must be used reasonably and with 
 no unnecessary inconvenience to the persons who granted them. 
 
 § 36. The right of way, as to foot- or tow-path along the banks of 
 navigable rivers, is claimed (and indeed along all considerable streams); 
 but to what extent such claims could in this country be enforced is quite 
 questionable ; and probably each case would much depend upon the cus- 
 tom and usages in the locality. The same questions would arise in the 
 claim of way and right of landing upon the shores of navigable waters 
 for the purpose of fishing and the like. In these latter cases general 
 principles and usages would more frequently come in aid of the decision 
 of the question. 
 
 § 37. Intimately connected with this subject is the law of easements 
 or servitudes, as they have been called from thecivil law, and the rights 
 of riparian proprietors. Where the owners of land have public roads 
 or rivers running through their lands, the proprietor owns the land 
 over or through which such road or river runs, and all that is annexed 
 to the soil, in or upon it, is his, and the public are said to have an ease- 
 ment in the use of the road and navigable waters passing over the land, 
 and the necessary right of keeping the road in repair. Where the lands 
 of such proprietors are bounded by a road or river, by law, their right 
 and title to the land extend to the center of the road or river — ad filum 
 medium ; and whatever rights the public may have in the use or pass- 
 ing over them are called easements or servitudes. Subject to this right 
 of public easement, the proprietor of the land may still use and enjoy 
 whatever belongs to the land, as trees, gravel, minerals, etc., so that the 
 easement and public improvement are not interfered with. 
 
 § 38. III. Franchises are such liberty or privileges as are granted to an 
 individual or a company of persons ; and it may be to a natural person 
 or a body politic, — to one or many. Such rights and property are 
 numerous in this country, but far less so than under the English com- 
 mon law. The right when once vested gives an exclusive right, which 
 cannot be given to or be invested in another, so as to include the same 
 identical privilege, or to so interfere with it as to destroy or substan- 
 tially impair its existence. But grants of the like liberty to others to 
 operate in another place, or in mere competition, are not precluded unless 
 the prior grant was exclusive or inconsistent with such interference. Of 
 this nature are ferries, fisheries, toll-gates, markets, banks, manufactur- 
 ing companies, and the like, and so, it is apprehended, are patent-rights 
 and copyrights. But only such as are connected with realty, or belonging 
 
 13 Kent's Com. 338. 
 
138 PRIVATE LAW. [book ii. 
 
 to or issuing out of it, can be denominated incorporeal hereditaments; 
 the other franchises are personal rights and property. When a fi'an- 
 ehise has been granted to a corporation whose existence is in aid 
 to the realty, the fee is in the corporation, and the rights of individual 
 members to shares and dividends are personal property, and not inherit- 
 able unless expressly made so by the act of their creation. 
 
 § .39. lY. Annuities are yearly sums of money chargeable upon the 
 person of the grantor. When such sums are thus paj'able by the 
 government they are called pensions. Much of the same nature are 
 what in the law have been called corodien, which are the right of sub- 
 sistence, or to receive a certain allowance of victuals or provisions for 
 one's maintenance ; and a pension is intended to answer the same pur- 
 po.^c. But such rights are only personal, except when connected with, 
 or issuing out of, lands and tenements, or a lien on them ; when alone 
 they c;in be denominated incorporeal hereditaments. 
 
 § 40. V. llents are the last class of incorporeal property connected 
 with lands and tenements or incorporeal hereditaments that will be no- 
 ticed here. Bentu are defined to be certain profits issuing yearly out of 
 lands and tenements in return, redilus, to the proprietor for the use 
 thereof, and as acknowledgment of the possession. This profit may con- 
 sist of a certain sum of money, a specific article, a quantity of grain, a 
 certain amount of services or labor, and the like, or it may consist of a 
 certain portion of the product of the land, or whatever else may be agreed 
 upon, provided it be capable of being reduced to a certainty. It is usu- 
 ally reserved by the proprietor in his grants and leases of lands and 
 tenements, and paya.ble yearly at such periods as may be agreed upon. 
 Rents so reserved in leases will be more fully stated in a subsequent 
 chapter. But rent may be directly granted by the proprietor, by a deed 
 of conveyance, as in granting any interest in the lands and tenements, 
 as granting a certain rent out of the lands and tenements to a person, 
 his heirs and assigns, as of fee or any less estate, which will remain a 
 charge upon tiie land and in favor of the grantee. But such grants 
 would be very uncommon conveyance in this country ; and no impor- 
 tance would be attached to them as at common law, as we have no pro- 
 cess of distress for the payment of rent. 
 
 § 41. One of the distinctions made by the common law between cor- 
 poreal and incorporeal property was, that the first was said to lie in 
 livery, while the latter was said to lie only in grant. By recent statute in 
 England, conveyance of the realty may be by grant as well as by livery. 
 In this country livery of seisin is unknown, and all our conveyances are 
 in grant by deed. This distinction between corporeal and incorporeal 
 property does not, therefore, exist here.' But wherever incorporeal 
 
 1 "Williams's Keal Pro. 196. 
 
CHAP. 11.] ESTATES— FREEHOLD AND FOB YEARS. 139 
 
 hereditaments do here really exist, it may be, said that they are like 
 the realty of which they partake, subject of being granted or assigned 
 to another, and of descending to the heirs.' 
 
 § 42. Although the cases involving the question of incorporeal here- 
 ditaments in this countr}' are but few, still it is well for the student to 
 notice and understand the distinctions that appertain to incorporeal 
 property. Such property may be either a personalty or'a realty. A 
 franchise or an annuity may be the one or the other, dependent upon 
 whether it is personal and disconnected with the realty, or whether it 
 belongs to or issues out of land and tenements. The latter are the only 
 kind properly denominated incorporeal hereditaments. When it is a 
 personalty, upon the death of the proprietor it goes to the adminis- 
 trator with the other personal property ; but when it is connected with 
 the realty, belonging to or issuing out of lands and tenements, it is 
 then a hereditament, and goes to the heirs. If a person by a deed, or 
 other valid contract, should bind himself and his personal representa- 
 tives to pay to another for a certain period or an indefinite time, it is a 
 mere personalty, and not a hereditament. But if the payment of such 
 annuity be annexed by the grant as a lien and incumbrance upon cer- 
 tain lands and tenements, then it is a hereditament appendant to such 
 realty. If made payable to a certain person and his heirs, it is 
 said to be in gross ; but if made payable to the proprietor of certain 
 lands or tenements, it is said to be an appurtenajit to them. A fran- 
 chise to bank would partake of the personalty, for it would in no. way 
 be necessarily connected with the realty; but a franchise granted to 
 the proprietor to have a ferry and take toll, would be an incorporeal 
 liereditament, and an appurtenant to the land. Some incorporeal prop- 
 erty is always a hereditament, as ways, commons, and the like, for 
 these are always necessarily connected with the realty.^ 
 
 CHAPTER II. 
 
 ESTATES — FREEHOLD AND TOR YEARS. 
 
 I. FKEEHOLD ESTATES. 
 
 § 1. It has been seen that all property consists of two kinds — real 
 and personal ; and each is governed by a very distinct and different 
 system of laws. Heal property may be included under the term lands ; 
 
 1 3 Cruise's Dig. 285. ^ y^iUiams's R. Property, 260. 
 
140 PRIVATE LAW. [book ii. 
 
 but it may also be under tbe term teneme.nts and hereditaments. Ten- 
 ements include all property of a permanent nature which may be 
 holden, whether it be of a substantial and sensible or of an unsub- 
 stantial and ideal kind ; and, therefore, include rents, right of ways, 
 franchises, etc., as well as lands and houses. But hereditaments is by 
 far the iriost comprehensive expression, for it not only includes lands 
 and tenements, but whatever may be inherited. Hereditaments, then, 
 to use the largest expression, are of two kinds, — I. Corporeal, and II. 
 Incorporeal. 
 
 § 2. I. Corporeal hereditaments consist wholly of substantial and 
 permanent objects, such as affect the -senses, and may be seen and 
 handled by the body, all of which may be comprehended under the gen- 
 eral denomination of lands only. For under the term land not only is 
 included all ground, soil, or earth whatsoever, — as meadow, pasture, 
 wood, or marsh, — but whatever may be permanently or temporarily 
 attached or belonging to it, — as buildings, fences, and other superstruc- 
 tures, as well as trees, grain, and other vegetables growing, or water 
 flowing or resting upon it. So that the word land includes everything 
 under or over it; for it has an infinite extent downward as well as up- 
 ward. If an action is brought to recover possession of a water-course 
 or a pond, it must not be brought for so much water (in which there 
 can be only a qualified property), but for so much land covered with 
 water. Land will pass by the name of messuage, house, field, and the 
 like ; yet nothing will pass by those particular names except what falls 
 with the utmost propriety under the term made use of. But under the 
 name of land, which is a nomen generalissimum, everything terrestrial 
 will pass. 
 
 § 3. An estate in lands, tenements, and hereditaments signifies such 
 interests as the tenant has therein. So that if a man grant all his es- 
 tate in Dale to A and his heirs, everything that he can possibly grant 
 shall pass thereby. In Latin it is called status, and signifies the condi- 
 tion or circumstance in which the owner stands with regard to his 
 property. An estate may be considered in a threefold view, — First, 
 with regard to the quantitij of interest which the tenant may have in 
 the tenement; second, with regard to the time at which that interest is 
 to be enjoyed; and third, with regard to the number and connection o? 
 the tenants. With regard to the quantity of interest, estates are meas- 
 ured by their duration aud extent, and may be arranged into four 
 classes, — I. Freehold estates; II. Estates less than a freehold; III. 
 Estates upon condition ; and IV. Equitable and fiduciary estates. 
 
 § 4. An estate of freehold, liberum tenementum, is such an estate as 
 will endure for life at least; either for the life of the tenant and his 
 heirs, or for his own or another's life only, or for some uncertain 
 period, which may endure for life. An estate for some definite period, 
 
CHAP. II.] ESTATES— FBEEHOLD AND FOR YEARS. 141 
 
 as for fiye hundred years, is not a freehold, but, a term for years. There 
 is a material distinction between a freehold estate, which is limited and 
 circumscribed in its duration to the period of one or more lives, or for 
 some uncertain event, and an estate which may endure forever to a per- 
 son, and his heirs generally, or some particular heirs. The latter is a 
 fee ; but the former is a simple freehold, or freehold for life. 
 
 § 5. A fee is an estate which is unlimited in its duration, and trans- 
 ferable to the heirs of the owner. It may be limited to some particular 
 heirs, but it must be capable of continuing forever in those heirs ; or it 
 may be limited to a person and his heirs for some uncertain event, 
 Avhich may never happen, and therefore the estate may endure forever ; 
 as, so long as A and his heirs shall continue tenants of the manor of 
 Dale, or until B goes to Rome. But a limitation to a man and his 
 heirs during the life of B is not a fee, but a freehold for life ; because 
 the event must necessarily take place within the period of a life. As 
 fees may be absolute and unlimited, or may be limited to some par- 
 ticular heir.J or to some uncertain event, they are divid.ed into, — I. Ab- 
 solute, or fee-simple ; and II. Limited fees. 
 
 § 6. I. Fee-simple is the entire and absolute property in land. A 
 tenant in fee or fee-simple is he who holds lands to himself and his 
 heirs forever; generally, absolutely, and simply, without mentioning 
 what heirs, but referring that to his own pleasure, or to the disposition 
 of the law. Every restraint upon its legal operation or durability, as 
 restraints from alienation, or placing its durability upon some condition, 
 or limiting its descent, will destroy its nature as a fee-simple. 
 
 § 7. The original meaning of the word fee (feodum) is the same with 
 that of feud or fief, which is the holding of a superior, and in contra- 
 distinction to allodium, which is holding in one's own right and of no 
 superior. But as the word fee has been long used in England to con- 
 vey the highest interest which a subject could have in lands and tene- 
 ments, we have retained the use of it in this country, where the feudal 
 tenures and services do not at all exist, for the purpose of conveying 
 the same high interest, but in an absolute and unqualified property, — a 
 perfect allodial estate. 
 
 § 8. The fee of land is generally vested and resides in some person 
 or another, though divers inferior estates may be carved out of it, as 
 an estate for years, or for one or more lives,, or both. The fee-simple 
 remains vested in the grantor and his heirs during the existence of the 
 inferior estates, and after their termination the whole estate reverts to 
 them again. 
 
 § 9. According to the common law, it is necessary that the convey- 
 ance or grant should contain the word heirs, in order to convey the fee; 
 for otherwise it would be only a life estate in the grantee, there being 
 no words of perpetuity. And for this reason, if land be granted to a 
 
142 PRIVATE LAW. [book n. 
 
 person forever, or to him and hi8 assigns forever, this will vest in him 
 an estate for life only. But even in that law there are a few exceptions, 
 as — 1st, in devises by wills, to which in all cases a more liberal con- 
 struction is given ; and 2d, in grants to a sole corporation and their 
 successors, in which the word succefntors supplies the place of heirs; and 
 in grants to corporations aggregate; for as a corporation aggregate 
 never dies, but is kept up by a perpetual succession, the conveyance 
 itself is perpetual. 
 
 § 10. But as this rule is founded upon feudal principles, which were 
 hostile to any alienation of the fee, and construed such grants strictly, 
 and not according to the evident intention of the parties, it has received 
 no very favorable countenance in this country ; and in many of the 
 States it has been abrogated by express legislative enactments, de- 
 claring that the intention of the parties shall be carried into effect so 
 far as it can be collected from the grant. Upon this subject there is no 
 statute in Ohio, and it is believed no case has brought the question to a 
 judicial decision. It is probable that, in a case where the intention 
 of the conveyance was clear, the injustice of the rule would require the 
 court to disregard it. Certain it is that a court of equity would carry 
 out the manifest intention of the parties, upon the ground of mistake. 
 
 § 11. II. Limited fees. Limited fees are such estate as may endure 
 in the owner and his heirs forever, but are limited or confined by some 
 condition or qualification, and may be divided into two kinds, — 1, quali- 
 fied, or base fee ; and 2, conditional fee, or fee-tail. The first is such 
 an estate in fee as has a qualification or condition subjoined to it, which 
 must bo determined whenever the qiialification annexed to it is at an end. 
 As in tiie case of a grant to A and bis heirs, tenant of the manor of Dale ; 
 or until B shall go to Rome ; in these cases, whenever the event happen, 
 the grant is defeated. But should the event upon which the qualifica- 
 tion depend become impossible, as the death of B before he goes to 
 Home, the limitation is determined, and the estate becomes a vested fee- 
 simple in the grantee. Such estates are fees, because they may endure 
 forever; but as that is dependent, upon an event or condition which 
 may determine, qualify, or debase the purity of the donation or grant, 
 it is tiierefore called a determinable, qualified, or base fee. 
 
 § 12. 2. Conditional fee, or fee tail. Conditional fee and fee-tail are 
 estates of inheritance from which, by the grant, the general heirs are cut 
 otf, and the fee restrained to some particular heirs in exclusion to the 
 others, as a grant to a person and the heirs of his bodij, by which only 
 his lineal descendants were admitted, to the exclusion of collateral heirs ; 
 or, to the heirs male of his bodij, in exclusion both of collateral and lineal 
 females. Such a grant was called by the English common law a condi- 
 tional fee, for it was there considered that the donation was on condi- 
 tion that the donee had such heirs as those to whom the estate was 
 
CHAP. II.] ESTATES— FREEHOLD AND FOR YEARS. 143 
 
 limited ; and, if he had not, the estate would revert to the donor,— thus 
 putting it in the same situatioo as any other condition, which, when per- 
 formed, is entirely gone, and the thing to which it was before annexed 
 becomes absolute and wholly unconditional. For, as soon as the grantee 
 had any issue born, his estate was supposed to become absohite, by the 
 performance of the condition, so that he might alienate or charge the 
 land.' But if the tenant did not alienate after such performance of the 
 condition, the course of descent was not altered by it; for as the land, 
 by the terras of the donation {per formam doni), could descend to none 
 but the particular heirs, it therefore, in default of them, reverted to the 
 donor. 
 
 § 13. To prevent this construction and these consequences, the statute 
 of Westminster the second (statute de donis condUionabiliay was passed ; 
 which enacted, that from henceforth the will of the donee should be 
 observed ; and that the tenements so given should, at all events, go to 
 the issue, if there were any ; or, if none, should revert to the donor. 
 Upon this statute it has been determined that the donee has no longer 
 a conditional fee-simple, which became absolute and at his disposal the 
 instant any issue was born, but a new kind of particular estate, which 
 is denominated a fee-tail, and vests in the donor the ultimate fee-simple 
 or reversion of the land. 
 
 § 14. Estates tail are either general or special. Tail general is where 
 hinds and tenements are given to one, and the heim of Jiis bodi/ be- 
 gotten, — not restricted to any particular issue or marriage. Tail special 
 is where the gift is vested to certain heirs of the donee's body, and does 
 not go to all of them in general ; as, for instance, to the heirs of his 
 hodij on luH present wife begotten. And here it may bo observed that 
 the words of inheritance (to him and his heirs) give an estate in fee ; 
 but they being heirs of his body, gives him a fee-tail ; and it being 
 limited to on his present wife begotten, makes it a fee-tail special. 
 
 § 15. Estates in general and special tail are further diversified by the 
 distinction of se.xes in such entails, for botli of tliem may be eitlier in 
 tail male or tail female. As if lands be given to a man and his heirs 
 male of his body begotten, this is an estate in tail male general ; but 
 if to a man and his heirs female of his body on his present wife be- 
 gotten, this is an estate in tail female special. And, in case of an entail 
 male, the heirs female shall never inherit, nor any derived from them ; 
 nor, « converso, the heirs male, in case of a gift in tail female. 
 
 § IG. As the word heirs is necessary to create a fee, so the word 
 hod'j, or some other word of procreation, is necessary to make it a fee- 
 tail, and ascertain to what heirs in particular the fee is limited. For a 
 gift to a man and his heirs, male or female, is an estate in fee-simple ; 
 
 1 Williams's Ecal Property [37], 06. = 13 Edward I. ch. i. 
 
144 PRIVATE LAW. [book ii. 
 
 as there are no words, to ascertain the body out of which they shall 
 issue. This strictness, however, does not apply to devises by will, 
 where the intention of the devisor sufficiently appears. 
 
 § lY. The incidents to a tenancy in tail are chiefly these: 1. That a 
 tenant in tail may commit waste without being impeached or called to 
 an account for the same. 2. That it is subject to dower and curtesy. 
 3. That the entailment may be barred or destroyed by a, fine, by a com- 
 mon recovery, or by a lineal warranty, descending with assets to the heir. 
 
 § 18. Such is an estate tail at common law, and the statute de donis. 
 By our statute,' no estate in lands or tenements shall be granted to 
 any person but such as are in being, or to their immediate issue ; and 
 all estates given in tail shall be and remain an absolute estate in foe- 
 simple to the issue of the first donee in tail. It is uncertain what may be 
 the decision on the many questions which may arise under this statute, 
 or its practical operation, except to restrain entailments. It may or 
 may not cut off the doctrine of conditional fee at common law before 
 the statute de donis. As where an estate is granted to a man and the 
 heirs of his body, etc. By our statute the entailment is limited to the 
 issue of the first donee in tail, i e. the issue of the grantee in being. 
 Now, in case the grantee has an heir, is it a condition performed as a 
 conditional fee at common law, so that he may convey in fee-simple and 
 cut off the entailment, or does our statute, like the statute de donis, 
 prevent it? The object and policy of our statute was to limit entail- 
 ments and keep lands salable. The doctrine of conditional fee does 
 not militate against this policy, but supports it. And in case it is not 
 conditional, may not a grant be made conveying to three different 
 persons in succession ; as a grant to A for life, and then to B, his oldest 
 son (then in being), and the heirs male of his body? There A would 
 be a tenant for life, B would be the first donee in tail, and his immediate 
 issue, i.e. his son or sons, under the statute would be invested with an 
 absolute estate in fee-simple, notwithstanding that there might be fur- 
 ther limitations in the grant. 
 
 § 19. So far estates of inheritance have been treated of, and now it is 
 proposed to treat of those not of inheritance. Freehold estate not of 
 inheritance must endure for the life of some one at least, and is termed 
 an estate for life. It is either conventional, i.e. created expressly by the 
 acts of the parties ; or legal, i.e. created by construction or operation 
 of law. And, 
 
 I. Conventional estate for life is a lease, created by some deed or 
 grant of lands or tenements to a man, to hold for the term of his own 
 life, or that of another person, or for more lives than one, or for some 
 uncertain term which may last for life, as during vsridowhood, or until 
 
 1 Ohio, Stat, of December 17, 1811. 
 
cHAp.ii.J ESTATES— FREEHOLD AND FOR TEARS. I45 
 
 he should go to Rome, or a certain sum be paid him, which also are 
 freehold not of inheritance. In any of these cases the lessee is termed 
 a tenant per autre vie. 
 
 § 20. The incidents to a freehold estate not of inheritance are : ]. 
 The tenant, where he is not restrained by covenant or agreement, may 
 of common right take on the land devised reasonable estovers {i.e. 
 necessary wood for house and repairs), and whatever profits the land 
 will yield without committing waste. 2. The tenant or his represen- 
 tative shall not be prejudiced by sudden termination of his estate by 
 any other event than his own act, but shall be entitled to emblements. 
 3. Under-tenants have the same rights and privileges as the original 
 lessees, and have a right to the emblements, even where the estate is 
 terminated by the act of the cestui que vie, or he on whose life the land 
 is held. 
 
 § 21. Whenever the estate not of inheritance was the property and 
 possession of one upon whose life the estate did not depend, but was 
 depending upon the life of another, or some other event, or where such 
 owner was a grantee of a tenant for life of any kind, and died before 
 the termination of such freehold estate, it was a curious question under 
 the common law what became of the remainder of such estate upon 
 the death of such owner, and who was entitled to it or to take pos- 
 session of it. For it did not revert to the original grantor until the 
 death of the cestui que vie, or the happening' of any other event upon 
 which the estate was to revert to him ; it did not descend to the heir, 
 for at common law it was not an estate of inheritance ; it did not go to 
 the executor, for a freehold could not go to him as chattels real did.' 
 For awhile it seemed as though it were considered that the title was 
 suspended or in abeyance, and that the first possessor had the better 
 right to it ; and if the heir first took possession he was admitted to have 
 the best right, and was called tenant by special occupancy. Numerous 
 statutes were passed to secure it to a rightful owner. At length it was 
 provided' that the owner in possession might bequeath it by will ; but 
 if he died intestate that the heir at law should be entitled as special 
 occupant, and if it should not come into his possession it should go to 
 the executor or administrator; but in all instances subject to the pay- 
 ment of debts.^ 
 
 1 Stephcm's Cora. 416: Williams's Real Property [20], 50. 
 
 2 Stat. 7 Will. IV. and 1 Vict. c. 16 ;. see, also, post, Administration, oh. viil. 
 I 20-28. . 
 
 3 The estate so situated has perplexed the English lawyers as to what to call it ; 
 sometimes they have denominated it tenancy by special occupanuy ; sometimes 
 descendible freehold. In some States It is an estate of inheritance, and un- 
 doubtedly is so in Ohio. See post, ? 36; see, also, 4 Kent's Com. 27. 
 
 10 
 
146 PRIVATE LAW. [bookii. 
 
 II. LIFE ESTATE BY OPERATION OP LAW. 
 
 § 22. Legal estates for life are those estates which endure for the life 
 of the tenant by operation or construction of law. The}'' are three: 
 
 (1) Tenant in tail after possibility of issue is extinct. This estate 
 exists where one is tenant in special tail, and the person from whose 
 body the issue was to spring dies without issue ; or, having left issue, and 
 that issue has become extinct, — as where a person with an estate to him 
 and his heirs on the body of his present wife to be begotten, and the 
 wife dies without issue. In this case the person has estate tail, which 
 cannot possibly descend to any one ; and therefore this long paraphrase 
 is made use of as necessary to convey an adequate idea of this estate. 
 It can be created by the act of God only, i.e. the death of the person 
 from whose body the issue springs. This estate partakes partly of the 
 nature of an estate tail, and partly of that of an estate for life only ; the 
 tenant in tail is not punishable for waste, but, like a tenant for life, he 
 forfeits his estate by an alienation in fee. 
 
 § 2.3. (2) Tenant by the curtesy (at common law) is where a man mar- 
 ries a woman seised of an estate of inheritance in lands and tenements, 
 in fee-simple or fee-tail, and has by her an issue, born alive and capable 
 of inheriting the estate ; the husband, on the death of the wife, shall 
 hold such lands and tenements for his life as tenant by the curtesy. 
 Hence arise these requisites : 1. There must be a legal marriage. 2. 
 The wife must be seised of an estate of inheritance. She must have 
 actual seisin, and therefore a man shall not be tenant by the curtesy of a 
 remainder, or a reversion, or of an estate which descends to the issue 
 in right of the wife after her death. 3. The issue must be born alive 
 and capable of inheriting. If the issue or the mother die before the 
 birth, though it be while in labor, in neither case can the husband be a 
 tenant by curtesy. If the issue die before birth, there is no issue 
 born alive ; and if the mother die before the birth of the issue, there is 
 no issue born during the marriage, for the marriage ceased at the death 
 of the wife. The issue must also be capable of inheriting the estate; 
 therefore, if a woman be tenant in tail male, and has only a daughter 
 born, the hnsband is not thereby entitled to be tenant by the curtesy, 
 because such issue female can never inherit tlic estate in tail male. The 
 husband, by the birth of a child capable of inheriting, becomes vested 
 with an interest in the land as tenant by curtesy initiate, which was 
 not to be determined by the subsequent death or coming of age of the 
 infant. But his estate was not consummated until — 4. The death of the 
 wife, which was the last requisite to complete the estate by the curtesy. 
 Upon the happening of all these events, he becomes tenant to the free- 
 hold for life, as tenant by the curtesy. 
 
cuAP. It.] ESTATES—FBEEHOLD AND FOE YEABS. 147 
 
 § 24. Such was tenancy by the curtesy at common law ; and although 
 our statute has greatly modified it, yet as our estate of tenant by the cur- 
 tesy is built upon the common law as its basis, it is necessary that the 
 student should understand it here in order to comprehend our own. 
 The statute merely declares that the law in relation to descent and dis- 
 tribution shall not be so construed as to affect the right to any estate 
 by the curtesy in any estate of a deceased person ; and the husband 
 surviving shall be entitled to the estate of his deceased wife by the 
 curtesy, whether there has been issue born during the coverture or 
 not.^ This law therefore dispenses with all questions in regard to 
 issue, — whether-born alive or otherwise, or if there be none at all, — the 
 right, in this respect, depends on the marriage alone. By our lavi' the 
 actual seisin of the wife is not required, for as the rule of the common 
 law, which required it, was founded upon the principle that the issue 
 upon which the estate depended must be heir to the wife so as to in- 
 herit it, and no one by the rule of that law could be heir to the ancestor 
 of any land whereof the ancestor was not actually seised ; and as that 
 reason for it does not exist here, where the seisin of the ancestor is not 
 necessary to the inheritance, the rule itself does not exist, according to 
 the maxim, cessante ratione, cessat ipsa lex. The husband, therefore, 
 may have tenancy by the curtesy, though the wife be never seised in 
 deed, either actually or constructively, of the lands, and though the same 
 be adversely held during the coverture. This puts the law of tenancy 
 by the curtesy, in Ohio, on far more simple and rational principles than 
 at common law. 
 
 § 25. Tenant in Dower. — Dower is the part of the husband's estate 
 that comes to the wife upon the death of the husband. At common law 
 it is the third part of all the lands and tenements whereof the husband 
 had been seised at any time during the coverture, of such an estate as 
 the children by such wife might by possibility have inherited, and to 
 which, upon the death of the husband, the wife is entitled for life. To 
 the consummation of dower three things are necessary : marriage, sei- 
 sin, and the death of the husband, and as to which the following rules 
 may be observed : (1) The claimant must be the actual wife of the party 
 at the time of his death. 
 
 § 26. (2) The widow is entitled to dower out of any lands and tene- 
 ments of which the husband was seised at any time during coverture 
 of such an estate of inheritance as the children of that marriage could 
 by possibility inherit. It is sufficient that the husband was at any time 
 seised during coverture, if in his own right, though the title abides in 
 him but for a moment, and though the land was long since alienated ; 
 but in such case the widow is entitled to dower only according to the 
 
 1 Stat, of March 14, 18.53. 1 Swan. & Critch. 504, § 17. 
 
148 PRIVATE LAW. [book ii. 
 
 value of the land at the time of the alienation.^ She is entitled to dower 
 whenever the tenant in possession claims by a title derived from the 
 husband during coverture. And of a mortgaged estate (or equity of 
 redemptic-ij) she is entitled to dower against every person except the 
 mortgagee, or those claiming under him. There need be no issue, but 
 the estate must be such that the issue, if there were any, could by pos- 
 sibility inherit. . Therefore, if a man has issue by a former wife, and 
 dies seised of an estate of inheritance, and leave a second wife without 
 issue by her, she shall be endowed of his lands. But if there be a 
 donee in special tail, who holds lands to him and the heirs of his body 
 begotten on Jane, his wife, though Jane may be endowed of these lands, 
 yet if Jane dies and he marries a second wife, that second wife shall 
 never be endowed of the lands entailed, for no issue that she could have 
 could, by any possibility, inherit them. 
 
 § 21. (3) The widow cannot enter for her dower until it is assigned to 
 her. She is entitled to remain in her husband's capital mansion-house 
 for forty days after his death, during which time her dower ought to be 
 assigned. It is the duty of the heir (or those who hold the land) to 
 assign the dower ; and if they do not, she has a process to compel it to 
 be done. The forty days allowed the widow are called the widow's 
 quarantine, a term made use of in law to signify the number of forty 
 days, whether applied to this or any other occasion ; but the term is 
 now applied to such occasions, whether the term is forty days or any 
 other number. She cannot enter until her dower is assigned, because it 
 is uncertain what part of the land shall be hers, as she has but one-third ; 
 and that according to value, and not one-third of the quantity, without 
 regard to value. If her dower is unfairly assigned, she has her remedy 
 by an action at law, and process to assign her dower. If the thing of 
 which she is endowed be divisible, her dower must be set off by metes 
 and bounds ; but if it be indivisible, she must be endowed specially, as 
 of the third toll-dish of a mill, or a third part of the time, or a third 
 part of the rents or profits. 
 
 § 28. (4) The widow may be barred of her dower by being united 
 with her husband in the alienation of the land, — by elopement and 
 adultery, by divorce, and by jointure. Where there is a devise to the 
 wife in lieu of her dower, and she accepts of it, such acceptance will 
 also be a bar. Such is dower by common law ; let the next inquiry be 
 what it is under our law. 
 
 § 29. Our statute declares that the widow shall be endowed of one 
 full and equal third part of all the lands, tenements, and real estate of 
 which her husband was seised as an estate of inheritance at any time 
 dnring the coverture, and all lands, tenements, and real estate of which 
 
 1 1 Bac. Atr., title Dower, 2 Johns. N. Y. K. 484. 
 
CHAP, ii.l ESTATES— FBEEHOLD AND FOR YEABS. 149 
 
 her husband at his decease held the fee-simple in remainder or reversion. 
 And she shall also be endowed of one-third part of all the right, title, or 
 interest that her husband at the time of his decease had in any land 
 and tenements held by bond, article, lease, or other evidence of claim ; 
 and she shall remain in the mansion-house of her husband, free of charge, 
 for one 3'ear afler his death, if her dower be not sooner assigned to hef, 
 but dower shall not be assigned in any real estate of which her husband 
 held the fee-simple in remainder or reversion, until after the termina- 
 tion of the prior estate. Most of the incidents of common law dower 
 apply to dower, under our statute, where it is applicable. The most 
 striking difference between theui is in the fact that here the widow not 
 only has her dower in all the lands the husband was seised of in fee 
 during coverture, but also in all the interest or title in lands and tene- 
 ments which her husband held at the time of his death. It is imma- 
 terial what that interest or title may be — whether legal or equitable ; 
 whether an estate of inheritance, or chattel real — she is entitled to the 
 use of one-third in value, or the rent of it for her lifetime, if such in- 
 terest or title so long esdures. Dower in this kind of property and 
 interest can only be claimed in such interest as the husband had not 
 alienated or divested himself of, but still held at the time of his death. 
 It is only in lands and tenements which he held in fee-simple during 
 coverture, that the widow can claim dower, against his alienation, as 
 at common lavr. 
 
 § 30. The widow may be barred of her dower by the same incidents 
 as at common law, where her claim is the same, or where there are the 
 same reasons for the applications of the law. But as our statute has 
 extended the right to a large amount of property besides estates in fee, 
 the courts have been liberal in sustaining her claims when just, but have 
 sustained the bar wherever there was no equit\'. It has, therefore, been- 
 determined that although it is the policy of the law to preserve with great 
 care the right of dower when it has attached, but the right must be sub- 
 ject to all the equities that may exist against the title of the husband at 
 the time it so attaches. The right of dower arises upon the title of the 
 husband alone, and cannot be higher or better than his. If, therefore, the 
 husband, previous to the marriage or the time that dower attaches, have 
 by a valid contract disposed of his equity in the estate, so that he only 
 had the bare legal title against the outstanding equity, the right of 
 dower does not exist. Upon the same principle, it does not accrue upon 
 an estate which the husband held in trust' 
 
 § 31. The claim of dower may also be barred or resisted by a valid 
 
 ' Firestone vs. Firestone, 2 0. S. R. 415 ; or where the estate was partnership 
 property until after the partnership creditors are satisfied. Green vs. Green. 1 0. 
 E. 535; Sumner vs. IIampson,8 0. E. 328. 
 
150 PRIVATE LAW. [book ii. 
 
 marriage contract, by the husband having appropriated or dedicated the 
 land to public use, as a street, market-place, etc., and by any lien for 
 the purchase money. Land should be first paid for, before the dower 
 attaches ; or rather the dower is subject to satisfy any lien for the con- 
 sideration money or any other lien which accrued before ihe marriage, 
 and her dower only attaches to ine residue. Subject to these restric- 
 tions, the widow can only claim dower in such lands as the husband 
 was seised of as a legal estate of inheritance, or where it was a mere 
 equity or a chattel interest, then in onlv such equity as the husband still 
 held at the time of his death.' 
 
 § 32. When a widow is entitled to dower, she cannot take possession 
 or claim rent until it is assigned except by agreement. It is the duty 
 of the heirs or those who claim the land to assign dower ; and if unfairly 
 assigned she will have the protection of the court. If not assigned, she 
 may file her petition in court demanding it. From the time of so filing 
 her petition she will be entitled to one-third of the yearly rent of the 
 whole, after deducting necessary expenses, to be estimated by the com- 
 missioners appointed by the court to assign dower. The costs on the 
 petition are to be paid, one-third by the widow and the residue bj' the 
 defendants ; but if they resist her right to the dower, then in case she 
 succeeds they are to pay the whole of the costs. 
 
 § 3.3. The right of dower (being so uncertain as to where it will be 
 or its value, and contingent in its nature, etc.) is not assignable or 
 transferable until it is assigned, but may be released to the heir or those 
 who have the interest in the land.^ If the land has been improved after 
 alienation, the assignment of dower must be according to its then value, 
 excluding the increased value from such improvements, but including in- 
 creased value from other extrinsic and general causes. But iniprove- 
 .ments put on the place by the heir, after the death of the husband and 
 before assignment, are not to be excluded, for the heir, with a full 
 knowledge of the situation of the matter, improves at his own risk f and 
 so it is with his grantee. Where the estate is entire, so that no divi- 
 sion of it can be made, and the dower cannot be assigned by metes and 
 bounds, the dower may be assigned in a special manner, as of the third 
 part of the rents, issues, and profits. 
 
 1 Eands vs. Kendall, 15 0. K. G71. See 15 0. S. E. 481-507. 
 
 2 14 0. 11. 257; 5 0. U. 522. 
 
 « Dunseth vs. Bank U. S., G O. R. 7G ; Larrowo vs. Ecam, 10 O. E. 498: 8 O. 
 E. 418; 14 0. E. 518. 
 
CHAP. II,] ESTATES— FREEHOLD AND FOR YEARS. 151 
 
 III. ESTATES LESS THAN A FREEHOLD. 
 
 § 34. Of estates that are less than a freehold, there are three sorts: 
 I. Estates for 3-eara ; II. Estates at will ; and III. Estates at sufferance. 
 
 I. An estate for years is the interest which a person may have in lands 
 or tenements by means of an agreement with the owner for the posses- 
 sion of them for some certain and determinate period. Such agreement 
 or contract is called a lease ; he who lets the land or tenement, the 
 lessor ; and the tenant, the lessee. Though the lease be for a period 
 less than a j'ear, as for a half year, or a quarter, or for a number of 
 days or months, still the lessee is styled a tenant for years; and the 
 period for which the lease is granted, is called a term. Bj'' the English 
 common law, no interest in lands less than a freehold (which was 
 accompanied with livery of seisin in the transfer of possession) was 
 looked upon as convej-ing any indefeasible right in the soil. It had its 
 origin in the feudal tenures, in the arrangements between the landlord 
 and the tenant, or the lord and his vassal, by which the latter was to 
 do fealty, and render service for life, and possession was given by livery 
 of seisin upon the premises. No less estate was looked upon as giving 
 any vested and indefeasible right to the possession of the land. Leases 
 for years were considered only as an agreement between the landlord 
 and the tenant for the cultivation of the land; the tenant rendering 
 some part of the crop, or other rent, for the use of the land. The 
 tenant was not allowed to have a freehold estate, but his interest might 
 be defeated by the landlord alienating the land, until the relation of 
 landlord and tenant should be renewed or acknowledged between them, 
 and this was called an attornment. Looking upon such a lease, on the 
 account of its then precarious nature, as only a contract for the posses- 
 sion, they considered the estate of the tenant as only a chattel interest; 
 and as such, it was, after his death, vested in his executor, and did not 
 descend to his heirs ; and such is now the law in England. 
 
 § 35. But in this State a lease properly executed for any term would 
 convey a vested interest and as indefeasible estate as an estate for life, 
 or any freehold. By the course of legislation and decision of the 
 courts, it seems that what are here called permanent leases are considered 
 estates of inheritance, and are treated in every respect as freehold 
 estate ; but leases that are not considered permanent leases are put 
 upon common law principles, and treated accordingly. But it may bo 
 well contended that as the reason of tiie English doctrine as to leases 
 for a term has ceased. here, the law itself has become obsolete and in- 
 applicable ; at least, to all such leases as have been executed in con- 
 formity with the statute, which requires that any deed, mortgage, or 
 other instrument of writing, by which any lands, tenements, or heredit- 
 aments shall be conveyed, or otherwise affected or incumbered in law, 
 
152 PBIVATE LAW. [book ii. 
 
 shall be signed and scaled by the grantor or maker, and acknowledged 
 in the presence of two witnesses, who shall attest the same, and sub- 
 scribe their names to such attestation ; and the same shall also be 
 acknowledged by such grantor or maker before an ofScer having au- 
 thority to take such acknowledgment, who shall certify the same on 
 the same sheet or instrument of writing, and shall subscribe such cer- 
 tificate. Such deed or other instrument of writing must be recorded 
 within six months; but if not so recorded, still it remains good and 
 valid between the parties, except that it is deemed fraudulent so far 
 as relates to any subsequent bona fide purchasers, having no knowledge 
 of such prior deed or instrument of writing. This law includes, of 
 course, a lease, which, in order to convey a legal estate, should be exe- 
 cuted in the manner this law points out. But the law provides that 
 nothing therein shall be construed to affect 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. 
 
 § 36. Whether such lease, so executed for a term of three or more 
 j-ears, was an estate of inheritance, and in its sale on execution should 
 be treated as a freehold or as a mere chattel, or not, has been a question 
 of much contention in our courts. Our supreme court, in one case, 
 said : " For all purposes connected with the laws regulating judgments, 
 executions, sales, and descents, permanent leasehold estates are to be 
 regarded as though they were freehold, and not chattels."' In a sub- 
 sequent case the court confined this doctrine to pervianent leases; but 
 maintained the common law doctrine, with all its ab.surdities, as to all 
 other leases for years, which were not a permanent lease, and did not 
 amount to a freehold at common law.'' But, then, what is a permanent 
 lease ? Tlie court, in those cases, made a lease for ninety-nine years, 
 and renewable forever, unquestionably a permanent lease. But, then, is 
 not a lease for nine years, and renewable forever, equally a permanent 
 lease ? And is not a lease for a hundred or a thousand years a permanent 
 lease, and as much a freehold as a lease for life, which, in all human 
 probability, will not last over thirty or forty years? How absurd it is, 
 that, when a tenant dies seised of a lease for a thousand years, it is to 
 go to his administrators, but when the lease is for the life of another, 
 which probably expires in thirty or forty years, it will go to the heirs as 
 a descendible freehold or as special occupants ! The only consistent and 
 rational doctrine would be to say that as the reason of this anomnlv and 
 inconsistency in the common law has ceased, the law Itself has ceased ;, 
 
 ' Loring vs. Melendy, 11 0. R. 355; N. Bank of Kentucky vs. Eoosa, 13 0. R. 
 334. 
 2 N. Bank of Kontiicky vs. Eoosa, 13 0. E. 334. 
 
CHAP n.j ESTATES— FBEEHOLlD AND FOR TEARS. 153 
 
 to take the period indicated by the legislature itself, i.e. the term of 
 three years, as the period that distinguished those leases which would 
 go as chattels to the administrators, from those which would endure a 
 longer period than three years from the death of the intestate, and 
 should be descendiblis estate, and go to the heirs.^ 
 
 § 31. A freehold estate at common law could not be created with- 
 out livery of seisin, or corporeal possession in law ; but a lease for a 
 term might be created without it. Hence a lease for years might be 
 created to commence in future, though a lease for life, being a freehold, 
 could not ; and the lessee for years was not said to be seised, but pos- 
 sessed of the term. The lessee was not supposed to be vested with any 
 estate by the lease, but it only gave him a right of entry upon the tene- 
 ment, which right was called an intere.-it in the term ; but when he had 
 so entered he was then possessed of the terra ; but the possession or 
 seisin of the land remained still in him who had the freehold. But here, 
 in this State, all conventional interest in land is created by deed (which 
 is not a mere equitable interest) in the manner above stated. And every 
 such deed so executed conveys an ab.solute interest and estate in the land 
 to the extent of the words of the conveyance, whether it be a term, a 
 freehold, or a fee; and there is no livery of seisin or anything of that 
 kind needed, for the lease or other conveyance of itself transfers the 
 estate or interest in the land without any corporeal possession being 
 required in any case. This is another reason why here a lease for a 
 term should be considered real estate, and descendible to the heir as an 
 estate of inheritance, and be invested with all the qualities of a freehold. 
 
 § 38. The word term not only signifies the time specified in the lease, 
 but the interest and estate which the lessee has in the land ; and there- 
 fore the term may expire during the continuance of the term, as by sur- 
 render, forfeiture, and the like. For which reason if J grant a lease to 
 A for the term of three years, and to B for six years after the cxpira^ 
 tion of the said term to A, and A at the expiration of one year sur- 
 renders or forfeits his term, B's term shall immediately commence; but 
 it would be otherwise if B's term was to commence after the expiration 
 of the said three years, or the said time. 
 
 § o9. A lease for a longer term than three years should be by deed 
 attested by two witnesses and acknowledged, in order to be, by the laws 
 of Ohio, an effective conveyance of the land or tenement according to 
 its terms. An informal written lease for a term not exceeding three 
 years v/ould be good and valid according to its terms ; and even a 
 parol lease, and possession taken in pursuance of the contract, so as by 
 
 1 TVhfin a tenant /)cr autre vie dies intestate in Knp;land and New York, such 
 term lor years goes to the heirs, and is called a special occupancy, and sometimes 
 a descendible freehold. See ante, § 21 ; 4 Kent's Com. 27. 
 
154 PRIVATE LAW. [book ii. 
 
 the part performance to take it out of the statute of frauds, will be good 
 probably for the three years ; and, where it is for a longer term, by pro- 
 ceedings in equity for specific performance, it might be made effectual 
 for the whole term. Such parol lease, and possession being given in 
 pursuance of it, for a term less than three years, is withdrawn from the 
 operation of the statute of frauds;' and it is apprehended that such a 
 lease for a longer term with the possession being given, and the terms 
 for the payment of rent and other matters being faithfully kept by the 
 tenant, or reasonable excuse for not doing so, would be made effectual 
 in equity by a decree for specific performance. Where a lessee has been 
 put into possession under a parol, or other informal and voidable lease, 
 the tenant will at least be entitled to be treated as a tenant from year 
 to year, and entitled to a previous notice to quit at the end of a year. 
 A lease of a separate incorporeal hereditament was always required to 
 be by deed.^ 
 
 § 40. All leases usually contain covenants for the payment of rent 
 and other stipulations more or less. These covenants run with the 
 lease, and bind every one connected with the estate. The lessee and his 
 administrators will always be bound, although the lease may be as- 
 signed ; and the lessee has always a right to assign his lease, unless he 
 is restrained by covenants. When the lease is assigned, the lessor and 
 assignee have mutual rights against each other for the covenants con- 
 tained in the lease and running with the land, — the assignee by the 
 assignment, and therefore boun<l to pay the rent ; and the lessor, though 
 no party to the assignment, is bound by his covenants in the lease, by 
 the privity of estate, which is said to arise between them, by means of 
 which such covenants may be enforced against each other.' But any 
 pei'son who takes a less interest from the lessee than a transfer of the 
 whole leasehold, is not an assignee, but an under-tenant, and the rela- 
 tion of an assignee does not subsist between him and the lessor. This 
 is the case where the whole term, or the whole of the land, is not trans- 
 ferred,* or where any interest is still retained by the lessee. Cut where 
 the transfer is made of the whole, the assignee is bound for what be- 
 com.vs duo during the continuance of his interest, and also the rent pre- 
 viously unpaid,* whether his assignment was made by the lessee or by 
 the sheriff on execution. But if tliere were an express covenant on the 
 part of the lessee for the whole, the lessor may at his election pursue 
 either or both for payment.* 
 
 § 41. The payment of rent and the performance of any covenant are 
 
 1 Grant vs. Kamsey, 7 0. S. E. 1.57. « Williams's Real Property [327], r,34. 
 s Williams on Real Property, 331; SntliffM. Atwood, 15 O. S. E. 183. 
 < Fulton vs. Stuart, 2 O. R. 215. s Williams's Real Property [331], 038. 
 
 « Sutliff OT. Atwood, 15 0. S. R. 136. 
 
CHAP. II.] ESTATES— FREEHOLD AND FOR FEARS. 155 
 
 usually secured in leases by a proviso or condition for re-entry on breach 
 of the covenant, which enables the landlord, on non-payment of the 
 rent, or non-performance of the covenant, to re-enter on the premises 
 let, and take possession as thongh there were no lease.' But Iti order 
 to make such forfeiture effectual, great care is requisite in taking .^uch 
 steps in due time, for the purpose of securing the forfeiture by law. The 
 exact rent due by the terms of the lease must be demanded on the day 
 \Yhen due, immediately preceding sunset, sufficient space of time before 
 for counting and paying the money; and the demand must be made, when 
 no place is named for [layment, at the most public and notorious place 
 upon the premises ; and, if a dwelling-house be on the premises, at the 
 front door thereof. All this precaution is necessary in order to secure 
 a right of re-entiy, and to be entitled to recover possession. This is 
 so because the courts did not favor forfeiture, and required of the lessor 
 the strictest performance of every condition necessary to make the for- 
 feiture complete ; and then courts of equity, within a reasonable time 
 and upon reasonable terms, would grant relief against the forfeiture. 
 
 § 42. II. Edate at will. An estate at will is where lands and tene- 
 ments are let by one man to another, to hold at the will of the lessor, 
 and the tenant, by force of the leases, has obtained possession. Such 
 tenant has no certain indefeasible estate, — nothing that can be assigned 
 b}' him to another, — because the lessor may determine his will, and put 
 out the lessee whenever he pleases. But every estate at will is at the 
 will of both parties, landlord and tenant, so that either of them may 
 determine his will, and quit his connection with the other at his own 
 pleasure. But the tenant was entitled to emblements, at least when 
 the tenan'cy was terminated by the landlord. 
 
 § 43. This estate is terminated by any act of the lessor or lessee 
 which is inconsistent with a will that the estate should continue : as, 
 an express determination of the will of either, with a notice to the 
 opposite party; or by the lessor entering upon the premises and taking 
 possession; or creating an estate to another inconsistent with the 
 estate at will; or by any act of desertion by the lessee, as by assigning 
 his estate to another, or committing waste, which is an act inconsistent 
 with such a tenure; or by the death of either party. But when there 
 is a demise without any certain period mentioned for which it should 
 endure, and esjjecially if there is an annual rent reserved, courts have 
 leaned against construing them as tenancies at will, but as tenancies 
 from year to year, as long as both parties are pleased, and will not 
 suffer either party to determine the tenancy, even at the end of the 
 year, without a reasonable notice, which is said to be six months. 
 
 1 Williams's Real Property [332], 339 ; Boyd vs. Talbert, 12 0. E. 212; Smith 
 ■OS. Wtiitbeck, 13 O. S. R. 471. 
 
156 PB IV ATE LAW. [book ii. 
 
 § 44. III. Ei^tale at sufferance. An estate at suflevance is where one 
 comes into possession, of land by a lawful title, but holds over after 
 the expiration of his first estate, without any title. As if a man, after 
 the expiration of a lease to him granted for a yoar or any other term, 
 continues to hold the premises without any fi'esh lease from the owner 
 of the estate ; or if a tenant at will continues in possession after the 
 tenancy at will has been determined by the death of the owner, he 
 thereby becomes a tenant at sufferance. This estate can bo destroyed 
 by the owner only by his raakin": an actual entry on the land and oust- 
 ing the tenant, — for before entry he cannot maintain an action of tres- 
 pass against a tenant by sufferance, as he might against a stranger, and 
 the reason is because the tenant being in by a lawful title, the law 
 (which never presumes a wrong in any man) will suppose him to con- 
 tinue upon a title equally lawful, unless the owner, by some public and 
 avowed act, such as entry is, will declare his continuance to be tortious 
 or wrongful. 
 
 IV. LANDLORD AND TENANT. 
 
 § 45. There are certain rules and principles incident to all estates — 
 especially tliose for a term — between the landlord and tenant that will 
 more appropriately come under this head, as incident to the estates just 
 treated of, than under any other. When a person is in possession of lands 
 or tenements, claiming to hold by virtue of a demise from the owner, 
 there is always a privity subsisting between them. If the lease be 
 directly from the landlord to the tenant in possession, then the iirivitij 
 is by contract; but in case the tenant is in possession by some transfer 
 from the lessee, either by an assignment from him or by a transfer by 
 a sale on execution in payment of the lessee's debts' (for hero all inter- 
 ests in lands are subject to the claims of creditors), there is Vkprivit}/ 
 by extate. An underlessee is the tenant of the underlessor, and not of 
 the original lessor; for between him and the underlessee no privity \s 
 said to exist. Thus, the original lessor cannot maintain an action 
 against the underlessee (who is not an assignee of the whole term) for 
 any breach of the covenants contained in the original lease. His 
 remedy is only against the lessee or his assignee ; for the underlease is 
 a new matter, with which the lessor is.entirely unconnected. 
 
 § 4G. To create the relation of landlord and tenant, there must be an 
 agreement, either expressed or implied, between them. Therefore, 
 where one is in possession, claiming to hold adversely under a different 
 title, and there is no circumstance to show expressly or by implication 
 that he is tenant of him who claims to be his landlord, he is not liable 
 in an action as upon contract for rent, or for use and occupation ; where 
 
 ' SiUliff vs. Atwood, 15 0. S. E. 186. 
 
CHAP. II.] ESTATES— FREEHOLD AND FOR YEARS. 157 
 
 he enters under circumstances which show that he does not recognize 
 the owner as his landlord, the remedy is trespass for mesne profits 
 after a recovery in ejectment, oi- otherwise recovering the possession.' 
 
 § 47. A lease from year to year (or, in case of mere tenancy, from 
 month to month, where that has been the customary mode) has become 
 a favorite and advisable arrangement between the landlord and tenant, 
 and is much favored by the courts, who labor to turn all uncertain terms 
 and leases at will and by sufferance into tenancy from year to year, as the 
 most favorable arrangement for both parties. Such lease is supposed to 
 continue, unless the landlord, six months before the close of a year, give 
 notice that he will then consider the lease determined and take posses- 
 sion. If the tenant holds over by consent (and such consent is pre- 
 sumed unless it is expressly rebutted), after the determination of a 
 lease for years, it is held to be evidence of a new contract, and con- 
 strued to be a tenancy from year to year.^ When the tenant is suffered 
 by the landlord to continue on into the next year, without notice to 
 quit, there is a tacit renewal of the contract for another year, and to 
 put an end to such renewed lease, six months' notice to quit must be 
 given prior to the termination of the year, for the purpose of being 
 entitled to recover the possession. It being uncertain at the end of 
 what year the landlord would terminate the lease, it is reasonable that 
 due notice of such determination should be given to the tenant, so 
 that he might be prepared for the event. This notice, by the common 
 law, is fixed at six months; and that is the rule in many of the States, 
 though some have fixed it at three months. It is believed that the 
 length of notice required is not entirely fixed in Ohio. Where houses 
 are let by the month, and the term is permitted to go on from month to 
 month, the notice should be one month. 
 
 § 48. The reservation of an annual rent, it is said, is the leading cir- 
 cumstance that turns a lease from uncertain terms into one from year 
 \o year ; and if a tenant is put into possession of the land without the 
 rent being fixed, he is a mere occupier and tenant at will, where the 
 six months' notice is not required. But at the present time, whore a 
 tenant is so put into possession of a farm for agricultural purposes, where 
 the law would raise an implied promise to pay reasonable rent, it would 
 be safer to consider such tenancy a lease from year to year, which would 
 require notice to quit. But when the landlord lets to a cropper a por- 
 tion of his land for one year, to pay the rent in'a part of the crop, the 
 tenant acquires no exclusive right of possession, and has no right to 
 remove the entire crop until the rent is satisfied, and those engaged in 
 such removal will be liable in trover for the landlord's share. ' 
 
 1 Butler vs. Cowles, 4 O. E. 205; Cincinnati vs. Walls, 1 0. S. R. 222. 
 a Williams's Eeal Property [32.5] ; 4 Kent's Com. 110. 
 s Case vs. Hart, 11 O. E. 364. 
 
158 PRIVATE LAW. [book ii. 
 
 § 49. When the lease is for a specific term, it is the right of the land- 
 lord to take possession at its termination without a previous notice; for 
 such notice is only required where the termination is not fixed by the 
 lease and unknown by the tenant, as a tenant by year ; but when the 
 tenant is permitted to continue after the termination of his term, then 
 he becomes tenant from year to year, and entitled to notice. When the 
 lease terminates by its own terms, or when a lease for an uncertain term 
 is determined by proper notice to quit, and the tenant, notwithstanding, 
 holds over after the expiration of this term, without reason to suppose 
 that his doing so was assented to by the landlord, the landlord may 
 then reenter upon the tenant so holding over, and remove him and his 
 goods with such gentle force as may be requisite for the purpose, and 
 the tenant would not be entitled to resist or sue him for doing so ;' or he 
 may take legal proceedings to oust him, for his possession after a de- 
 mand is a wrong. But when the landlord proceeds to oust the tenant 
 himself— as he may do — care must be taken by both parties that they 
 do not commit any breach of the peace. 
 
 § 50. Leases frequently contain covenants for their renewal ; but 
 unless they contain such covenants the landlord is not bound to renew. 
 Such agreements to renew give value to the lease as well as advance 
 public policy and interest by inducing improvement and better culture. 
 In Ohio, leases renewable forever are denominated permanent leases, 
 and are put in the same position as inheritable freeholds.^ Such cove- 
 nant to renew is a real covenant running with the land, and will be 
 binding upon whoever may be entitled to the reversion. 
 
 § .51. A tenant is not permitted to commit waste ; and if be do he is 
 liable to a prosecution and may be restrained by a court of equity. The 
 strict doctrine of the common law in regard to waste has never obtained 
 in Ohio ; for it is here well settled that many things may be done by the 
 tenant for life, which if done in England would be waste, as the conver- 
 sion of meadow or pasture into plowland, or of woodland into a farm'. 
 And a more reasonable and liberal rule would be adopted as to all ten- 
 ants even for a term having a right to take reasonable estovers,^ that is, 
 wood from off the land for fuel, fences, and other like objects of necessary 
 improvements, in the same manner as the tenant for life has it at com- 
 mon law. But under this pretense the tenant must not destroy valuable 
 timber, nor do permanent injury to the reversionary interest, for that 
 would expose such tenant to a prosecution for waste. 
 
 § 52. A tenant who has taken a lease, and covenanted to pay rent 
 during the term, is still liable to pay the rent notwithstanding that a 
 
 1 4 Kent's Com. 116. 2 See ante, this ch., § 3. 
 
 3 Broom's Max. 626. " Tenant for years is entitled to estovers as well as a tenant 
 for life." 
 
CHAP. II.] ESTATES— FREEHOLD AND FOR YEARS. 159 
 
 most valuable part of the premises may have been destroyed by fire, 
 unless there be some provision made for such unavoidable accident. 
 But it may be otherwise when the tenant is only a lessee of a room, for 
 then, when the building is destroyed by fire, all the interest of the lessee 
 in the premises is gone.' A person who has received possession as a 
 tenant is not permitted to question the title of his landlord, or take or 
 set up his title in another, and therefore cannot, on the question of title, 
 resist the payment of rent, while he enjoys his term, without an eviction. 
 
 § 53. The rent that is reasonable and customary may be recovered 
 by the landlord against the tenant in an action for the use and occupation, 
 though no specific rent be agreed to be paid, upon the implied obligation 
 to pay it.^ And where the demise was by parol or an informal written 
 lease which was void as a lease wanting the requisite formality of the 
 law, it may still be used in evidence to prove the value of the occu- 
 pation as agreed upon by the parties.* Where a tenant is permitted to 
 continue after the termination of his special lease, as tenant from year 
 to year, the rent will be according to the former lease, unless there be 
 some new arrangement to the contrary. Where the estate of the land- 
 lord has been transferred to another, either by descent or assignment, 
 the rent that falls due after such event is due and payable to him who 
 is entitled to the reversion.* The rent, in Ohio, can only be collected 
 by an action in the same manner as any other debt, for here we have 
 no process of distress to distrain for the rent, as at common law or in 
 some of the States.* 
 
 § 54. Rent is an incident attendant on the reversion. Where a person 
 who has a freehold grants a lease reserving rent, and afterward grants 
 the reversion, the rent is also granted and passes as incident thereto. 
 So, also, where the lessor conveys in fee-simple. But the rent may be 
 separated from the reversion ; as where the lessor grants the rent to 
 one and the reversion to another. In that case the rent does not attend 
 the reversion.' He who holds the reversion is entitled to the rent, 
 unless the tenant has attorned to another to whom the landlord has 
 granted the rent. When the rent falls due before the death of the 
 landlord, it is to be paid to his personal representative ; but when it 
 falls due after, it is to be paid to the heirs or the person entitled to the 
 reversion.' When the lessor's estate was a term which went to his per- 
 
 1 "Winton vs. Cornish, 5 O. E. 477. 
 
 2 1 T. E. 378 ; 3 Met. E. 76. As to rent in general, see 2 Washburn, Eeal Prop., 
 5-18. 
 
 3 Wilson vs. Trustees of Sect. No. 16, 8 0. E. 174; Bridgmans vs. Wells, 13 
 O. E. 43. 
 
 * ''Eent is incident to the reversion, and by a general grant of the reversion 
 the rent will pass." — Broom's Max., 435. 
 5 3 Kent's Com. 380. » Co. Lit., 208, a, n. 105, 3d vol. 
 
 ' 1 Saund. E. Williams's Edi., 234, n. (4.) 
 
160 PRIVATE LAW. [book ii. 
 
 sonal representatives, and not to the heirs, the rent would be payable to 
 them until they had disposed of their whole interest, rent, and reversion. 
 AVhen the lessee or his representatives have assigned the term, and the 
 lessor has accepted rent of the assignee, the assignee thereafter becomes 
 subject to the payment of the rent, and the lessor may have an action 
 to enforce the payment. After such attornment the lessee, who so 
 assigned, is not liable for the payment of the rent, except upon an 
 express covenant to pay the rent during the term.' When tho tenant 
 has been ousted out of a part of the leased premises by the lessor, he 
 may allege that in bar of the whole rent.^ When the rent is only pay- 
 aJjle at stated periods, and the lease terminates, as by the death of the 
 sesque per vie, before the rent becomes payable since the last pay-day, 
 the tenant might refuse to pay such rent by quitting the premises ; for 
 he is not bound to pay the rent for the whole term, as be has not en- 
 joyed it, nor a pro rata part, unless that is provided for in the lease.' 
 In England they have remedied this by statute,* but we have no such 
 statute in Ohio. 
 
 § 55. Where the tenant's lease, as when its termination depends upon 
 some uncertain event, as a lease for life, should be determined by 
 some unexpected event, or for the life of the tenant, or for the life of 
 another, the tenant, or his personal representative, would be entitled to 
 what in law is called the emblements. This terra applies only to the 
 products of the earth which are annual, and raised by the expense and 
 labor of the tenant. It includes grain, roots, and the like, which are 
 the annual products of the soil, produced by labor ; but it does not 
 include grass, fruit, and the like, which are not the annual production 
 of the soil and labor. But where the termination of the lease is known 
 and fixed, or where the lease was determined by the tenant's own 
 action, he is not entitled to the emblements ; for it was the tenant's 
 folly in planting or sowing when he knew that his tenancy was about 
 to expire, or would expire by his own wrong. The law of emblements 
 is founded upon the reason and policy of securing to those who in good 
 faith bestow their labor, the fruit of their industr}^, — that he who right- 
 fully sows should reap the profits of his labor.* In Ohio, the persons 
 rightfully in possession when land is sold on execution or partition 
 made, are treated as tenants, and entitled to emblements ; but should 
 the judgment debtor sow after sale, and before the confirmation and 
 deed, he would not be entitled to such emblements, for then he sowed 
 in bis own' wrong, and understood his peril." 
 
 § 56. The law o{ fixtures is another subject connected with tenancies 
 
 ' 1 Saund. E. 241, n. (5.) 2 1 Saund. E. 206. 
 
 3 2 Bliickst. Com. 127. * 11 Geo. III., c. 19. 
 
 6 4 Kent's Com. 71 and 108. « 12 0. K. 88; 15 O. S. K. 351. 
 
CHAP. II.] ESTATES-FREEHOLD AND FOR YEARS. 161 
 
 like that of emblements. A fixture is said to be an article which was a 
 chattel, but which, by being affi.xed to the realty, became accessory to 
 it, and parcel of it.' As to the term fixture, there has been some criti- 
 cism whether the term can properly be applied to any article except 
 those that may be severed from the freehold, and not to those that are 
 not by law removable. But in reality the term is always applied to 
 such articles as were once personal property, but have become annexed 
 to the realty, and concerning which there is a question whether it is 
 still a subject that may be removed or not. In such cases the question 
 frequently is, whether the ai'ticle in question is personal property, or 
 has become a fixture, or has become so absolutely annexed to the realty 
 as to be a part of the freehold. In the first instance, the claimant will 
 contend that the article has never been so annexed to the premises as 
 to become a fixture ; in the second, he may admit that it has been so 
 annexed as to be a fixture, but, according to the rules of law, it is 
 still subject to be severed and removed; and, in the third instance, 
 the landlord may claim that it is so absolutely annexed that it could 
 not be severed without injury to the premises; and, therefore, the law 
 would not permit it to be severed under the most favorable claim of 
 fixture. 
 
 § 57. English writers say that there are three classes of cases : 1. 
 Between the heir and the personal representative of the deceased owner 
 of the land, where the general rule obtains with the most rigor in favor 
 of the inheritance, and against the right of severing it, and considering 
 it as personal chattel which has been affixed to the realty. 2. Between 
 the personal representative of the tenant for life or in tail and the re- 
 mainderman or reversioner, where the right to fixtures is considered 
 more favorably for the personal representative than in the preceding 
 case. 3. Between landlord and tenant, where the greatest latitude and 
 indulgence have always been allowed in favor of the tenant. The 
 tenant may take away, during the continuance of the term or at the 
 end of it, but not after he has quitted possession, such fixtures as he 
 has himself put upon the demised premises, either for the purpose of 
 trade,'' or for the ornament or furniture of his house ; but this indul- 
 gence is only allowed as to such fixtures as were put there with the in- 
 tention of so removing them, and which can be removed without material 
 injury to the premises compared with its previous condition. 
 
 § 58. In this country, conflicts as to fixtures rarely or never occur, 
 except in two classes of cases: 1st, between landlord and tenant; and 
 2d, between heirs and personal representatives; and the rules here 
 
 J Teaff w. Hewett et al., 1 O. S, R. 511 ; Broom's Max. 370. 
 2 Broom's Max. 377, where distinction is made between trade and agriculture. 
 See EedfielJ on Wills, where it is disapproved, 2 Kedf. Wills, 145. 
 
 11 
 
1G2 • PEIVATE LAW. [book ii. 
 
 should include a number of other cases as belonging to the class, viz., 
 between vendor and purchaser, the devisee and heir, and the judgment 
 creditor on execution and defendant in possession of the premises. 
 The rules which determine vs^hether the article contended for is still 
 personal property, or has become annexed to the realty as a fixture, 
 should be the same in all cases; i.e. all articles that have been so placed 
 by the owner with the intention of being a fi.xture for the use or con- 
 venience of the premises, or so fixed that they cannot be removed with- 
 out injury to the premises, compared with their situation before they 
 were placed there ; or fastened to the premises, or attached to it with 
 the intention that they should permanently remain there for either use 
 or ornament. When the article has been so fixed it is not subject to be 
 removed without the consent of him who has the title to the realty. To 
 this there should be only the exception in favor of the tenant who in 
 good faith has put it there for his temporary purpose, as stated above in 
 the rule in his favor.' 
 
 § 59. In determining the question whether the article called the fix- 
 ture may be removed, or has become a part of the realty and irremov- 
 able, it becomes material to ascertain who placed it there, and what 
 was the intention and object of so doing. If it were a statue set up 
 by a stranger, with the consent of the owner, as a temporary ornament 
 to the premises, it is still the personal property of the stranger, and he 
 may reclaim it, and sever it from the soil where it is set up or stands. 
 If, however, it were set up and fixed there by the owner of the freehold 
 as a permanent ornament to the premises, it becomes a part of the free- 
 hold, and not subject to be removed.' The freehold is not to be stripped 
 of even its ornaments, without the consent of the owner. But if such 
 article were put there by a tenant, as a temporary ornament, be maj' be 
 allowed to remove it at the end of his term, or before he leaves the 
 premises. The supreme court of Ohio has fixed upon the following 
 rules in determining whether an article is a fixture' or not, to wit : 
 1st. Actual annexation to the realty, or something appurtenant thereto. 
 2d. Appropriation to the use or purpose to which that part of the realty 
 with which it is connected is appropriated. 3d. The intention of the, 
 party making the annexation to make a permanent accession to the 
 freehold. 
 
 § 60. Although these rules may be well claimed as aids in determin- 
 ing the character of the article in question, as to its being a fixture, yet 
 in the great conflict there is in the cases upon the subject, and the great 
 difficulty in ascertaining the intention of the party annexing the article, 
 
 1 See § 23, pi. 3, rule in favor of the tenant. 
 
 ' Snedeker vs. Warring, 2 Kernan, 170 ; 2 Eedf. Wills, 150. 
 
 s Teaflfcs. Hewett, et al., 1 0. S. K. 511. 
 
CHAP, n] ESTATES-FREEHOLD AND FOR YEARS. 163 
 
 as well as in the application of other rules as well established as these, 
 the rules themselves become of difficult application. For the intention 
 is usually deduced from the relation that the person who annexed the 
 article to the realty had in the premises, for if he was a tenant, and 
 not a person whose interest in the realty would induce him to make the 
 improvement (for as a matter of public policy, as well as substantial 
 justice, the tenant may remove where he has made the annexation for 
 temporary convenience or for the purpose of trade or business, and with 
 the evident purpose of removal), he may disannex during the term, 
 when that can be done without sensible injury to the other erections or 
 the premises, and where the removal is consistent with the known 
 usages of the business ;' for the sense of public justice would be out- 
 raged by permitting such improvement to become forfeited to the land- 
 lord without merit, and so discourage such improvements and business. 
 In such case the intention is deduced from these facts alone. But it 
 seems that nothing which was erected for permanent use and advantage 
 of the land, and which at the time of its erection or annexation was in- 
 tended to remain permanently upon or attached to the soil, can ever be 
 removed by any one except him who has the right, of property both in 
 the fixture and the soil. 
 
 § 61. It is well here for the student to notice how difficult it often is 
 to distinguish between what is personal property and what belongs and 
 appertains to the realty. Some things in their nature movable still ap- 
 pertain and belong to the realty, not as fixtures, but as appropriated 
 find essential to the proper enjoyment of the realty itself, and of little 
 or no value when separated, — as the keys, deeds, and muniments of 
 title, deer in the park, or fish in a pond.^ But there are other things 
 sometimes denominated fixtures which are part of the realty, though 
 they are no more attached than their own weight, but being appropri- 
 ated to the use, adding to its value, and proper or essential to its enjoy- 
 ment, they become a part of the realty itself, — as the crane in the fire- 
 place, the gate merely hanging on its hinges, the hopper in the mill, 
 resting in its place, the rail merely resting by its own weight on the 
 fence, — and whoever put them there must have intended them as part 
 of the realty. Whatever is thus annexed and appropriated to the realty 
 becomes a part of the premises, and no one can claim the right to sepa- 
 rate it against the interest of the owner of the soil, unless it may be a 
 tenant, and then the question is whether he did not intend to perma- 
 nently appropriate it as essential to the enjoyment of what was the 
 realty. Whatever is so annexed to the realty can be removed by no 
 one, without the consent of the owner of the soil, for the maxim is, 
 quicquid plantatur solo solo cedit. 
 
 J 2 Redfield on Wills, 145 and 150. 
 
 ' See chap, on Personal Property, post, ch. vii. J 1-9. 
 
164 PRIVATE LAW. [book tf. 
 
 § 62. A tree growing on the soil is a part of the realty. "When it la 
 cut down and severed from the soil, it becomes personal property, and 
 the property of him who had the rig-htful possession, and right to claim 
 the tree ; for, if cut down by a stranger as a trespasser, he would gain 
 nothing by cutting it down, and no property in it, even if he should 
 convert it into rails or shingles. If the rightful owner should convert 
 the tree into rails, the rails are his personalty, and in case he sold the 
 land, he may, notwithstanding, take them away with his other personal 
 property ; but if he has laid some of them on the fence, as a part of it, 
 he has thereby made them a part of the realty, and has no right to take 
 them away, though they are only attached to the freehold by their own 
 weight. 
 
 CHAPTER III. 
 
 ESTATES UPON CONDITION AND IN TRUST. 
 
 § 1. The estates that have been treated of may be qualified or de- 
 pendent upon some condition, and are therefore called estates upon 
 condition; being such as its existence depends upon the happening 
 or not happening of some uncertain event whereby the estate may be 
 either originally brought into existence, or enlarged, or finally deter- 
 mined." Thus, any estate or quantity of interest, a fee, a freehold, or a 
 term of years, may depend upon such provisional restriction or condi- 
 tion.. Such estates upon condition may be arranged into three classes : 
 I. Estates upon condition implied ; II. Estates upon condition expressed; 
 and III. Mortgages. 
 
 § 2. I. Estate upon condition implied in law, is where a grant of an 
 estate has a condition annexed to it inseparable from the object of its 
 creation and nature, although no condition be expressed in words. As 
 where land is conveyed to a grantee in fee, or for life, or for a term, for 
 the purpose of enabling the grantee to establish thereon a mill or ferry, 
 without adding any other words or express condition ; the law will 
 annex thereto what evidently was the intention of the parties, an im- 
 plied condition, that the grantee shall establish and keep up the mill or 
 ferry ; and on breach of the condition, it will be lawful for the grantor 
 or his heirs to enter and oust the grantee or grant it to another. 
 Such implied promise, covenant, or condition is necessarily annexed to 
 every grant or contract, in order fairly to carry out the evident intea- 
 
 12 Blackst. Com., 1 Stephens's Com. Co. Litt. 201 a, 276; Williams's K. 
 yropertj', 201. 
 
CHAP, in.] ESTATES UPON CONDITION AND IN TRUST. 165 
 
 tion of the parties. Thus, if a grant is made to a person to be the libra- 
 rian of a certain public library, or to hold some oifice of the like nature, 
 without an express covenant or condition that he shall perform the 
 duties appertaining to the appointment, the law will hold it to be upon 
 such implied condition. Franchises, being, privileges granted by the 
 State, are also upon such implied condition of making proper use of 
 their privileges ; and therefore they may be lost or forfeited either by 
 abuse or by neglect. And it is upon the same principle that, at com- 
 mon law, a tenant for life or some limited estate, forfeited his estate 
 by some act incompatible with the estate he holds : as if a tenant for 
 life should convey iu fee, this at common law is a forfeiture, being a 
 breach of the condition annexed by the law, that he shall not attempt 
 to convey a greater estate than he is entitled to, or do that which is 
 inconsistent with his estate. 
 
 § 3. II. An estate on condition expressed in the grant itself is of two 
 kinds. The first is where an estate is granted with an express qualifi- 
 cation annexed, by which the estate granted shall either commence, be 
 enlarged, or be defeated upon the performance or breach of such qualifi- 
 cation or condition, which in law is called a condition in deed. Thus, 
 where land is conveyed upon condition that it is to be occupied by the 
 grantee, his heirs and assigns, so long as they keep a mill doing busi- 
 ness on the premises. After a failure in keeping up such mill, in 
 compliance with the terms of the condition, the grantor, for such for- 
 feiture, may, by an entry or demand of the possession, reinvest the 
 title in himself And in this case it may be observed that the law 
 will imply a condition in favor of the grantee, as being within the in- 
 tention of the parties that he shall not forfeit his estate because he 
 ceased "to keep a mill doing business" during the time the water 
 failed him, or while he was doing necessary repairs. 
 
 § 4. The second case is vi^here the condition expres.«ed in the grant 
 may be created not only by a condition in deed, but by a conditional 
 limitation, which is where an estate is so expressly defined and limited 
 by the words of its creation that it cannot endure for any longer time 
 than until the contingency happens upon which the estate is to fail. 
 To this class may be' referred all base fees, and fees-simple conditional 
 at common law.' And upon the same principle is a grant to a person, 
 while he remains parson of a certain church, or while he is single and 
 unmarried, and the like. These are estates limited on the condition 
 that the grantee observe and possess the qualification upon which it de- 
 pends, and a forfeiture is the result of his non-compliance. But such 
 conditions must always comply with public policy and good morals, or 
 they will be void and the grant absolute.' 
 
 >Sperry vs. Pond, 5 O. IJ. 387. "See ante, § 1-3. 
 
 • Williams's Beal Property, 72, and n. 2. 
 
166 PRIVATE LAW. [book ii. 
 
 § 5. The difference between an implied conditional limitation of an 
 estate and one dependent upon condition in deed may be indicated by 
 the terms usually used to produce such condition, as so long as he is 
 parson, or while he continues unmarried, or until out of the rents a cer- 
 tain sum of money is paid ;. these terms and the like constitute a condi- 
 tional limitation, for they are rather the conclusion of the law as the 
 intention of the parties, than the express terms. But when the condition 
 is in deed it is couched in more positive terms, as if the grant was 
 expressly upon condition to be void upon the happening of such events. 
 And upon this difference is dependent this further technical difference, 
 that, where the estate is dependent upon a conditional limitation, the 
 law puts an end to the estate upon the happening of the event; but 
 where it is a condition in deed, it being a condition reserved by the 
 party himself for his own benefit, and not raised by mere implication of 
 law, tlie law. permits it to endure beyond the time when such contin- 
 gency happens, unless the grantor or his heirs take advantage of the 
 breach of the condition and make an entry in order to avoid the estate.* 
 As to some conditions, as that for the payment of rent, there is great 
 technicality and nicety to be observed by the common law in taking 
 advantage of the breach, or in avoiding waiver thereof, in order to be 
 able to take advantage of the breach and avoid the estate by means of 
 the forfeiture. 
 
 § 6. These conditions are either precedent or subsequent. Precedent 
 are such as happen or are to be performed before the estate can vest or 
 be enlarged ; subsequent are such as by the failure or non-performance of 
 the condition an estate already vested may be defeated. Thus, if a man 
 grant to his lessee for years that upon the payment of a hundred dollars 
 within the terra he shall have the fee; this is a condition precedent, 
 and the fee does not pass until the consideration is paid; if not paid 
 within the time, strictly there is no relief for him, not even in equity. 
 But where the grant is upon condition that the grantee shall erect upon 
 the premises a mill, and keep the same doing milling business there, it 
 is a condition subsequent, by the non-perforraance of which the estate 
 may become forfeited and reclaimed by the grantor and his heirs.^ Such 
 estate, dependent for its continuance upon such condition subsequent, 
 will endure as long as the estate would endure without the condition, in 
 case there is no breach of the condition, or the same is kept performed. 
 And after a lapse of a long time, say twenty-five or thirty years, with- 
 out any claim of a forfeiture, there may be a presumption raised that 
 the condition had been released, if there be no eircunistances to rebut 
 such presumption. For the person entitled to claim the forfeiture may 
 at any time release or waive the condition or forfeiture, and the law 
 
 1 1 Stephens's Com. 279. = 1 Stephens's Com. 278 ; 5 O. E. 387. 
 
CHAP. III.] ESTATES UPON CONDITION AND IN TRUST. 167 
 
 always leans against a forfeiture, and will consider it waived whenever 
 he does anything inconsistent with a claim of the forfeiture. 
 
 § 7. There is another striking difference .between conditions subse- 
 quent and precedent, in this respect: if the condition be subsequent, 
 and it afterward becomes impossible to be complied with, either by the 
 act of God, or of the law, or of the grantor, or if it be impossible at the 
 time of making it, or against law, the estate of the grantee being once 
 vested, is not thereby defeated, but becomes absolute. But if such 
 objectionable conditions be precedent to the estate being vested, the 
 grant being illegal and void, the estate never becomes vested. The law 
 leaves the parties, and illegal or impossible conditions, considerations, or 
 covenants and conveyances, where the parties have placed themselves, 
 and where the law finds them, and will neither enforce a forfeiture founded 
 upon an illegal or impossible condition, nor enforce a covenant or con- 
 veyance founded upon an illegal condition or conditions. Where, there- 
 fore, a note was given for the payment of a certain sum of money for 
 stifling- a criminal prosecution, and a mortgage to secure the payment 
 of it, the payee could not maintain an action on the note, on account of 
 the illegal consideration. The payor and mortgagor could not maintain 
 a suit to rescind or set aside the note and mortgage, for he was in pan 
 delicto. The courts would not interfere in his behalf, but leave him 
 where he had placed himself: so neither would they enforce the pay- 
 ment of the note, for the same reason. But the mortgage was an abso- 
 lute conveyance; and tiie title, after the non-payment, became by the 
 act of the parties vested in the mortgagee : the court would therefore 
 sustain an action of ejectment, to enable the mortgagee to recover pos- 
 session, for the reason that the legal title was really in him ; and being 
 so (but in equity subject to redemption), they would sustain a suit in 
 equit}' on behalf of the mortgagor to redeem. In so doing, neither party 
 relied upon the illegality of the transaction in maintaining either suit, but 
 both were placed upon the position that the transaction was valid by 
 the acts of the parties themselves, and they were held where the court 
 found them.' 
 
 § 8. III. llorlgages. But of all the estates upon condition, that which 
 is called mortgage is the most interesting, and occupies the greatest space 
 in the law, which is a conveyance of an estate, by \va,j of a pledge, for 
 the security of a debt or some pecuniary responsibility, and to become 
 void on the discharge of the obligation at the time stipulated. Origi- 
 nally, at law, such mortgages were considered as being founded upon 
 the same principles as any other estate upon condition expressed. 
 They held the grant or conveyance by way of a mortgage, an absolute 
 transfer of the property — subject to the condition — from the mort- 
 gagor to the mortgagee who had a right to the immediate possession, 
 
 1 Cowles vs. Eaguet, 14 0. E. 55; Thomas vs. Cronoise, 16 0. 11. 56. 
 
168 PRIVATE LAW. [book II. 
 
 and to hold the estate until the condition was performed ; and the 
 resulting interest of the mortgagee could only be protected by an exact 
 performance of the condition; and, if that was not done, the estate 
 became absolute and indefeasible. But courts of equity interfered, and 
 established the principle that the mortgage was only a security for the 
 pecuniary responsibility; and, however stringent the terras of the con- 
 dition or absolute the forfeiture, it was always subject to be redeemed 
 within a reasonable time after forfeiture, upon payment of the principal 
 and interest ; and that the mortgagee in possession should account, as 
 part of the payment, the rents and profits received from the estate. 
 
 § 9. Such was the nature of a mortgage at common law ; but by 
 means of the doctrine established in equity, and the many steps taken 
 by the courts of law to conform and harmonize their proceedings with 
 those of equity, the rules of law in relation to mortgages have become 
 a very different matter from what they were originally. But as this 
 change is only applicable to mortgages for pecuniary responsibility, it 
 may well be considered, that if the mortgage be conditioned for some 
 other matter than the payment of money, it would remain as a mort- 
 gage at common law, and subject to all the rules that govern estates 
 upon condition as already treated : as if the conveyance be made in 
 the shape of a mortgage, subject to the condition that the mortgagor 
 marries the mortgagee (a lady) on or before a certain day, then and in 
 that case the conveyance to be void. Though this be in the exact form 
 of a common mortgage, yet it may well be contended that it is not sub- 
 ject to the ordinary rules of a mortgage, but that the mortgagee has the 
 immediate right to enter, under the conveyance, upon her conditional 
 estate ; and if the condition be not strictly complied with, it becomes 
 absolute and indefeasible as at common law. 
 
 In applying the present doctrine to ordinary mortgages, it will be now 
 considered: 1. What constitutes a mortgage. 2. The rights and re- 
 sponsibilities of the mortgagor. 3. The rights and privileges of the 
 mortgagee. 4. Proceedings to redeem and to foreclose. 
 
 § 10. 1. Any transfer or incumbrance of lands and tenements intended 
 to secure the payment of money or to indemnify against the responsi- 
 bility of paying money, in whatever way the condition or defeasance 
 may be placed, or however absolute the conveyance may be, will 
 always be treated as a mortgage in equity, — at least as between the 
 parties to it, — and subject to redemption. This right of redemption, 
 equity will not suffer to be nullified, released, or waived by any agree- 
 ment between the parties, whenever it is established that the convey- 
 ance was intended to secure a payment in money ;' and when once found 
 
 1 Williams's Eeal Property, 353, and n. 1; "White vs. Denmiin, 10 O. R. 59. 
 An absolute conveyance was made to operate as a mortgage. Baird vs. Kerk- 
 land, 8 0. K. 21 ; Brewer vs. Connecticut, 9 0. E. 189. 
 
CHAP. III.] ESTATES UPON CONDITION AND IN TRUST. 169 
 
 or established as a mortgage, it always remains a mortgage until fore- 
 closed, or released, or satisfied by some subsequent fair arrangement in 
 good faith between the parties. 
 
 § 11. Almost any writing or transaction by way of securing the repay- 
 ment of money, that will satisfy the statute of frauds, will be enforced as 
 a mortgage in equity between the parties, and so far as they themselves 
 are concerned.^ But so far as other parties and third persons are inter- 
 ested, the law requires that the mortgage should be executed with the 
 formalities of a deed of conveyance, and recorded, so as to give due notice 
 to others of the incumbrance. By the statutes of Ohio, the mortgage, 
 as to other parties, does not take effect until deposited with the recorder 
 for record.^ In relation to this law the court has said : under the judi- 
 cial construction of the registry law, which has prevailed for some years 
 past, a mortgage not duly executed and delivered for record, has no 
 validity, either in law or equity, against other creditors. Although 
 this is at variance with the former analogies of the law, yet inasmuch as 
 it has become a rule of property in settling priorities among creditors, 
 the court, acting upon the maxim stare decisis, a safe and established 
 rule of judicial policy, will not disturb it.' 
 
 § 12. Notwithstanding this statute, which prevents anything less than 
 a mortgage duly executed as a deed of conveyance and deposited for 
 record, from operating as an effective legal mortgage against other par- 
 ties, still the cases are numerous where writings less perfect than a legal 
 conveyance or mortgage have been permitted in equity to operate as an 
 equitable mortgage between the parties to the transaction. It is proba- 
 ble that any arrangement of the kind between the parties, that was suf- 
 ficient to take it out of the statute of frauds, would be sufficient for that 
 purpose, but would not be sufficient to prejudice the right of others, nor 
 prevent a well-executed mortgage having it.'^full effect, oven where such 
 mortgagee had full knowledge of such prior equitable mortgage.' In 
 practice we have nothing here like the equitable mortgage created in 
 England by mere deposit of the title-deeds for that purpose. Our sys- 
 tem of registry would forbid it, if nothing else was in the way of its 
 existence here. 
 
 § 13. 2. The rights and responsibilities of the mortgagor. Although 
 a mortgage in form is a conveyance of the property to the mort- 
 gagee, and by its terms would seem to be such, and that was its ancient 
 effect and operation,' still, at the present day, both at law and in equity, 
 
 1 Luke vs. Doud, 10 0. E. 41.5 ; 14 0. E. 122. Marshall vn. Stewart. 
 
 ■' Act of March 16,1838 ; 1 Ciirwen, 429, and the law of 1831 ; 3 Chase's, 1843. 
 
 s AVhite vs. Denman, 1 O. S. R. 110. 
 
 • 4 0. S. E. 45 ; 8 0. S. E. 509. Unless perhaps where there was an aclual fraud. 
 
 6 4 Kent's Com. 148. 
 
170 PRIFATE LAW. [book ii. 
 
 the mortgage is regarded as a mere security for the paynTent of the 
 debt, and as an incident to it; and whenever the debt is assigned, or 
 where the debt is evidenced by a note or bond, and that is transferred, 
 such assignment or transfer carries with it the right and title to the 
 mofta-ase as an incident.^ Until the condition is broken, the mortgagor 
 remains in possession, and is vested with the title, which he may sell 
 and convey, or the same may be taken in execution against him and 
 sold ; but in all such sales the purchaser takes it subject to the lien of 
 the mortgage, and therefore acquires only the right of redemption. 
 
 ^ 1 4. The mortgagor cannot be treated by the mortgagee as a trespasser 
 while in possession, for the former is considered to remain in possession 
 by the consent of the latter, until he has regularly recovered possession by 
 entry or ejectment. TJntil such recovery, the mortgagor is lawfully in 
 possession, and may maintain any action against all who may in any 
 manner interfere with his rights as the owner of the premises, even tres- 
 pass against the mortgagee or his assignee. Still, the courts will protect 
 the substantial interest of both parties, and therefore will enjoin either 
 party from committing waste, while in possession, that maybe injurious 
 to the other, until the mortgage is finally settled and closed. The mort- 
 gagor at present is not considered to be a tenant of the mortgagee, and 
 is not accountable for rent, — his accountability is only for the payment 
 of the interest, and eventual payment of the principal, and not for rent; 
 but should the mortgagee be in possession, he is accountable for rent 
 and profits toward satisfaction of the mortgage. 
 
 § 1.5. 3. T/ie rights and privileges of the mortgagee. Formerly it 
 was considered that the mortgagee, upon the execution of the mort- 
 gage, had a right to the possession of the premises by the terms of his 
 mortgage, and might at law recover such possession. But now, under 
 the notions of equity, and a more just view of the intentions and rights 
 of the parties at law, as in equity, the mortgage is considered as a 
 mere security for the payment, and the mortgagee has only a right of 
 entry and possession after the condition broken,* unless otherwise 
 specially agreed upon. 
 
 § 16. On failure to perform the condition of the mortgage, the mort- 
 gagee may recover and take possession of the mortgaged premises; 
 and where he has obtained peaceable possession, he has a right to it, 
 and cannot be disturbed by the mortgagor, or those claiming under him, 
 until he has redeemed. Such possession will, in the lapse of time,' 
 matiu'e into a perfect and irredeemable title, upon the presumption, from 
 
 1 Swartz vs. Leist, 13 0. S. R. 419. 
 
 2 l.j 0. R 735 ; 18 0. R 27;i ; 1 Stephens's Com. 283. 
 
 8 Probably twenty or twenty-one years, or perhaps in fifteen year.s, as that 
 period would bar action on the note or bond. Robinson vs. Fife, 3 O. S. R. 551. 
 
cnAP. III.] ESTATES UPON CONDITION AND IN TRUST. 171 
 
 the lapse of time, that the right of redemption has been released, unless 
 such presumption is rebutted by the payment, in the mean time, of in- 
 terest, or part of the principal, or some other aet acknowledging the 
 subsisting relation of the parties, from which period the lapse of time 
 begins again to run. If the mortgagee takes possession until fore- 
 closure, he will be accountable for the actual receipts of rents and 
 profits, but no more, unless reduced or lost by his willful default or gross 
 neglect. By taking possession he imposes upon himself the duty of an 
 ordinary provident owner, and, as such, is responsible to account fi)r what 
 a reasonable diligence would have received; deducting reasonable ex- 
 penses paid out for taxes, and the like necessary charges, but nothing 
 for his own services. He is held, when called upon, to account strictly 
 as a trustee. 
 
 § 17. 4. Proceedings to redeem and to foreclose. It is the duty 
 of the mortgagor to pay up the money due by the mortgage, princi- 
 pal and interest, at the time appointed, and redeem his mortgaged 
 property from the incumbrance. Should he neglect to do so, the 
 estate of the mortgagee, at law, becomes absolute by the condition 
 and forfeiture, and he is entitled to the possession. If, at any time 
 after that, the mortgagor should be disposed to pay the amount due, 
 and redeem, he should offer to do so to the mortgagee ; and in case 
 he refuse to receive it, the mortgagor is entitled, in a court of equity, 
 upon proper proceeding by petition, to a decree for the settlement and 
 payment of the amount due, the redemption of his property, and the 
 restoration of his title. In England, they require a previous notice of 
 six months of the intention to redeem; and upon redemption, the 
 actual reconveyance of the mortgaged property after forfeiture. In 
 practice, here, there is no such notice required, and no reconveyance 
 of the land; for it is considered that the payment of the whole amount 
 due, of itself redeems the mortgaged premises, and restores the title. 
 
 § 18. This right of the mortgagor to redeem, notwithstanding the 
 forfeiture, is called {txs equity of redemption. In case he should neglect 
 to avail himself of it, the mortgagee, after the forfeiture, if he assumes 
 possession, will be treated as the owner of the estate, may sell or devise 
 it, and at his death intestate, it will descend to his heirs at law ; but 
 in equity it is still looked upon as a mere security for his debt, and 
 subject to redemption if not foreclosed. 
 
 § 19. If the mortgagee, at any time after forfeiture, should become 
 dissatisSed with the uncertainty of his estate, or desirous of collecting 
 his money, he may proceed to foreclose the equity of redemption 
 by a proceeding in chancery, or by an action at law to collect his 
 debt and interest, by a suit founded upon the note or bond which gen- 
 erally accompanies the mortgage, or the covenant to pay contained 
 therein. He has therefore three remedies to aid him in obtaining 
 
172 PRIVATE LAW. [book ii. 
 
 satisfaction, all or any one of wliich he may pursue: to wit, an action 
 at law founded upon the promise to pay the debt and interest, 
 ejectment to recover possession of the mortgaged estate, or a suit 
 in equity to foreclose.' But in Ohio it is not usual for the mort- 
 gagee to seek possession of the land, but to proceed at once to collect 
 his debt, and subject the mortgaged premises to the payment of the 
 judgment he may recover; and in case the money realized by the 
 sale of the premises is insufficient to satisfy his claim, he is entitled to 
 collect the residue, as any other judgment creditor, from the debtor's 
 other property. But in case he should proceed to foreclose, as by the 
 laws of Ohio a judgment creditor can only force a sale of the debtor's 
 real property when it will produce on the sale two-thirds of its appraised 
 value, tlie court, upon proceedings in equity to foreclose, will ;only grant 
 a decree to foreclose after the premises have been duly appraised, and 
 the court find that the mortgage debt will amount at least to two-thirds 
 of the appraised value. Then they will decree the foreclosure in case 
 the money is not paid in a limited time; otherwise the premises must be 
 sold as upon execution at law, and the money applied toward satisfying 
 the mortgage. 
 
 § 20. Our law for registry of deeds and mortgages precludes every- 
 thing like what in England is called tacking, i.e. the mortgagee of the 
 oldest and legal mortgage purchasing in the junior mortgage taken in 
 good faith and without notice, and tacking to his elder mortgage, and 
 thereby cutting off the possibility of realizing anything on any inter- 
 mediate mortgage, when the mortgaged premises is insufficient to satisfy 
 all. Here there is no question as to notice, for the law holds the mort- 
 gage void, except as between the parties themselves, until it is deposited 
 for record, and makes that, and that only, notice to all the world. But in 
 any proceedings to foreclose, or to collect the monej' on the mortgage, 
 it is necessary to make all parties interested parties to the proceedings, 
 or they will not be precluded by them, — the heirs and administrators 
 of either party who may be deceased, the one to represent the realty 
 and the other the money. If there be a junior mortgage, the junior 
 mortgagee should be made a part}', for otherwise such junior mortgagee 
 may, at some future time, when the land has increased in value, come 
 in, proceed again to foreclose, and have applied upon his junior mort- 
 gage whatever the sale of the premises will realize over and above 
 what is sufficient to satisfy the first mortgage. It has been stated that 
 a court of equity will restrain by an injunction either party who may be 
 in possession from committing any waste that may be injurious to the 
 other, and will enjoin the mortgagor from doing anything that will lessen 
 
 I In such suit the mortgagor would of course bo permitted to make any just 
 defense to the validity of the mortgage. See ante, this chapter, § 7. 
 
CHAP, in.] ESTATES UPON CONDITION AND IN TRUST. 173 
 
 the value of the mortgagee's security; and for such injury he may 
 maintain an action against any stranger who has committed it. 
 
 § 21. Frequently some variation is attempted in the mortgage, with a 
 view to save the trouble of cither proceedings to redeem or to foreclose. 
 As where a power of attorney is inserted in the mortgage that upon 
 forfeiture of the mortgage for non-payment the mortgagee upon some 
 limited notice should be at liberty to proceed to sell the mortgaged 
 premises, and out of the proceeds of the sale pay himself the amount 
 of the principal, interest, and cost, and return the overplus to the mort- 
 gagor ; or, as another expedient, a conveyance to a trustee, witb a decla- 
 ration that the grant was a trust to secure borrowed money, and, if 
 not paid at a certain time, the trustee was to proceed in a certain man- 
 ner to make sale, and proceed as in the former case. In all such in- 
 stances the power must be strictly pursued;' and a court of equity will 
 at any time interfere to prevent any injustice, and compel the property 
 to be fairly sold, so that usually but little is gained by any such 
 expedients. 
 
 § 22. Where the mortgagor, subsequent to the making of the mort- 
 gage, has sold and conveyed the premises to another, such purchaser 
 acquires the right of redemption, and should be a party defendant in 
 any proceedings to foreclose. And it is an established principle that an 
 assignment of the note, bond, or mortgage claim by the mortgagee, as 
 the mortgage is considered in equity a mere security for the payment 
 of the claim, carries with it the mortgage as an incident ; and there- 
 fore the assignee or holder of the claim is the proper party to foreclose, 
 or to do whatever the mortgagee himself could do. Sometimes the 
 mortgagee is a trustee for several persons interested in the mortgage 
 money when collected, who may or may not be parties to the proceed- 
 ings to foreclose or redeem. 
 
 § 23. The law necessarily establishes certain fixed and definite rules 
 whereby rights and title in property may be acquired and transferred 
 to another. When such rules are strictly or substantially observed in 
 the acquisition or transfer of property, the grantee is said to have a 
 legal estate or legal title. But when such rules, from accident, or mis- 
 take, or fraud, have not been complied with,, then the legal title may be 
 in one person, but the equity, or the equitable title or estate, may be in 
 another;^ or an estate may be legally conveyed to one person in trust 
 for the use of another. In any of these cases, where the legal right of 
 property or estate may be in one person, and the equity or equitahle in- 
 terest in another, courts of equity, upon well-established principles 
 
 1 Brisbane vs. Stoughton, 17 0. K. 82. 
 
 * Instances of this kind are referred to under the head "Mortgage," in the 
 cases of equitable mortgage, ante, § 12, etc. 
 
174 PRIVATE LAW. [book ii. 
 
 of justice, will lay hold of the equity of the ease, and dispense justice 
 according to good conscience, without'doing injustice to any one. This 
 matter will be further considered under these heads : 1. Trusts. 2. 
 Equitable interest in estates arising from contract. 3. Equitable interest 
 in estates arising from the operation of law, or in consequence of fraud. 
 All these - interests are sustained upon principles of equity, and are so 
 administered. 
 
 § 24. I. Trusts. The words use and trust are common to our 
 law, yet they mean a very different matter from the words uses and 
 trusts as found in the English law. That depended upon a curious 
 state of the law in England, — common law and statute, — from the Con- 
 quest up to near the close of the reign of Henry VIII. The Nor- 
 man clergy had introduced into that country the practice of inducing 
 landholders, as a pious act, to grant a portion of their real property to 
 some one to the use of some religious house. Such grants were there 
 encouraged and protected by their chancellors, until in time "most of 
 the lands in the kingdom were conveyed to uses, to the utter subver- 
 sion of the ancient common law of the realm.'" To avoid this, and 
 other abuses and inconveniences in connection with it, Parliament at 
 last passed, for their abolition, an act known as the Statute of Uses,' 
 by which it was declared that where any person stood seised of any 
 estate to the use, confidence, or trust of any other person, the person 
 having such use or trust should be deemed in lawful seisin and pos- 
 session of such estate as they had in the use. Upon this, therefore, 
 if a feoffment had been made to A and his heirs, and the seisin duly 
 delivered to him, if in the conveyance it were expressed to be made to 
 him and his heirs to the use of B and his heirs, then A, by the mere 
 force of the statute, took nothing by the grant, but the estate was 
 immediately transferred by the force of the law to B and his heirs. 
 This statute effected a wonderful change in their mode of conveyance, 
 and enabled them to transfer to a person an estate without either a 
 feoffment or livery of seisin to him. The various changes it has pro- 
 duced in their titles and conveyances have also built up a vast structure 
 of law, under the denomination of uses and trusts, that is almost un- 
 known in this country except as a scientific curiosity.' 
 
 § 25. The words use and trust are frequently found in our convey. 
 
 1 "Williams on Eeal Property, 131; 4 Kent's Com. 283. 
 
 2 27Henry VIII. u. 10. 
 
 'This is especially so when we are informed that where a trust and equity still 
 subsisted in favor of some one, and that such trust was binding, if not at law yet 
 in conscience and in equity ; and though under the positive direction of the stat- 
 , ute it was rejected at law as uses, became established in equity under the denom- 
 ination of trust Williams's Real Property, 133 and 145. See 1 Stephens's Com. 
 342. 
 
CHAP. Ill] ESTATES UPON CONDITION AND IN TRUST. 175 
 
 ances and law books, though we have nothing that approaches, either 
 in theory or practice, to the English uses and trust. Ours is more like 
 the common law use of the words use and trust, before the statute of uses, 
 without its abuses or evils. Those words here are only used to express 
 their true meaning — that the grant or conveyance is in trust for the 
 use of some other person \ and so it is held in law and equity, exactly 
 as the parties intended by those words. They are frequently used to 
 express tBe same idea, i.e. for the benefit of another: as, for the use 
 of another, or in trust for another ; although the word trust has a more 
 speciiil reference to the grantee, who is also termed the trustee, and the 
 word use to the cestui que trust ; though both are used as convertible 
 terms — expressing the same meaning and conveying the same interest. 
 Here these terms receive their ordinary effect and meaning, and are car- 
 ried out both in law and equity according to the intention of the 
 parties ; equity, however, doing so more fully. 
 
 § 26. It may appear strange to a person who has not fully studied 
 the matter, that a man in a proceeding at law should be able to recover 
 an estate as his own, when in proceedings in equity he will be com- 
 pelled to hold all the benelits to be derived from it to the use and bene- 
 fit of another. But this is easily understood when we consider that 
 there must necessarily be some fixed and established rules and forms 
 for the conveyance and title of property. Where the claim conforms 
 to these rules and forms, the case is easily and expeditiously disposed 
 of, aud this is the ordinary business of a court of law ; but where these 
 rules have been disregarded, through mistake, or accident, or fraud, or 
 where the person holding the title does so by a strict compliance with 
 all such rules and forms, but there is some other person who claims 
 that, notwithstanding his strict legal title, there are some latent claims 
 of equity and good conscience that would require the holder of the 
 estate either to recover or hold it in trust for his use, this is the pe- 
 culiar business of a court of equity, to investigate such extraordinary 
 claims, and to see that while they are doing equity, out of the ordinary 
 course and forms of law, they are not doing injustice to others or vio- 
 lating established principles of justice. This requires a more laborious 
 and diligent investigation than the ordinary proceedings and machinery 
 of a court of law will well admit, but which is peculiarly adapted to 
 the mode of proceedings in equity. 
 
 § 27. The doctrine of trusts here exists entirely untrammeled by the 
 English statute of uses, is founded upon the most rational principles of 
 justice and equity, and is required by the exigencies of the times and the 
 progress of civilization. Trusts exist in relation to personal property as 
 well as to real estate ; but in this place they are only treated of as ap- 
 plied to real estate. They exist in our every-day practice, but are only 
 noticed and heard of when the aid of a court is required to enforce 
 
176 PRIVATE LAW. [book n. 
 
 them, and to do justice and equity. They maybe classed thus: — 1. 
 Actual or express trusts, as where the title to the estate has been con- 
 veyed to a trust and use expressly declared, and the aid of a court of law 
 is involjed to carry them out according to the intention of the parties ; 
 2. Constructive or implied trusts, as where the legal estate has come 
 into the possession of some one, and there is an equity and a just 
 claim in another, for the estate itself or the avails of it, in whole or in 
 part. 3. Resulting trusts, as where the title has been procured in 
 the name of one person with the money or means of another who has 
 an equity to receive it in return. Each of these will include a large 
 variety of cases, and the whole embraces a vast field of consideration 
 of law and equity learning. 
 
 § 28. 1. As to the first class of eases, their character is so obvious that 
 there needs no further illustration by stated cases ; but there are certain 
 general principles of equity applicable to them, and equally applicable 
 to all, that will be first stated. When an estate has been conveyed to 
 another in confidence, or has been procured or held by such person, 
 when still another party has a just claim upon the estate itself, or some 
 interest in it, or some benefit or use arising out of it, a court of equity 
 will enforce the claim as a trust. The person holding the legal estate 
 is called the trustee ; the person claiming the equity is called cestui 
 que trust, and his interest in it is designated as the trust estate. Where 
 the trust is expressly declared, there is but little difficulty in adminis- 
 tering it, except to carry out the intention of the parties. Such trust 
 may be created to the use and benefit of the cestui que trust, and to 
 subserve and protect his interest ; as where a trust is made for the ben- 
 efit of a spendthrift, an infant, or a lunatic. These trusts are always 
 created by the acts of the parties, as by grant or devise, and the ex- 
 press object of the trust may then be declared, or it may be declared to 
 be reserved for future direction. Where the object and manner of dis- 
 posing of the trust are then declared, it is called an executed trust ; but 
 where such declaration is reserved for some future occasion, or made 
 dependent upon some contingent or future event, it is an executory 
 trust, and frequently found in devises. 
 
 § 29. The estate of the trustee is always a legal estate, and every 
 one is capable of receiving it who is capable of receiving and holding by 
 grant or conveyance, and thereby become a trustee. It is also a maxim 
 in equity that a trust shall not fail on account of the disability of the 
 person appointed to perform it, or even from the omission to appoint 
 any person as trustee. Equity will consider the intended trust when 
 once constituted, and fix it upon the person who may be entitled to the 
 estate by reason of the omission, and will accordingly compel him to 
 observe and execute the trust. 
 
 § 30. The legal estate of the trustee, as distinguished from the equity, 
 
CHAP. Ill] ESTATES UPON CONDITION AND IN TRUST. 177 
 
 is subject to the ordinary incidents of property in land, and therefore 
 upon his death it descends to his hch-s ; and is subject to alienation to a 
 bona fide purchaser without notice.^ But in the hands of all persons, 
 except such bona fide purchaser for valuable consideration, equity will 
 enforce the .trust, and will "hold them to a notice, even by implication, 
 where reasonable diligence and caution would enable them to discover 
 it. The right of the purchaser is only protected as coming, by means 
 of his legal title, in equity superior to that of the cestui que trust, when 
 it is found free from all these objections ; and when not so, the purchaser 
 will be held to stand In the position of trustee. 
 
 § 31. The estate and interest of the cestui que trust is only in equity,' 
 yet as far as it can be so made, it is subject to the incidents of such 
 estate. It is subject to his involuntary alienation, as on execution, and 
 subject to the payment of dues to the government. Subject also to his 
 bankruptcy, but not to that of the trustee.^ But the interest of the cestui 
 que trust, however, will be protected as far as possible; as here, for 
 instance, the trustee had conveyed the land, and the purchaser became 
 aware by any means of the interest of the cestui que trust, before the 
 whole of the money is paid, he would be held bound to see to the proper 
 application of it ; but it is otherwise where the trustee, by the trust, is 
 authorized to sell and invest the proceeds,, or where the law created the 
 trust, or conferred authority to execute it.' 
 
 § 32. 2. But the most numerous cases of trust are those created by 
 the operation of a court of equity, either by implication, or where the 
 equity and justice of the case necessarily require it, in order to prevent 
 a wrong, as in cases of fraud, mistake, accident, and the like. Instances 
 of this kind have been seen in cases of mortgages, as also in cases of 
 fraudulent transfers, or where the weak or feeble have been overreached, 
 or where persons are incapable of taking care of their own affairs ; and 
 any of these cases may extend to an interest in lands and tenements. 
 The principles governing these cases of trust fall within the present 
 subject, though the principles of equity in relation to real property ex- 
 tend equally to those of personal property. 
 
 § 33. 3. Eesulting trusts frequently occur ; as where an estate may 
 be conveyed to a person upon such trusts to another, as the grantor shall 
 thereafter appoint. It is clear that in case of accident or negligence, the 
 appointment has not been made ; and that the grant was not intended 
 for the benefit of the trustee; and therefore, by implication, equity will 
 
 1 Stiver vs. Stiver, 8 O. R. 217 ; Miller vs. Stokely, 5 0. S. R. 194 ; 1 O. S. E. 
 478; 2 Ibidem, 3-36. 
 
 '' Stephen i's Com. 142. As to the rights of cestui que trust, see Starlvscs. Smith, 
 5 0. R. 40.3 ; Williiims vs. First Pros. Society, 1 0. S. K 478. 
 
 3 Coonrad vs. Coonrad, 6 0. R.,114 ; and Bank vs. Carpenter, 7 0. R. 21-70. 
 
 12 
 
178 PRIVATE LAW. [book ii. 
 
 raise a resulting trust in favor of the grantor and his heirs. So also in 
 case an estate be purchased in the name of one person, and the consid- 
 eration money belongs to or be paid by another, the land will be sub- 
 ject to a resulting trust, for the benefit of the person to whom the 
 money belonged. And it is a rule that when a trust is raised by oper- 
 ation of law, it may be proved by parol.^ 
 
 § 34. Upon similar principles, where there has been an agreement for 
 the sale of land, once concluded, equity will make the vendor a trustee 
 for the vendee, and enforce the conveyance under the denomination of 
 specific perfomance.' A contract for the purchase of land will be dc- 
 ' creed to be sneciflcally performed in equity, upon the maxim adopted in 
 the proceedings of a court of equity, that what ought to be done shall be 
 considered is being actually done, and shall relate back to the time 
 when it ought to have been done ; thus, in effect, the vendor was con- 
 sidered ic equity, until the conveyance should be completely executed, 
 a trusir.e for the vendee from the time specified in the contract ; and the 
 vender as a trustee for the vendor, from the time that the payment 
 should be made, so far as the purchase money was concerned. But this 
 doctrine is applied with much caution, and will not be applied where 
 the parties' have made the time, by their agreement, a part of the essence 
 of the contract ;' or where the party seeking equity has been guilty of 
 extreme negligence without excuse ;* or comes into court without clean 
 hands or fair dealings on his part.^ Where faults of this kind exist, a 
 court of equity will sometimes not only refuse to decree a specific per- 
 formance, but for such reasons will decree a recision^ of the contract ; 
 and in other cases, where there is such want of merits on either side, or 
 want of mutuality, the court will leave the parties to their mere remedies 
 at law.' Equity will also, upon these principles, decree specific perform- 
 ance of a contract in relation to personal propertv where there is not an 
 adequate remedy at law.' 
 
 1 Williams vs. Van Tuyl, 2 0. S. E. 336. 
 
 2 1 Stephens's Com. 346 ; 4 Ibid. 11 ; Sugden's Vend. 154. 
 
 3 Brewer vs. Connecticut, 9 0. E. 189; Kirby vs. Harrison, 2 0. S. E. 326. Ordi- 
 narily time is not in equity considered of the essence of the contract unless so 
 made by the nature of the agreement. Buck vs. Kidy, 13 0. S. K. 306. 
 
 * Mause vs. Deen, 2 0. S. E. 187. 
 
 5 2 0. S. E. 326 ; 8 0. E. 214-15 ; 13 Vesey E. 224. 
 
 Goshen W. vs. Shoemaker, 12 0. S. E. 624 ; 5 0. S. E. 25 ; 8 O. E. 198. 
 
 1 2 0. S. E. 326 ; 8 0. R. 214. 
 
 8 See post, Equity, B. iii. eh. x. J 32-33 | 3ee also J 34-35, as to trust 
 
CBAP.iV.] ESTATES AS TO POSSESSION AMD TENANTS 179 
 
 CHAPTER IV. 
 
 ESTATES AS TO POSSESSION AND TENANTS. 
 
 § 1. Thus far estates have been considered with regard to their duvor 
 tion, and the quantity of Interest the owners had therein ; it now be- 
 comes necessary to consider them in relation to the time of their eri' 
 joyment. In this respect they may be considered as either in post^ession 
 or expectancy. Where a person is entitled immediately to the posses- 
 sion of a tenement in right of any of the estates that have been con- 
 sidered, the estate is said to be in possession; but when so entitled, 
 not immediately, but in future, in consequence of some intermediate or 
 previous estate, the estate is said to be in expectancy. Expectancies 
 are divided into two sortS' — reversion and remainder. In respect to 
 the enjoyment, therefore, estates are divided, by the common law 
 writers, into three classes, — I. Estates in possession. II. Estates in 
 reversion. III. Estates in remainder.^ 
 
 § 2. I. Estates in possession. Estates in possession are those where 
 the owner is either in the actual or constructive possession and enjoy- 
 ment of them. In treating of estates thus far, they have been consid- 
 ered as though in possession, for general rules are better applied for 
 illustration to such estates. Of such estates not much further need be 
 observed, except to remark that an owner may have an estate in pos- 
 session and still not have the actual possession : as where a servant or 
 tenant holds the land or tenement for him, ready for his actual posses- 
 sion ; or he may be disseised, that is, put out of the actual seisin, or 
 otherwise wrongfully deprived or ousted of the actual possession, but 
 will still retain an estate in possession, in the legal sense of the term ; 
 and thus the true owner is also said to have the right of possession 
 in contradistinction to the mere naked possession of the wrong-doer. 
 
 § 3. The right of possession involves the rig^it of entry, that is, the 
 right of peaceably entering upon and taking possession of the land 
 withheld. And it also gives him a constructive possession whenever 
 another holds the possession for him, or whenever there is no one in the 
 actual possession contesting the right with him. A possession once taken 
 under a claim of title will, if not disturbed, ripen in time into a perfect 
 
 > 1 Stephens's Com. 289 ; Williams's Eeal Pro. [197]. Some writers class estates 
 in reversion and remainder as incorporeal property. Though in some aspects it 
 appears so, yet I deem that classification not correct. 
 
180 PRIVATE LAW. [book ii. 
 
 title, dependent upon the statute of limitation^, which generally fixes it 
 at twenty-one years ; or, after a great lapse of time, say thirty or forty 
 years, more or less, according to circumstances, the courts will, for the 
 sake of quieting such long and quiet possession, \vhere there are no 
 special circumstances to rebut it, presume a grant or some conveyance 
 from the government, or some one who had the legal title, to the person 
 so in possession. The further consideration of this subject properly 
 belongs to that of title and ejectment. 
 
 § 4. II. Estates in reversion. Estates in reversion are those where- 
 a person having a larger estate grants to another a lesser estate, leaving 
 a remnant of the estate in himself to return to himself or his heirs after 
 the expiration of the previous estate. This operation divides the estate 
 which the grantor had into two parts : the one he grants by a convey- 
 ance or devise to the grantee, and the other being the resulting interest 
 he leaves remaining to revert to him and his heirs after the expiration 
 of the estate so granted. The estate so granted must be an estate less 
 than his own ; and where he has a fee-simple, it may be an estate for a 
 term of years, or for life, or in fee-tail. Such lesser estate is called the 
 particular estate, being only a part or parliciilar of the original estate,' 
 and the remaining interest which will revert to him and his heirs, and 
 which remains in them in expectancy, is called the reversion. When- 
 ever such smaller estate is granted, the remaining interest of the grantor 
 will remain vested in him, to be enjoyed upon the termination of the 
 particular estate as reversion, and as a necessary consequence, without 
 any reservation in the grant for that purpose. 
 
 § 5. In this country, it would seem, there can be no question in 
 granting the particular estate, with regard to its effect on the reversion, 
 whether it was an estate for years or a freehold, for all would depend 
 upon the grant, for we have nothing dependent upon questions of livery 
 of seisin and fealty, as they are unknown in our law. And upon the 
 terms of the grant would also' depend the question what return the 
 grantee should make as a consideration for the grant — whether there 
 should be a rent or not ; but, whatever rent was to be paid, a subsequent 
 grant of the reversion would carry with it to the grantee the payment 
 of whatever rent should become due by the grant of the particular es- 
 tate. If there be any rent reserved or dependent on the grant of the 
 particular estate, that rent must be dependent upon the grant and the 
 laws of this country as in cases of rent reserved in leases heretofore 
 treated of. 
 
 § 6. III. Bemainder. An estate in remainder is where the owner 
 of a larger estate by one and the same act grants to one a particular 
 estate and the whole of his remaining iuterest to another. Thus, if a 
 
 »2 Blackst. Com. 165; 1 Stephens's Com. 290; Williams's Eeal Pro. [198]. 
 
CHAP.iv.] ESTATES AS TO POSSESSION AND TENANTS. 181 
 
 grant be made by a tenant in fee-simple to A for years or life, and 
 afcer the termination of the particular estate to A, then the remiiinder 
 to B and his heirs: here the whole estate passes out of the grantor, and 
 there is nothing remaining in him by way of a reversion. The grant 
 of the remainder must take place by one and the same act as the grant 
 of the particular or previous estate, or what would be the remainder is 
 a reversion, and a subsequent grant of such remaining interest would 
 be in reality a grant or assignment of the reversion, and not a remainder. 
 A remainder always has its origin in an express grant, but a reversion 
 arises incidentally, merely as an act of the law in consequence of the 
 grant of the particular estate. It is therefore created simply as an act 
 or conclusion of law, while a remainder can only spring from the grant 
 and act of the parties. 
 
 § 1. In consequence of fealty and livery of seisin not existing in law 
 in Ohio, some of the distinctions which distinguished an estate in re- 
 mainder from that in reversion, do not exist here. The real distinction 
 between them is that already pointed out. Still, it may be observed 
 that the term remainder has not so much reference to the remaining 
 interest of the grantor after the expiration of the particular estate, as to 
 the remaining interest of the grantee after the termination of such pre- 
 vious estate, for there maybe one remainder after another. Thus, if land 
 be granted to A for twenty years, and after the termination of such 
 term, to B for life, and after the determination of B's life's estate, it be 
 limited to C and his heirs forever, this makes A tenant for years, 
 with remainder to B for life, remainder over to C in fee. Here the 
 original estate of inheritance in the grantor, uodergoes a division to 
 each of the grantees ; but the estate of the first, and both the remainders 
 for life and in fee, are considered one estate only, being on]}' parts or 
 portions of one entire inheritance ; and so it would be if it were divided 
 up into ever so many remainders, one after another, for still the whole 
 would form but one thing. Until the whole fee-simple is granted away, 
 any quantity of interest may be carved out of it, expectant on the termi- 
 nation of some precedent interest. Therefore a remainder, like an estate 
 in possession, may be either in fee, in tail, for life or for years. And 
 there may be a reversion after the termination of any such previous 
 estate in remainder.' In such case the estate of the grantor must be 
 neces.-^arily divided into three parts at least, — a particular estate, a 
 limited remainder, leaving a reversionary interest in the grantor. As a 
 grant to A for twenty years with a remainder to B for life or in fee- 
 tail, leaving the remaining interest of the grantor undisposed of, to revert 
 to the grantor, after the determination of such grants, as an estate in 
 reversion. 
 
 » 4 Kent's Com. 190. 
 
182 PRIVATE LAW. [book ii. 
 
 § 8. It is very apparent that an estate in reversion and one in re- 
 mainder mucii resemble each other, and that they are both estates in 
 expectancy, but differ in this respect, that the former remains in the 
 grantor, by the act or construction of law, as part of his former estate, 
 but that a remainder is-an estate newly created by the act of the grantor. 
 By means of the creation of such estates in remainder the grantor was 
 enabled to grant an estate commencing at some future time, by making 
 it to commence after the termination of some particular or previous 
 estate which supported it, as a particular estate for years or for life ; 
 which by the strict rules of the common law could not be done. For 
 there it was an ancient rule, which lay at the foundation of the English 
 learning on the subject of remainders, that a freehold in corporeal heredit- 
 aments could not be created to commence in futuro; tijat is, to take 
 effect in possession at a distant day, without the interposition of a par- 
 ticular estate on which it should be expectant. Thus, if one seised ia 
 fee of lands conveyed them to B to hold to him and his heirs forever, 
 after the end of three years next ensuing, this at common law was a void 
 conveyance. The reason given for it was, that at common law no free- 
 hold could be created in a corporeal hereditament without livery of 
 seisin, which was a ceremony which required immediate delivery of 
 possession, symbolically at least, and was incompatible with the creation 
 of a freehold estate in the future. But a grant of an estate for the three 
 years might be made to another person, and in the same grant an estate 
 of freehold for life or in fee to B as an estate in remainder, when the 
 livery of seisin could be made to the tenant of the particular estate for 
 years,' which being only a chattel interest, as an estate for years is, does 
 not require of itself livery of seisin, but the ceremony to such tenant of 
 the particular estate enured to the benefit of him in remainder, and the 
 freehold is thereby created and vested in B during the existence of the 
 estate for j'ears ; and so perfects not only that but any other freehold 
 estate dependent upon the same grant. 
 
 § 9. It was therefore the well-established rule of the common law^ 
 that it required livery of seisin to convey a freehold, and that, therefore, 
 a freehold could not be created to take effect in futuro, except as a re- 
 mainder, being supported by a particular estate, the tenant of which 
 could receive the livery of seisin for the benefit of those who had estates 
 limited after his. It is also a rule of the common law, that an estate 
 could not be limited, upon a future event, to one person, in abridgment 
 or defeasance of an estate of freehold, first limited to another, and fre- 
 quently expressed by the maxim, that a fee cannot he limited on a fee? 
 These rules are founded entirely upon feudal principles, and are disre- 
 
 1 2 Blackst. Com. 165; 1 Stephens's Com. 2!18 ; Co. Litt. 49, a and b. 
 
 2 2 Blackst. Com. 173 ; 1 Stephens's Com. 502. 
 
CHAP. IV.] ESTATES AS TO POSSESSION AND TENANTS. 183 
 
 gai'ded in conveyances for years, in grants founded upon the statute of 
 uses, and in case of a devise. As livery of seisin and fealty does not 
 exist in Ohio; and entailment of estates has hero been abolished be- 
 yond the immediate issue of persons in being, and fixing such entailment 
 as estate in fee-simple in the issue of the first donee in tail ; these 
 changes in our law, with its tendency to discourage perpetuity and 
 encourage facility in the alienation of real estate, may well warrant the 
 assertion that in Ohio there is no more objection to a grant of a freehold 
 to commence in the future, or limiting a fee on a fee, in the usual convey- 
 ance by deed, than in a devise. Still, wit^i the exceptions of these sug- 
 gested differences, the usual doctrine of reversion and remainder is 
 practically as much a part of the law of Ohio as of that of England. 
 
 § 10. It should be remembered that a conveyance to A, without any 
 words of inheritance or limitation, would give him only a life estate, 
 and a similar grant to A and the heirs of his bodj^ conveyed an estate 
 limited to the grantee for life, and to such heirs of his body as an estate- 
 tail; but where the grant was to A and his heirs, it conveyed to him 
 an absolute and indefeasible estate in fee-simple, which he could sell 
 and dispose of absolutely, free from any claim of the heir. When the 
 word /)«(>« was used generally, it was for the purpose Of conveying an 
 estate of inheritance in fee-simple ; but when the words heirs of his 
 body v/ere used, it limited the conveyance to such heirs,' and, by the 
 operation of the statute de donis,^ it was prevented from being a condi- 
 tional fee, and made a fee-tail. When an estate is granted or devi.sed 
 to one for life, with a remainder over to his heirs, or to the heirs of his 
 body, it became an interesting question whether such heirs took such 
 estate (in case it would ever reach him) as a gift or conveyance to him 
 personally, or as heir of the first donee or grantee, for if he took it as 
 heir, he might be barred by the ancestor in various ways, as where it 
 was to him as heir generally ; then in such ancestor it would be an 
 estate in fee-simple, who might bar such heir by alienation, and by its 
 being subject to the payment of his debts ; or, if he took as heir of his 
 body, then it would be in such ancestor an estate in fee-tail; and in 
 England even, such heir in tail might be barred, formerly by proceed- 
 ings of fine and recovery, which are novv superseded by a conveyance 
 under a statute of William IV.* But if such heir took the estate as a 
 grant or donation to him personally, and the words as description of the 
 person, the heir would take the estate by purchase, free from the aliena- 
 tion of the ancestor, who would have only a life estate. And in case 
 
 1 1 Stephen.:'s Cora. 220-22.5. 
 
 ' 13 Edward I., c. 1, beiug We.stminster the Second. 
 
 3 3 and 4 Will. IV., c. 74, and by Statute of l"and 2 Vict., c. 110, made subject 
 to payment of debts. 1 Stephens's Com. 23G-8. 
 
184 PRIVATE LAW. [book ii. 
 
 such heir, as tenant in remainder, died intestate, it also became impor- 
 tant to settle whether sucli intestate received the estate by inheritance 
 or by purchase. 
 
 § 1 1. In determining the question as to estates in remainder, — whether 
 the heir was entitled to the estate as purchaser or as heir, — the question 
 was frequently found complicated by the special words of. the grant, 
 and alsQ by instances of intermediate estates in the same grant, between 
 the estate of the ancestor and that of the heir, as an estate in remainder. 
 In determining the question a rule was called for, and after much liti- 
 gation this rule was furnished by what is called in the books th-e rule 
 in Shelley's case,^ and that was this : that whenever a man, by any gift 
 or conveyance, takes an estate of freehold, and in the same gift or con- 
 veyance an estate is limited, either mediately or immediately, to his 
 heirs in fee or in tail, the word heirs is a word pf limitation and not of 
 purchase. 
 
 § 12. Besides these general terms in which an estate in remainder 
 may be considered, attention should be given to the distinction which 
 exists between remainders as being either vested or contingent. Vested 
 remainders, or executed remainders, are where the estate is certainly 
 fixed to remain to a determinate person, after the particular estate is 
 spent. As if A be tenant for twenty years, with remainder to B in 
 fee, here B's estate is a ve.sted remainder. 
 
 § 1.3. Contingent or executory remainders are those which are limited 
 either to an uncertain person or upon an uncertain event ; that is, to a 
 person not in esse, or not ascertained, or upon an event which may not 
 happen at all, or not happen until after the particular estate is determined. 
 Those limited to an uncertain person may be exemplified as by a limita- 
 tion to A for life, remainder to the first son of B, who has then no 
 son born, for here the person is not in esse ; or to A and B for their 
 joint lives, the remainder to the survivor in fee, for here the person is 
 not ascertained. The second kind, or those limited on an uncertain 
 event, as by a lease to A for life, remainder to B for life, and if B die 
 before A, then the remainder to C for life, — for though it is certain that 
 B must die, his death may not happen until after A's life estate shall 
 bo determined.^ 
 
 §14. If, however, there be no nncertainty in the person or event 
 upon which the remainder itself is limited, the mere uncertainty whether 
 it will ever take effect in possession, is not sufficient to give it the char- 
 acter of a contingent remainder. As where the remainder was t-o B, 
 after the life estate to A, this is a vested remainder though B may die 
 
 1 Shelley's case, 1 Kep. 104 a. See 1 Stephens's Com. 308, and n. a, WilliHms's 
 Keal Pro. [211], etc. and notes. 
 
 2 1 Stephens's Com 801. 
 
CHAP. IV.] ESTATES AS TO POSSESSION AND TENANTS. 185 
 
 before the termination of tlie life estate. And a contingent remainder 
 becomes a vested remainder by tlie uncertainty whicli rendered it so 
 becoming sufBciently certain to render it a vested remainder. Thus, if 
 A be tenant for life, with remainder to B's eldest son, then unborn, 
 the instant a son is born the remainder is no longer contingent, but a 
 vested remainder. 
 
 § 15. There were a number of rules in the common law in relation to 
 remainders, the most of which are of doubtful application here, as — 1. 
 The contingency must not be too remote, or, as sometimes called, a pos- 
 sibility upon a possibility. Thus, a remainder to a man's eldest son, 
 when he has none, is good, for by common possibility he may have 
 one ; but if it be to his son John, when he has no such son, it is too 
 remote, and is considered bad within this rule.^ 2. A contingent re- 
 mainder, if a freehold, could not be limited on an estate for years, or 
 any particular estate less than a freehold. 3. So long as a remainder 
 is in contingency, it always requires the continuing support of the par- 
 ticular freehold estate, so that if that estate comes by any means to an 
 end before the contingency has happened, the remainder is altogether 
 defeated ; for the rule is that a contingent remainder cannot exist with- 
 out a particular estate to support it. 
 
 §16. The doctrine of merger is intimately connected with both 
 estates in reversion and in remainder. It is a general principle of law 
 that where a greater estate and a less coincide and meet in one and the 
 same person, without any intermediate estate, the less is immediately 
 annihilated, or is said to be merged, that is, sunk or drowned in the 
 greater. Thus, if there be tenant for years, and a reversion in fee- 
 simple descends to or is purchased by him, the term of years is merged 
 'in the inheritance, and shall never again exist. But they must come 
 to one and the same person in one and the same right; else, if the 
 term be in one right and tiie freehold in another, en auler droit, there 
 is no merger. So it is said if a tenant for life, where there is an inter- 
 mediate freehold, should surrender to the ultimate remainder, it would 
 destroy the intermediate estate by a merger.^ But a superior right is 
 never merged in an inferior one ; nor does the doctrine ever apply when 
 it would work injustice to the owner, or when his interest required that 
 these rights should have a separate existence.' 
 
 §17. The Reports of the Supreme Court of Ohio' contain a very in- 
 structive ca.se in relation to estates in remainder. In that case the tes- 
 tator by his will devised and bequeathed : 
 
 > Broom's Max. 168. 
 
 •Stephens's Com. 293 and 303 j 2 Blackst. Cora. 171; Broom's Max. 106. 
 
 3 Myers w. Hewitt, 16 O. K. 449 ; 17 0. E. 500-522. 
 
 * K.ing'3 heirs vs. King's adm'r., 12 0. K. 470; and the same case, 15 0. K. 561. 
 
186 PRIVA TE LA W. [book ii. 
 
 1. All his property to his brother Christian, to be used by him while 
 he lives. 2. If at the time of Christian's decease he should be pos- 
 sessed of legal heir or heirs, all the property which might be considered 
 mine in lifetime, and of which Christian may be seized at the time of 
 his decease, to such heir or heirs, and no other. 3. But if Christian die 
 without such lawful heirs, then what may be considered my share, after 
 my brother's decease, and not before, to my two sisters' children, Ish 
 and Cassel, in equal shares. 'Under this devise it was questioned and 
 much litigated, with great learning and ability, whether Christian's 
 estate under the will was a mere life estate or a fee-simple, and there- 
 fore subject to alienation and the payment of his debts ; whether the 
 children of Christian who then claimed it took an estate in remainder 
 as purchasers or as mere heirs to their father, and therefore subject to 
 his debts; or whether it was an estate in tail which they received as 
 heirs from their father. 
 
 On tlie Qrst trial of the case the court said : "If Christian took an 
 estate in fee, the lands descended to his heirs generally, charged with 
 his debts, and the personalty belongs to the administrator. 
 
 " If he took an estate-tail, the land at his death, by our statute of 
 entailment, belongs to the heirs of his body in fee, and the personalty 
 not being the subject of entailment was held absolutely bv him, and 
 now belongs to his administrator. 
 
 " If he took an estate for life, the land at his death passed to tne 
 heirs of his body in fee ; and the personalty may likewise pass to them 
 by way of a remainder, unless the will contained other provisions which 
 make the title absolute in the first holder. 
 
 " We are led at once to Shelley's case for the law which governs 
 this. The rule, although not now applicable to wills,^ is in all other 
 respects a rule of property in Ohio.^ 
 
 "This will contains the essential elements by which the limitation of 
 the estate it creates are subjected to the operation of this rule. We find 
 a legal freehold in the devisee, a legal estate in his heirs, limited by 
 way of remainder in the same instrument, and the rule, if it applies, 
 gives to Christian King an estate in fee or in tail." 
 
 The counsel for Christian's heirs had contended that expressions in 
 the will prevented the rule of Shelley's case from operating, and that 
 the heirs look an estate in remainder, not as mere heirs but as persons 
 
 > See the statute 2 Swnn nnd Ch. 1626, J 53, which provides that when lands 
 are given to any person for life, and after liis death to his heirs in fee, the con- 
 veyance shall be construed to vest an estate for life only in such first taker, nnd 
 a remainder in fee-simple in his heirs. N. B, — This statute was adopted after 
 King's will took effect and before the decision was made. The statute was passed 
 March 23d, 1840. § 47. This statute in eifect abrogates the rule in Shelley's case. 
 
 ' See McFeely's lessees vs. Moore's heirs, 5 0. li. 405. 
 
CHAP. IV.] ESTATES AS TO POSSESSION AND TENANTS. 187 
 
 de.signated, not by limitation but by purchase, and that the father took a 
 life estate. For this purpose they referred to the expressions in the will, 
 such as, "to be used by him while he lives," " such- property of which 
 Chi-istian may be seized of at his decease," " to such heir or heirs, and 
 no other," and then a contingent remainder over to the children of his 
 two sisters. The court, after citing authorities overruling the objections 
 raised upon these points, concludes: 
 
 '■The objections, therefore, to the application of the Shelley rule 
 appear to us to be overruled chiefly by positive decisions; and those 
 terms of the will which give the property to Hhristian and to the heirs 
 of his body create in him an estate tail." "The consequence of this 
 opinion upon the land is to vest in the heirs of Christian's body, on his 
 death, an absolute fee by the operation of our statute of entailments. 
 But the will gives to Christian the entire property of the personalty, 
 for estates tail exist in land only ;' and the property cannot pass by way 
 of remainder, for the same words of the same sentence of the same 
 bequest, conveying property of both classes, will not receive different 
 meaning from the court.^ The application of the heirs, therefore, to 
 obtain a transfer of the bank stock will not be sustained." 
 
 " To determine the right of the administrator to sell the land for debts, 
 it becomes necessary to examine the nature of Christian King's interest 
 yet further. We find the testator, by the will, gives Christian 'all his 
 property, to be used by him without any reservation while he lives;' 
 but in bis further dispositions he only bequeathes ' the property of which 
 he may be seised at the time of his decease.' We have here no artificial 
 or arbitrary rules of construction to guide us to the testator's meaning, 
 and we 'are at no loss to discover that it was his actual intention to 
 confer upon Christian the absolute power of disposition while he lived, 
 and tliat he intended the secondary limitation to operate upon those 
 portions of his estate only which the first object of his bounty had 
 chosen to leave untouched. But where the entire dominion of an estate 
 is given, a power to alien and dispose as well as a power to consume 
 or use it implies the absolute property. The law does not permit the 
 donor to annex inconsistent conditions, but such restraints are repug- 
 nant and void.' This principle seems decisive of the present case. 
 The estate of Christian King is a fee, and tlie limitations over are void. 
 The subsequent limitations are not defeated because the estate in fee is 
 first given expressly and not by implication, but because where the 
 absolute dominion has once been conferred, either expressly or by impli- 
 cation, all attempts to restrain its exercise are I'epugnant and cannot be 
 sustained." 
 
 1 2 Bluckst. Com. 398. ^ Att'y. Gon'I. vs. Hall, Fitzgibbons, 314. 
 
 3 Co Liit. 223; 2 Keston'3 Est. 3; 1 Hilliard's Abr. 30; 5 Mass. 501; 2 Hil- 
 liard's Abr. 7. 
 
188 PIUVATE LAW. [book ii. 
 
 §18. This case was afterwards reviewed by the same court and 
 ahnost tlie same judges.' The result of the case was reversed, without 
 in the least changing their views as to the doctrine of remainders and 
 contingent remainders, and of Shelley's case as applicable in Ohio ; 
 but by placing more stress upon unusual words in King's will, that 
 showed that he intended by the words " Cliristian's heir or heirs'' his 
 brother's children or issue, and not heirs in the common law meaning 
 of those terms, it was therefore determined that as it was the clear 
 intention of the devisor to use the word heirs in his will to designate 
 the children of his brother Christian as the object of his bounty, and 
 that he intended for Christian only a life estate, with a remainder over 
 to his children, who took as purchaser and not as heirs ; and, therefore, 
 the rule in Shelley's case, though a rule of property in Ohio, did not 
 apply in that case. This view, therefore, gave the estate to Christio.n's 
 children, not as heirs in tail of their father, but as specific donees ; and 
 Christian took only a life estate, and not an absolute estate in fee, with 
 power to alien and dispose of it as he pleased ; and that the whole de- 
 vise was subject to the contingent remainder over to the children of Ish 
 and Cassel. The court further determined that that bequest by the 
 will of personal property, by the same words, gave Christian only a 
 life estate with a remainder to his children, but if the donation could 
 have been construed as a gift in tail to Christian, with remainder to the 
 heirs of his body, which would bring it within the rule of Shelley's 
 case, the remainder would have been void, as the law does not permit 
 entailment of personal pi'operty but does permit a gift for life to one 
 with a remainder of the absolute property to another. The children 
 of Christian, therefore, took both the realty and personalty -as pur- 
 chasers and not as heirs. 
 
 § 19. The case of King's will has thus been abstracted to a greater 
 length than, usual, because it was considered so important a case in 
 relation to the subject of this chapter, and also to inform the student in 
 some measure to what extent the courts in Ohio have recognized the 
 common law doctrine of remainders. Still it is proper to notice, that 
 estates in remainder are greatly modified by principles of law and 
 statutes adopted in Ohio. It has been already noticed that livery of 
 seisin and fealty is unknown here — seisin in law answers the same pur- 
 pose as seisin in fact, and that our statutes declare that no estate shall 
 be given by deed or will to any person but such as are in being, or to 
 the innnediate issue 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 abso- 
 lute estate in fee simple to the issue of the first donee in tail.- These 
 
 > King vs. Beck, 15 0. E. 559. 
 
 s Statute of entailment passed Decern. 17, 1811. See ante, n. 1 in § 17, p. 187, 
 
chap.it.] estates as TO POSSESSION AND TENANTS. 189 
 
 principles will probably greatly modify estates in remainder in Ohio, 
 as far as estates can be entailed here, but there are no proceedings by 
 which the first donee in tail can bar his issue, as they formerly did in 
 England by fine and recovery, and now by conveyance under the recent 
 statutes of William lY. and Victoria. All that can be done here is 
 upon the petition of the first donee in tail, to the court of common 
 pleus, making those interested in remainder or reversion parties, and 
 the court, being satisfied it can be done without injury to the interest 
 of any one, will order the estate sold and the proceeds invested in 
 stocks or otherwise, so as to secure the interest of all. Or in the same 
 manner the estate may bo leased upon terms of years, still preserving 
 the interest of those in remainder. 
 
 § 20. Estates so far have been considered without reference to the 
 number of owners, but as an estate may be owned and held by two or 
 more persons at the same time, each having an estate or interest which 
 the others must acknowledge, it is necessary now to consider estates 
 with reference to the number and connections of such owners. Such 
 estates may be so held of any quantity or length of duration, whether 
 in possession or in expectancy, and according to common law are said 
 to be held in four different ways, — in severalty ; in joint tenancy ; in 
 coparcenary, and in common. 
 
 § 21. 1. Tenancy in sei-'eraWi/ is where the owner holds the estate solely 
 in his own right, without any other person being joined or connected 
 with him in interest during the continuance of his estate. This is the 
 usual and most common way of holding an estate, and requires no 
 illustration in order to understand it. 2. An estate in joint tenancy is 
 where an estate is acquired by two or more persons in the same land, 
 by the same title (otherwise than by descent), and at the same time, 
 and without any limitation by words in the grant or devise importing 
 that they are to take distinct shares or separate interest. The peculi- 
 arity of this estate is, that it is subject to survivorship ; which is 
 founded upon the entirety of interest and unity in its creation. If the 
 estate of one is derived from a different source or conve_yance, or a 
 different interest, or where one of the joint tenants has conveyed to 
 another so that the unity of title and estate is broken, it ceases to be a 
 joint tenancy and becomes a tenancy in common. 3. An estate held 
 in coparcenary is where two or more persons are entitled to an estate 
 as joint heirs of the same ancestor. They are joint heirs entitled to 
 the same inheritance. 4. A tenancy in coTnmon is where two or 
 more hold the same land, and derive their several interests under 
 
 as to the abolition of the effect of Shelley's rule in cases of wills, by statute of 
 March 23, 1840, § 47. 
 ' Statute of April 4, 1859, and March 10^ 18G0. 
 
190 PRIVATE LAW. [book n. 
 
 different titles, or under the same title, but accruing at a different time, 
 or by words in the grant limiting to the grantees distinct shares or 
 interests.' 
 
 § 22. Such are the several distinct tenancies that existed at common 
 law, where there were more than one tenant having a joint interest in 
 the same estate. But in Ohio the courts have decided'' that the estate 
 of joint tenancy, as distinguished from tenancy in common, has no ex- 
 istence here; they have been treated alike — the right of survivorship 
 under the jus accrescendi has never been admitted ; and as there is no 
 substantial difference between coparceners and tenants in common, 
 wtiere tlie land descends to all the children alike, even the technical 
 distinction between them was considered as abolished. Therefore all 
 tenants here, who do not hold in severalty, in consequence of a joint 
 interest in the estate, whether by a joint title acquired by the same act, 
 or by descent as coparceners, or otherwise, are tenants in common, hold- 
 ing a common interest and estate; treated alike, and have the same 
 rights and interests. 
 
 § 23. Thus in Ohio, wherever there is a joint interest in land, by 
 whatever title or act acquired — whether by a joint conveyance, which 
 at common law would be a joint tenanc}'', or by inheritance, which 
 would be coparcenary, or by distinct titles or interest in quantity, which 
 would be tenancy in common — would here be governed by one common 
 rule and incidents — that of tenancy in common ; and the interest of 
 each tenant on his decease would go to his heirs, and in no case would 
 survive to the surviving tenant. It was with a view of preserving the 
 riglit of survivorship, and upon feudal reasons, that the distinctions be- 
 tween joint tenanc^y and tenancy in common were built up. But such 
 joint tenancy could only exist by the acts of the parties fcy grant; and 
 whenever anything was done to destroy the unity of title and interest, 
 as for instance the conveyance of the interest of one joint tenant to 
 another person, he thereby became a tenant in common, for the reason 
 that the unity of their joint title was destroyed, and survivorship did 
 not then exist. 
 
 § 24. By whatever means ajoint interest in land is here acquired, that 
 interest may be alienated by grant or devise, or will descend to the 
 heirs of the tenant just in the same interest and quantity as he himself 
 held it ; and such heirs, devisees, or grantees would become tenants in 
 
 1 1 Stephens's Com. 313 ; 2 Blackst. Com. 182. It seems that ajoint tenant by 
 common law could not convey by devise, for the reason that a devise did not take 
 effect until the devisor's death, when the title had passed to his cotenant. And 
 if there be three or more cotenants and one conveys, the interest of the others 
 remained in joint tenancy. 4 Kent's Com. 360-4. 
 
 2 Sergeant vs. Sternberger, 2 O. K. 305 ; Miles vs. Fisher, 10 O. K. 1 ; Wilson 
 vs. Fleming, 13 0. R. 68. 
 
CHAP. IV.] ESTATES AS TO POSSESSION .AND TENANTS. 191 
 
 common with the former cotenants, each holding their respective quan- 
 tity and interest in the estate unimpaired ; and such tenants are indif- 
 ferently designated as joint tenants, cotenants, or, when heirs, as copar- 
 ceners, yet here they all mean the same tiling and interest — tenants in 
 covimon. 
 
 § 25. The possession of one tenant in common, as a general rule, is 
 the possession of all ;' and of course the seisin of one is the seisin of 
 all ; and no objection is perceived in applying to them the assertion of 
 common law writers to joint tenants — that they are seised per my et 
 per tout.^ As such, the possession of each is protected by law ; and if 
 one cotenant be actually ousted or otherwise kept out of his possession 
 by another, he may have ejectment to recover his possession. It may, 
 therefore, be considered that in regard to the number of tenants who 
 may have an interest in the same land, there are in Ohio but two classes 
 of tenants, — tenants in severalty and tenants in common 
 
 § 26 This greatly simplifies the doctrine in relation to the law of 
 joint interest in land, and renders the incidents of snch tenancy 
 but few. Tenants in common by our law have a unity of possession 
 and interest, and the possession "of one is the possession of all. No 
 one can question his right of possession except his cotenant, who may 
 claim and receive his own. Either may therefore enjoy the whole pos- 
 session and receive the rents and profits. It would appear to be the 
 plainest principles of equity and justice, that where one has so received 
 the rents and profits, he should be accountable for a share of what 
 was actually received after deducting expenses. But in some of the 
 States this has been questioned or denied ; unless it may be where the 
 claimant was an infant,' upon the grounds that at common law he was 
 not liable to be held to such account unless he stood in the light of a 
 bailiff or receiver. A statute in the reign of Anne* remedied this want 
 of equity in the common law, which has been followed in most of the 
 States ; some by statute and others upon principles of equity ; and the 
 statute of Anne should be considered as merely acknowledging and 
 announcing such equity where one cotenant has received more than his 
 just share of the rents and profits. 
 
 § 27. The joint interest of tenants may be severed by the mutual 
 agreement of the parties, ashy a release or conveyance. But where such 
 mutual agreement is not had, either party may have the aid of the court 
 in effecting partition between them, either under the statute regulating 
 partition or by proceedings in equity. The statute provides that such 
 
 1 Peurod vs. Banner, 19 0. E. 218. 
 
 ' "Williams's Real Pro. 112 ; see 1 Stephens's Com. 314, and n. (m). But see 
 contra, 4 Kent's Com. 364. 
 » 4 Kent's Com. 365. * 4 Anne, c. 16. 
 
192 PRIVATE LAW. [book ii. 
 
 joint interest may be severed by partition, by filing a petition in the 
 court of common pleas, and giving the required notice' to the opposite 
 party. Upon hearing the case, the court orders the partition to be had, 
 with due regard to the exact and relative rights of each of the cotenants. 
 A writ of partition then issues to the sheriff, commanding him that by 
 the oaths of three disinterested and judicious freeholders of the vicinity, 
 he cause to be partitioned to the parties the described estate, in the pro- 
 portion to each as ascertained by the court. Accordingly, partition is 
 made by metes and bounds to each of the parties in partition, and the 
 sheriff so returns to the court, which, if there be no valid objection, is 
 confirmed by the court, and thenceforth the parties hold their several 
 rights in severalty accordiilg to the partition. But in case the commis- 
 sioners report that partition cannot be made without injury to the value 
 of the estate, they appraise the premises in their report to the court, who 
 then orders the same to be sold by the sheriff at public sale, for not less 
 than two-thirds of such appraisement; and upon report of the sale being 
 made, the court, upon being satisfied that the sale had been properly 
 conducted, orders the sheriff to make and execute a deed of conveyance 
 to the purchaser, and the purchase money (after payment of costs) to be 
 distributed to the parties according to their several interest. 
 
 § 28. In making such partition, the court in its proceedings does not 
 decide title, or create any new one -^ it barely dissolves the tenancy in 
 , common, leaving the title as it was, except to locate and sever the respec- 
 tive rights of the parties as they appear to the court in the proceedings. 
 If there be a right of dower pending upon the premises, it will be ordered 
 to bo assigned in the same proceedings. But the court will only parti- 
 tion amongst those who ure entitled to possession. They will not parti- 
 tion future interest or expectancy, in case of reversion or remainder 
 while the particular estate exist. 
 
 § 29. In cases of partition, notice and service on the adverse parties, 
 the proceedings are effected by publication in the newspapers of the 
 county forty days before hearing, and are not regarded as adversary, but 
 analogous to proceed! ngsi'u rem, for the purpose of defining rights, with- 
 out creating new ones or establishing titles.^ The demandant is bound to 
 set forth the title and interests of the several tenants truly, and sustain 
 them by proof ; which the defendant may contest by showing his interest 
 or title to be greater.' Although the court will not grant partition where 
 the petitioner is not entitled to immediate possession on account of the 
 rights of an intermediate estate, still a right of entry will entitle a party 
 to the proceedings in partition, without the actual seisin required in 
 
 1 Tabler rs. 'Wisemnti, 2 O. S. E. 207. 
 = Pillsbnry vs. Dugan, 9 O. R. 117; 6 0. E. 269. 
 Harman vs. Kelley, 14 0. R. 502. 
 
CHAP, v.] TITLE BY OPERATION OF LAW. 193 
 
 some of the States. The object of such proceedings under the statute 
 seems to be to secure to the tenant, instead of a joint possession, the 
 exclusive possession of his share of the joint property. In these cases 
 guardians are authorized to appear and act for their minor wards, and 
 may, by an agreement, when done in good faith, effect a valid partition. 
 § 30. One tenant in common cannot work a division of the common 
 property, by conveying his share in a deed defining its limits by metes 
 and bounds. The effect of such conveyance is to pass to the purchaser 
 the grantor's proportion of interest in the part so conveyed that he had 
 in the whole undivided.^ But the grantee in such deed, and his heirs, 
 will be bound by it, so far as it can be made operative without injury 
 to the rights of others ; and in a court of equity, the rights of the grantee 
 in such deed might be so moulded as to do him justice according to the 
 intention of the parties, without injury to his cotenants. All questions 
 in relation to joint interest and partition can be better marshaled in 
 equity than at law, in order to subserve the interest of all concerned. 
 
 CHAPTER V. 
 
 TITLE BT OPERATION OF LAW. 
 
 § 1. The subject which next demands attention, and which applies 
 equally to all the estates into which real property has been divided, is 
 the title by which those estates may be acquired or lost. Title is the 
 means whereby a person has a just right to the property which he may 
 claim as his own.^ To constitute a perfect title there must be the union 
 of actual possession, the right of possession, and right of property. 
 These constituent parts of a title may be divided and distributed among 
 several persons, so that one of them may have the possession, another 
 the right of possession, and tlie third the right of property. In order 
 to form one perfect, consolidated title, all these several parts should be 
 united in one and the same person. According to the civil law, it did 
 not distinguish between the possession and the right of possession, but 
 asserted that a perfect right required the jus proprietatis et possessionis. 
 
 § 2. The law everywhere requires a greater and more certain for- 
 mality in the transfer of property from one to another, and in the muni- 
 ments of title in relation to real property, than that of the personalty. 
 Where the parties have attempted to transfer the title from one to the 
 
 1 9 0. E. 126 ; 13 O. E. 543 
 
 2 4 Kent's Com. Ixiv. 369; 2 Bouvier's Institutes, 849. 
 
 13 
 
194 PRIVATE LAW. [book ii. 
 
 other, but have failed in the execution of the proper conveyance, the 
 legal title may remain in the vendor, and the vendee acquire a title in 
 equity only. This occasions title to be recognized in law as either legal 
 or equitable} 
 
 § 3. Again, title is frequently spoken of as either good or bad, or as 
 either clear or doubtful. A good title is that which gives to a person 
 the legal right of property in the estate it claims, and will enable him, 
 at law, to recover the possession of it. But there is a difference recog- 
 nized between a title which is absolutely bad, and that which is unques- 
 tionably good ; between a title which the court considers to be so clear 
 that it wijl enforce its acceptance by a purchaser, and one where the court 
 will not go so far as to declare it a bad title, but only that it is incum- 
 bered with so much doubt that a purchaser ought not to be compelled 
 to accept it. 
 
 § 4. Titles are derived from various sources, and English law writers 
 classify them as being derived either by descent or hj purchase.' They 
 arrange all titles which were not acquired by descent as that by pur- 
 chase. But it is deemed that a more appropriate classification (for this 
 country, at least) would be, titles acquired — 1, by operation of law; 
 and 2, -by the acts of the parties. The first is where, by mere oper- 
 ation of law and the happening of certain events, the law casts the title 
 upon another, and this will include not only title by descent, but also 
 title by dower, by the curtesy,' by escheat, by forfeiture, by judgment 
 and execution, and by merger. The second class may be strictly included 
 under the term purchase, as legally correct, but may be enumerated as 
 title by alienation, by devise, by occupation and prescription. 
 
 I. TITLE BY DESCENT. ' 
 
 § 5. Descent, or hereditary succession, is the title a person acquires by 
 law, upon the death of the former owner, as his heir-at-law. The heir- 
 at-law is said to be the person upon whom the law casts the title of an 
 estate upon the death of the owner. The laws of different countries 
 adopt different rules in ascertaining and fixing the rights of the heir-at- 
 law. Our law follows the rules of the English common law, but is 
 greatly modified by statute. When the two systems are compared, it 
 produces the following antithesis : 1st. The common law rule was that 
 descent should be traced from the person who last had the feudal pos- 
 session, or seisin, as it was called, — their maxim being seisina facit 
 
 1 As to title, see further under the head of Specific Performance and Eject- 
 ment. 
 
 2 2 Blackst. Com. 199, Co. Litt. 18 a. 
 
 3 Already treated of, B. ii. ch. ii. J 22-38. 
 
CHAP, v.] TITLE B:t OPERATION OF LAW. 195 
 
 stipitem.} This was a relic of those times when right without posses- 
 sion was of no value. Bat according to our law, the heir is not to be 
 sought in the line of the last person possessed, but in him who was last 
 legally entitled, whether he had ever been in possession or not. 2d. 
 The common law made the oldest son heir, to the exclusion of all his 
 brothers and sisters ; but if there were no son, but a number of daugh- 
 ters, they all inherited alike under the name of coparceners. Here, 
 ail the children inherit alike, as heirs, without any distinction among 
 the children of the intestate or their descendants ; and in tracing the 
 line of desdent, no preference is given to the male line. 3d. On failure 
 of lineal descendants, or issue of the person last seised, and collateral 
 relations were sought for as heirs, they must be of the blood of the first 
 purchaser, and of the whole blood of the person last seised. Here, the 
 relation of kindred by blood is not disregarded, for that is too much 
 fixed in the affections of all mankind, but in ascertaining heirs among col- 
 lateral kindred, the half blood is not entirely overlooked, but postponed 
 to the full blood, and preferred to a more distant degree. These differ- 
 ences are founded principally upon the fact that in England feudal prin- 
 ciples still prevail, and for the purpose of perpetuating family portions, 
 they encourage primogeniture and entailment of property, while here, 
 principles are established to have those objects discarded. 
 
 § 6. There is no general or national law of descent in the United 
 States. It is a suliject over which the Constitution of the Union lias 
 no control, and is one of those subjects of legislation which is exclu- 
 sively within the jurisdiction of each individual State. The laws of 
 each State may agree, in their general outlines, with one another, still 
 they differ much in their detail, and it will be impossible to abstract and 
 classify the whole within the space here designed to be occupied. This 
 will be attempted only as to the laws of descent in Ohio, leaving it to 
 the student to compare them with those of any other State, and notice 
 the result. He will find striking similarity in general, and many things 
 in common with the common law of England. 
 
 §■7. Our statute " regulating descents and distribution of personal 
 property" establishes the course of descent of real property, and in each 
 ease of descent, is careful to provide that it shall go to such persons 
 and their legal representatives, and in default of such persons the estate 
 shall pass to the next class and their representatives ; except in one 
 instance, where it is given to the surviving husband or wife for life only. 
 
 An abstract of the statute is this : 
 
 Section 1. When any person shall die intestate, having title or right 
 to any real estate or inheritance in tliis State, which title shall have 
 come to such intestate by descent, or devise, or deed of gift from any 
 
 ■ "Williams's Eeal Pro. 79. 
 
196 PEIVATE LAW. [book ii. 
 
 ancestor, such estate shall descend and pass, in parcenary, to his or her 
 kindred, in the following course: 
 
 1st. To the children of such intestate. 
 
 2d. To the husband or wife, relict of such intestate, during his or her 
 natural life. 
 
 3d. To the brothers and sisters of such intestate (if there be no hus- 
 band or wife, or at the death of such relict), who may be of the blood 
 of the ancestor from whom the estate came, whether of the whole or half 
 blood of the intestate. 
 
 4th. If the estate came by 'deed of gift from an ancestor who may be 
 living, the estate shall ascend to such ancestor. 
 
 5th. To the children of the ancestor from whom the estate came ; if 
 there be no such children or their legal representatives, the estate shall 
 pass to and vest in the husband or wife, relict of such ancestor, if a pa- 
 rent of the decedent, during the life of such relict ; and on the death of 
 such relict, or if there be no such relict, the estate shall pass to and vest 
 in the brothers and sisters of such ancestors or their representatives; 
 and for want of such brothers and sisters or representatives, to the 
 brothers and sisters of the intestate of the half blood, though they be 
 not of the blood of the ancestor from whom the estate came. 
 
 6th. To the next of kin to the intestate, of the blood of the ancestor 
 from whom the estate came. 
 
 Section 2. If the estate came not by descent, devise, or deed of gift, 
 it shall descend and pass as follows : 
 
 1st. To the children of the intestate. 
 
 2d. To, and be vested in, the husband or wife, relict of such intestate 
 
 3d. To the brothers and sisters of the intestate, of the whole blood. 
 
 4th. To the brothers and sisters, of the half blood. 
 
 5th. The estate shall ascend to the father ; if the father be dead, then 
 to the mother. 
 
 6th. To the nest of kin and their legal representatives, to and of the 
 blood of the intestate. 
 
 § 8. This law of descent, thus abstracted, will require the following 
 observation and comment : 1. It divides all cases of inheritance into 
 two classes, — ancestral and non-ancestral estate.' The first is where 
 the intestate received the estate in question by descent, devise, or deed 
 of gift from an ancestor, which must descend and pass, in parcenary, to 
 his or her kindred. The word ancestor, as used in the statute, means 
 any one from whom the estate was inheritable by the intestate, as heir, 
 in the absence of other and nearer heir, — any one from whom the estate 
 might be inheritable, and from whom the estate immediately came. He 
 
 1 See Walker's Introduc, 318, I 345, 11 0. S. R. 430; 14 0. E. 379; 2 Pet. U. 
 S. E. 91, Gardner vs. Collins. 
 
CHAP, v.] TITLE BY OPERATION OF LAW. 197 
 
 must be the last person from whom the intestate received the estate, 
 and he must not be a stranger, but of kin, and connected by blood to 
 the intestate. Thus, where A devised an estate to M his wife, who 
 died intestate and without issue, it was held that the estate went to her 
 brothers and sisters as non-ancestral estate, and not to the brothers and 
 sisters of A, as an estate that came to the intestate from an ancestor, 
 for the reason that under the statute no person could be an ancestor of 
 the intestate within the meaning of the law, unless he be of the blood 
 of the intestate, — a descendant of the same stock.' 
 
 § 9. He must also be the person from whom the intestate immediately 
 received the estate, and the last person from whom he inherited the 
 property.^ It would, therefore, seem that where there has been an in- 
 termediate descent cast, the former ancestor is not to be regarded as 
 the ancestor. Tlius, where A died intestate without issue, or brothers 
 or sisters, leaviug an estate inherited from his father, who received it 
 by descent or gift from his father, the grandfather of A, the intestate: 
 in this case it is the father of A, the intestate, who is the ancestor in 
 the meaning of the law, and not the grandfather from whom the estate 
 originally came. The estate, therefore, would go to the grandfather 
 and his representatives not as an ancestral estate, but as though A had 
 acquired it by purchase. 
 
 § 10. Non-ancestral estate is that which came to the intestate by pur- 
 chase or by devise or deed of gift from a person not of kin or blood 
 relation of the intestate. Such estate descends according to the second 
 section of the act. In tracing the course of descent under either sec- 
 tion, ancestral or non-ancestral, after pursuing the special course therein 
 pointed out, the course of descent in both cases, after exhausting the 
 special course, is then to pass to the ne.xt of kin of the blood of the 
 intestate. In the first case, in pursuing the course of descent, regard 
 is had only to the blood of the ancestor ; in the second, only to that of 
 the intestate. And it is to be observed that the claims of the kindred 
 of the intestate may exist long after the kindred of the ancestor is 
 exhausted. 
 
 § 11. The act distinguishes between being the next of kin and of the 
 blood of the ancestor, and that of the kin and of the blood of the in- 
 testate. In all cases the descent must be to the kindred of the intes- 
 tate except in one instance, that to imsband or wife ; and when seeking 
 the next of kin of the blood of the ancestor, it may lead to a \-avj 
 diiferent line of kindred from that which is the next of kin of the blood 
 of the intestate himself. It therefore becomes important to ascertain 
 
 1 Penn vs. Cox, IG O. K. 31 ; 3 0. S. R. 394. See post, ? 26, and n. 1. 
 
 2 Ciirren vs. Taylor, 19 O. R. 30 ; Prickett vs. Parker, 3 6. S. K. 394 ; 11 0. S. R 
 426, Birney vs. Wilson. 
 
198 PRIVATE LAW. [book u. 
 
 who are kindred, and the manner of establishing who are the next of 
 kin. 
 
 § 12. 2. Kindred consists in being descended from the same parentage, 
 from a common stock or root. The degree of consanguinity is ascer- 
 tained by counting the number between one person and another in thia 
 common stock and branches. Every one's kindred are divided into 
 three principal classes: 1, his children and tiieir descendants or repre- 
 sentatives in a descending line ; 2, his father and mother and other 
 ascendants in the ascending line ; 3, his collateral relations, which in- 
 cludes, in the first place, his brothers and sisters and their descendants, 
 and secondly, his uncles, cousins, and other relations of either sex who 
 have not descended from a brother or sister of the deceased. This 
 gives lineal kindred in the ascending and descending line, wlvile other 
 relations fall into the collateral line. The lineal ascending line will 
 divide into the paternal and maternal ascending lines, from which, at 
 various generations, will descend in branches on either side the col- 
 lateral relations. The terms full Mood and half blood are only applied 
 to brothers and sisters one of whose parents is not the same, and their 
 descendants. 
 
 § 13. The degree of kindred is established by counting the number 
 of generations in the line of consanguinity. In ascertaining the degree 
 of kinjDetween lineal kindred the mode has always been the same, by 
 counting the number of generations either up or down the direct line. 
 But in ascertaining the degree of consanguinitj' between collaterals, 
 there are two modes of computing, — the one by the canon latv, which 
 has been adopted by the English common law, and the other by the 
 civil law, which has been generally adopted in this country, and pre- 
 vails in this State. 1. By the canon law, they begin at the common 
 ancestor and reckon downward, and the degree the two persons or the 
 more remote of them is distant from the ancestor, is the degree of 
 kindred subsisting between them. 2. By the civil law, they begin at 
 either of the persons in question, and count up to and including the 
 common ancestor, and then dovvn to the other person, calling it a de- 
 gree for each person both ascending and descending, and the number 
 thus found is the degree in which they stand related. 
 
 § 14. The mode adopted by the civil law is preferable, fof it ascertains 
 the actual degree in all cases, while that adopted by the canon law 
 may make different relations stand in the same degree. The uncle and 
 nephew stand in the same 'degree by the canon law, for they only 
 count in one line the longest, which in this case is only two degrees ; 
 but between you and your grand-nephew there are three degrees, for 
 then they count on the other line the longest, from the grandfather to 
 the uncle is one, to the nephew is two, and to the grand-nephew is three • 
 while, by the rules of the civil law, they would count up one and dowa 
 
CHAP, v.] TITLE BY OPERATION OF LAW. 199 
 
 the other, and by that they make your nephew in the fourth degree 
 instead of the second, and the grand-nephew in the fifth degree instead 
 of the third. But this difference is immaterial, as it seems that both 
 modes establish the same person to be the heir. 
 
 § 15. 3. Affinity is a relation recognized in our law of descent as 
 well as consanguinity, but only to a very limited extent. Affinity is 
 the relation formed by marriage, and is sometimes called alliance, wljicb 
 is very different from that of kindred, which is founded upon that of 
 blood or consanguinity. The ties of affinity are not those of kindred 
 by which degrees of consanguinity are established. Thus, my brothers 
 and sisters may be my nearest of kin, but the brothers and sisters of 
 my wife, though related to me by affinity or alliance, are not my kin- 
 dred, and are not counted in establishing inheritance. 
 
 § 16. 4. Then who is the heir ? The heir is he upon whom the law, 
 upon the death of the owner as intestate, casts the title of an estate as 
 an inheritance. Usually he is and must be the nearest of kin and of 
 the blood of the intestate. The law may make any one an heir with- 
 out regard to blood or kindred. Thus, by the Eoman law the term 
 heirs was applied to all persons who were called to the succession, 
 whether as devisees, or by operation of law.' And I apprehend that, 
 under our law, husband and wife dying intestate and without issue are 
 heirs to each other, and receive the estate from each other as an estate 
 of inheritance. 
 
 § 17. 5. Inheritance by our law will enable the heir to claim all the 
 estate and interest the intestate, at the time of his death, had in law or 
 equity^ in all his freehold estate which he held in fee, and also his 
 leasehold estate that is permanent and renewable.' But all inherit- 
 ance is subject to be applied by the administrator to the payment of the 
 debts of the intestate. The heir is entitled to all connected with the inher- 
 itance, except what goes to the personal representative.* Temporary 
 leasehold estate does not go to the heir, but to the personal representa- 
 tive as a chattel or personal property. 
 
 § 18. Subject to the positive direction of the statute regulating de- 
 scents, and the construction put on it by our courts, as already stated, 
 the law of descent is much controlled and governed by certain rules and 
 
 1 4 Kent's Com. 375; 2 Bouvier's Inst. 354. "Lo, one born in my house is 
 my heir." — Gen. xv. 3. 
 
 2 Avery vs Dufrees, 9 O. R. 145; 17 O. K. 31. 
 
 3 See statute of March 5, 1839 ; N. Bank of K. vs. Eoosa, 13 O. E. 334 ; Loring 
 vs. Melendy, 11 O. E. 355. 
 
 * See the subjects Administration, Fixtures, Emblements, etc. The Mne of dis- 
 tinction between the inheritance and personal property in Ohio should be, that all 
 the estate and interest of the intestate in any lands and tenements which would 
 endure over three years from the death of the intestate should go to the heir. 
 
200 PRIVATE LAW. [book ii. 
 
 canons of descent, pretty generally adopted throughoutthe Union as the 
 true principles governing descent, to wit :' 
 
 1. The estate shall descend to the lawful descendants of the intestate 
 in the direct line of lineal descent; if there be but one person, then to 
 him or her alone, but if more than one person, and all of equal degree 
 of consanguinity to the intestate or ancestor, then the inheritance shall 
 descend to' the several persons as tenants in common in equal parts, 
 and their descendants, however remote such first degree or class of 
 heirs may be from the intestate, their common source of consanguinity. 
 
 § 19. 2. Whenever a person dies intestate, leaving an estate to be 
 divided among a class of descendants in the same degree, whether 
 their consanguinity to the intestate be lineal or collateral, they shall 
 take per capita; but where one or more of them are dead, leaving 
 others living, the issue of those who have died shall take per stirpes. 
 
 This rule applies in all cases where there are a number of heirs in 
 different degrees ; those in the nearest degree to the intestate determines 
 the class ; and the division will be made according to the number in 
 that class, who are the roots from whom their respective descendants 
 must take their shares, to be again divided among them according to 
 their several degrees. 
 
 § 20. This may be illustrated thus : H died intestate,^ without issue, 
 and leaving an estate acquired by purchase. His brothers and sisters 
 were all dead, but one brother left three children, another four, another 
 eight, and a sister three children ; and one of the last had died leaving 
 two children. The first class, therefore, of his heirs were his nephews 
 and nieces, of whom there were eighteen, and one of these had died 
 leaving two children. The estate, therefore, was divided into eighteen 
 parts: one to each nephew and niece, and one to be divided between 
 the two children as the representatives of their deceased mother. Now, 
 in this case, if any one of the four brothers and sister had been living, 
 then the first class of heirs vpould have been brothers instead of nephews, 
 and in that case the estate would have to be divided into four parts in- 
 stead of eighteen ; and the nephews and nieces of the deceased brother 
 or sister, instead of taking each one-eighteenth, would take their several- 
 parents' one-fourth, to be divided between them joer stirpes. 
 
 § 21. The rule may be further illustrated by this case. A father died 
 intestate, leaving two sons and the children of two other deceased sons; 
 his heirs, therefore, were these two living sons, and his grandchildren 
 as the representatives of his two deceased sons. The first class of heirs 
 were his children, and they and their representatives made four shares. 
 This was readily yielded ; but it was contended that the shares of the 
 
 1 4 Kent's Com. 371; 2 Bouvier's Inst. 366. 
 
 2 Evers vs. PoUbi, 9 0. S. K. 827 ; 4 Konts Com. 386. 
 
OHAP. v.] TITLE BY OPERATION OF LAW. 201 
 
 two deceased sons must be tlu'own together, and divided per capita 
 among the grandchildren ; but it was decided that the rule contended 
 for extended only to the first class, and therefore the grandchildren 
 must take the share of their respective parent separately, and divide it 
 among themselves per stirpes} 
 
 § 22. 3. When the descendants of the intestate are exhausted, the 
 law then seeks the heir in the ascendants and collateral. ' In doing so 
 they stop at the first ancestor living, or who has any descendants to 
 represent him, always giving a preference to a kindred in a descending 
 collateral line to one in the same degree in the ascending line ; that is, 
 an uncle and the great-grandfather are in the same degree, but the uncle 
 takes before the great-grandfather, and so will all and any of the de- 
 scendants of the grandfather to the great-grandfather or his descendants. 
 But in every instance the positive statute as to the law of descent must 
 govern in preference to any of these general rules. 
 
 § 23. By our law, descendants are in all cases preferred to all others. 
 Where the descendants are exhausted, as a general rule, the nearest of 
 kin is the heir; but our statute gives a preference to the brothers and 
 sisters, first of the full blood and then the half blood, rather than the 
 father who is one degree nearer. Our statute next gives a preference to 
 the husband and wife to any kindred except descendants — to any kindred 
 in either the ascending or collateral line.. Preference is next given to 
 the kindred of the blood of the ancestor when established according to 
 the rules already pointed out for fixing and ascertaining the ancestor 
 according to the meaning of our statute ; and, generally, preference is 
 given to the full blood over that of the half blood, but they are preferred 
 to a kindred a degree further off; but in some instances our statute has 
 put the brothers and sisters of both bloods together without distinction; 
 that is, "brothers and sisters of the ancestor," under the fifth clause of 
 the first section of the statute, which will include both the full and half 
 blood, and are preferred to the brother and si.sters of the intestate, of the 
 half blood, who are not of the blood of the ancestor from whom the estate 
 came." When these preferences are exhausted, then the rule is, the next 
 of kin of the blood of the intestate. 
 
 § 24. As a further illustration of our law of descent, let it be supposed 
 that A had executed a deed of gift of an estate to B, his son, for life, 
 with the remainder over to his (B's) two daughters C and D, and in 
 case these daughters should survive B, then to them in equal shares 
 in fee, hut in case either at the death of B should be deceased with- 
 out issue to take her share, then to the survivor of them in fee. Here 
 C and D have a vested remainder each for one-half of the estate in 
 common, subject to be defeated by her death without issue before the 
 
 1 16 O. S. K. 404. 2 Oliver vs. Sauders, 8 0. S. R. 501. 
 
202 PEIVATE LAW. [book ii. 
 
 death of B, and each has a contingent cross remainder^ in the moiety of 
 the other, dependent upon her sister being dead without issue at the 
 deatii of B, the termination of the particular life estate upon which the 
 remainder depended. Now, suppose B to be dead, and that D, one of 
 the daughters, have died without issue before B's death : in tliat case 
 C receives the whole remainder by a deed of gift from her grandfather, 
 after which C dies intestate without issue, leaving her husband to sur- 
 vive her. By our law regulating descent, the estate upon the death of 
 C was an ancestral estate, which she received, not as an inheritance from 
 her father, but by deed of gift from her grandfather A, who, being her 
 blood kindred, and not a stranger, is within our law her ancestor; and 
 the surviving husband " her relict " entitled to a life estate in the estate 
 so left by his dead wife, under the second clause of the first section of the 
 act.2 
 
 § 25. In the last case supposed, if C had purchased the estate, or 
 if A, her grandfather, from whom she had received the estate by a deed 
 of gift, instead of being her "kindred and relation by blood," had been 
 a stranger, then her husband "relict,'' etc. would inherit the estate 
 from her in fee-simple as an estate of inheritance from his wife, under the 
 second clause of section two of the act." But, as it is, he takes only a 
 life estate as it is an ancestral estate, and the remainder or reversion, 
 whichever it may be called, passes to some other heirs as an inheritance. 
 At common law there was no such thing as a reversion or remainder 
 created by descent or inheritance — they were always created by grant 
 or devise. On the death of C's husband, to whom will the estate pass ? 
 The act as to ancestral estate provides, by clauses 3, 4, and 5, if such 
 intestate leave no husband or wife, relict of himself or herself, or at the 
 death of such relict, the estate shall pass to and vest in the brothers and 
 sisters of the intestate who may be of the blood of the ancestor from 
 whom the estate came, or their legal representatives, whether such 
 brothers and sisters be of the whole or half blood of the intestate ; and 
 if there be no such brothers and sisters, or their representatives, and if 
 the estate came by deed of gift from an ancestor who may be living, the 
 estate shall ascend to such ancestor and then as the act directs. Now, 
 it is a very curious question as to lulien the heirs outside of the interest 
 of the husband will take a vested interest. Is it upon the death of C 
 or upon the death of the husband ? The act may point out a very dif- 
 ferent set of heirs at the death of C from those who may be living to 
 take at the death of ihe husband. It is apprehended that the L6irs of 
 
 ' 1 Stephens's Com. 326-556 ; 4 Kent's Com. 193. 
 
 a Birncy vs. Wilson, 11 0. S. R. 426 ; in this case the wife did not inherit from 
 the liusband as the law then was. 
 "See ante, this eh. | 7. 
 
CHAP, v.] TITLE BY OPERATION OF LAW. 203 
 
 C would take at her death a vested estate, subject to the life estate of 
 the husband, as a remainder. The statute then points out the coni-se of 
 descent. C had no brothers nor sisters, nor their issue, and as A was 
 living, Ihe inheritance (subject to the life estate) would pass and ascend 
 to him. But if there had been a descent cast between A and C so that 
 it ceased to be an ancestral estate, then the estate would probably go to 
 the children of A,' as the nearest of kin, and heirs of C.'' 
 
 §26. But suppose that D had survived B as well as C: then a 
 moiety of the estate by means of the deed of gift from A would have 
 been fully invested in her absolutely in fee. jS'ow, suppose that D at 
 her death had left a daughter an only issue, who afterward married and 
 died without issue, being entitled as heir to the moiety her mother D 
 received from her grandfather A by the deed of gift: as she died with- 
 out issue, leaving a husband to survive her, he would inherit a life 
 estate in the moiety as an ancestral estate which the wife received by 
 descent from her mother D as an estate of inheritance. In this case 
 her mother D, from whom she immediately received the estate, is the 
 ancestor, and not the grandfather from whom it originally came. Upon 
 the death of D in this case without issue and intestate, her husband 
 would receive a life estate in her moiety, and her sister C who survived 
 her would inherit the remainder after the expiration of the life estate, as 
 the next of kin of the blood of the ancestor. But if the wife — the 
 daughter of D, instead of having received it as an estate by descent 
 from her mother D — had received as a gift from a stranger, or by pur- 
 chase, then her husband, upon her death intestate and without issue, 
 M'ould take the estate as an inheritance in fee. But should ho not 
 dispose of it in his lifetime, but hold it as his estate subject to the rules 
 of inheritance, it would be in him an ancestral estate, having received it 
 by descent from his wife, who in this case was the ancestor pointed out 
 by the law; and in case he died intestate and without issue it would 
 pass to the kindred of such ancestor in the manner pointed out by 
 the law of descent, which in this case woiild be C or her descendants, 
 subject to a life estate in the second wife if he had such. But if his wife 
 was the purchaser and not an ancestor, then if the husband had legiti- 
 mate children even by such second marriage, such issue would in that 
 case take the estate as the first heirs to their father, otherwise it must 
 go to the kindred of the wif6 from whom the estate came by descent.' 
 
 1 See Curren vs. Taylor, 19 O. E. 36. 
 
 2 That is, in case C inherited the estate from her father B, instead cf receiving 
 the estate as a gift from her grandfatiier A. 
 
 Ancestral estates are dependent — 1, On descent; 2, on devise or deed of gift 
 from any ancestor. When the estate came by descent, the blood of the ancestor 
 is not material ; but when by devise or gift, it is, in order to its being an ances- 
 tral estate. See ante, ^ 8, and n. 1 and 2. 
 
204 PBIVATE LAW. [book ii. 
 
 § 27. The statute regulating descents contains a number of provisions 
 tending to malse its operations more equitable and just. It provides that 
 personal estate shall be distributed agi'eea,blj to the course prescribed in 
 the second section, i.e. non-ancestral estate, saving such rights as any 
 widow may have to any portion of the personal estate, and all rights 
 that any person maj' have in any estate by curtesy or dower. 
 
 § 28. It also provides that in case any infestale shall have made any 
 advancement to his child or children, or their descendants, such advance- 
 ment shall be taken as part of the estate, and so accounted. But the 
 real and personal estate are kept separate, and though any one's portion 
 or share may be thereby made less, they shall not be made to return 
 what they may have received. 
 
 § 29. Bastards are made capable to inherit and transmit inheritance 
 on the part of their mother, as though they were legitimates. Descend- 
 ants of the intestate, begotten before his death, but born thereafter, 
 shall inherit in the same manner as though born in the lifetime of the 
 intestate and had survived him. To this extent there may be a shift- 
 ing inheritance; that is, inheritance that once takes place and after- 
 wards lias to yield to after-born issue. And although our courts in one 
 case sustained such shifting inheritance, in a subsequent case they estab- 
 lished firmly the doctrine that such shilting inheritance does not exist 
 in our system.' 
 
 IT. TITLE BY ESCHEAT. 
 
 § 30. Title by operation of law is where the law and not parties is 
 the principal and active agent iu casting the right and title upon the 
 person who holds it. In most of .these estates where both persons and 
 the law have been active agents in procuring or securing the title. But 
 in one class the law is the principal and active agent in securing the 
 title, and in the other, persons and their acts, though aided b}"- the law, 
 are the principal agents in the transfer of the title. Of those titles 
 whicii were procured principally by the operation of law, there have 
 been already considered, under the respective heads, title bij dower, by 
 the curtesy, and by descent ; and of this class there is yet to be con- 
 sidered, title hij escheat, b}' forfeiture, by judgment and execution, and 
 by merger. 
 
 § 31. Our statute declares that when any person dies intestate, leav- 
 ing no heir or widow to receive his estate, either personal or real, it 
 shall es('heat to the State, and it is made the duty of the attorney for 
 the State to take charge of such property, and care for the interest of 
 the State in relation to it. This escheat is not upon feudal principle,- as 
 in England, connected with tenure, but upon the universal rule of civil- 
 
 1 See Drake vs. Rogers, 13 0. S. E. 21 ; 7 0. E. 160. Stat. April 16, 1802, J 3. 
 
CHAP, v.] TITLE BY OPERATION OF LAW. 205 
 
 ized states, that when a deceased owner has left property, without heirs 
 to inherit it, it should vest in the public, and be disposed of for the 
 beneiit of the government. 
 
 III. TITLE BY POEPEITUEE. 
 
 § 32. Forfeiture, when applied to real property, is where the owner, 
 by some sentence of the law, loses his title to the land as a punishment 
 for some misconduct or negligence. It very seldom exists in this country. 
 The Constitution of the United States declares that no attainder of trea- 
 son shall work corruption of blood or forfeiture, except during the life 
 of the person attainted; and this has been further assured by a statute 
 of the Union. Forfeiture, as a punishment for crime, is very uncommon 
 in this country. Where it does occur, it is more usually as case of 
 agreement, where the parties have agreed upon certain forfeiture as the 
 penalty for the neglect or non-fulfillment of certain stipulations, as in 
 the cases of mortgages, partial payment of the purchase money, or the 
 forfeiture of a certain sum as stipulated damages. There are also 
 certain forfeitures of estate on account of the committing of waste, 
 non-payment of taxes, and the non-payment of rent, and the like, — each 
 particular case depending upon rules and principles of its own, and for 
 which the student is referred to various heads in other portions of this 
 work. 
 
 IV. TITLE BY JUDGMENT AND EXECUTION. 
 
 § 33. A person may have the possession of or the right to real prop- 
 erty, where his title would be dependent upon a judgment of a court, 
 with or without an execution to carry the judgment into effect. A judg- 
 ment is a decision of a court, or some tribunal of competent jurisdiction, 
 announcing the sentence of the law, as the result of the proceedings be- 
 tween the parties therein, for the redress of some injury. Such judg- 
 ment may be for the possession of the property in question itself; or it 
 may be to ascertain and settle the title and quiet the enjoyment of it ; 
 or it may be for the payment of a certain amount in money as damages 
 in satisfaction of some injury ; or there may be in a judgment some or all 
 of these elements. Lands and tenements may be the subject-matter of 
 a judgment, as to the possession or title ; or they may be the subject 
 that has been lost or acquired by an execution issued to produce satis- 
 faction of the judgment for the payment of damages. In all cases, it is 
 the judgment that is the foundation of the title acquired, and therefore 
 the execution should be supported upon a proper judgment upon which 
 it issued. It is the universal practice in Ohio upon the sale of any 
 landed property, either upon execution or an order of court, for the per- 
 
206 PRIVATE LAW. [book n. 
 
 son whose duty it is to make the sale, to make return of the proceed- 
 ings to the court, showing that it has been duly advertised and appraised 
 by three freeholders, upon oath and actual view of the premises, and 
 that the sale was made at public auction at the time and place adver- 
 tised, for at least two-thirds of the appraisement, and then the court, upon 
 being satisfied that the proceedings as to the sale were all correct, will 
 confirm the sale and order the person who made the sale, or his succes- 
 sor, to make and execute a deed of the premises to the purchaser. 
 
 § 34. Where a judgment of a court is relied upon as the foundation 
 of the title, the question of title cannot be judicially settled except by the 
 production of the record, or a duly authenticated transcript thereof In 
 that case it must appear (or at least the contrary must not appear) that 
 such court had jurisdiction both of the subject-matter and of the parties 
 thereto. The want of these requisites in these two particulars would 
 render the- judgment absolutely void, and the proceedings a nullity. 
 But any error or irregularity in the intermediate proceedings would not 
 be an objection to the title acquired under it. Such errors are only 
 voidable and not absolutely void, and are only available upon proceed- 
 ings in error in the same court that rendered the judgment, or a court 
 having an appellate jurisdiction over it. It is a general rule that where 
 a title has been obtained under a judgment, or under a judgment and 
 execution, and it has passed in good faith and for valuable considera- 
 tion into the hands of innocent purchasers, the reversal of the judgment 
 upon such voidable errors does not affect their title, unless the proceed- 
 ings are so kept up that there were no decided intermission in the pro- 
 ceedings, and that there had been always in the mean time a lis pendens. 
 By a statutory provision in Ohio, a proper decree or judgment of a court 
 for a title to pass from one to another of the parties before them, operates 
 as a conveyance without any deed of conveyance being actually exe- 
 cuted. The decree itself operates as such deed. 
 
 § 35. When a person claims title by means of a sale upon judgment 
 and execution, he is bound to show a proper judgment to warrant the 
 execution, and then a deed reciting or referring to the judgment and 
 execution, and reciting the sale and conveyance to the purchaser or his 
 assigns. He may rely upon the judgment, execution, and the deed ; 
 and this will be sufficient though there may be errors in some of the 
 proceedings.* As to the judgment the rule is as already stated. Errors 
 in the proceedings upon the execution in the appraisement, advertising, 
 and sale will not avail against the title, — at least in the hands of inno- 
 cent purchasers. The remedy is against the person wha failed to do his 
 duty, or who was guilty of the negligence. Such deeds to be executed 
 by officers must, like other deeds, be executed uijder seal, attested by 
 
 » See Piatt vs. Piatt, 9 O. R. 37; Walpole vs. Ink, 9 O. R. 142-154-184, 
 
CHAP. VI.] TITLE BY THE ACTS OF TEE PARTIES. 207 
 
 two witnesses, and acknowledged. Such conveyance convej's not only 
 the title which the defendant in execution had to the property, but also 
 where the judgment or the judgment debtor held any lien, it transfers 
 that as an incident, and operates by relation with reference to the date 
 of the judgment and lien. 
 
 A statute of Ohio also provides an important relief to purchasers at 
 judicial sales, by declaring that where any such is proved to be void or 
 ineffectual, the purchaser shall be in equity subrogated to the rights of 
 the judgment creditor whose claims he has paid by means of the pur- 
 chase money. 
 
 V. TITLE BY MEEGEPv. 
 
 § 36. Merger is where two estates meet in the same person, and the 
 inferior one by operation of law is swallowed up and annihilated in the 
 larger estate. The subject has already been spoken of in relation to 
 estates for years. There are, therefore, cases where the title claimed 
 by one may defeat that of another by this operation of law known as 
 merger. The merger must be produced either from the meeting of an 
 estate of higher degree with an estate inferior, or from the meeting of 
 the particular estate and the immediate reversion or remainder in the 
 same person ; for the intermediate estate is necessary to prevent the 
 merger ; and when that ceases, the merger is complete, and the two 
 estates become in contemplation of law united in one for the benefit 
 of him who holds the larger or ultimate estate. In order that this 
 should take place, it is necessary that the estates should meet in the 
 same party, at the s>am.e time, and in the same right. For, if these do 
 not concur, the merger does not take place. Where the rights are 
 held at different times or in different rights, as where a life estate is 
 held in one's own right, and an estate for years as administrator, or en 
 auter droit, there can be no merger, and no addition, right, or interest 
 acquired by the accidental union of title or interest in the same person. 
 
 CHAPTER VI. 
 
 TITLE BY THE ACTS OP THE PARTIES. 
 
 § 1. The several means by which a title is acquired to lands and 
 tenements by the acts of the parties are denominated title, by purchase. 
 They may be enumerated as: 1, title by deed; 2, title by devise; 8, 
 title by matter of record ; and 4, title by occupation and prescription. 
 At common law all acquisition of real property by agreement of the 
 
208 PRIVATE LAW. [book ii. 
 
 parties was required to be accompanied by an act of delivery of pos- 
 session, called livery of seisin, which was founded upon feudal prin- 
 ciples, and intended to give notoriety and security of title. In this 
 country the title is not dependent upon actual seisin, but upon the right 
 which gives seisin in law; and for the notoriety, it depends upon 
 recording the conveyance in the public records of the county. The 
 transfer of the title from one to another in this country is, therefore, 
 greatly simplified. 
 
 I. TITLE BY DEED. 
 
 § 2. The transfer of real property from one to another by the acts of 
 the parties is called an alienation, and one of the most common forms 
 of alienation is that by deed. But before considering the requisites of 
 a deed, let it be considered: 1, what may be alienated and conveyed by 
 deed; 2, who may convey and execute a deed; 3, who may acquire title 
 by deed ; 4, the requisites of a deed, — 1, by statutory requirements, and 
 2, by common law. A deed is almost the universal instrument by 
 which a title or any interest is created in lands and tenements, trans- 
 ferred from one to another, whatever the estate may be, whether a fee, 
 a freehold, or a term, or on whatever conditions the conveyance may be 
 limited. 
 
 § 3. 1. What may be alienated and conveyed by deed. Almost any 
 and every right and interest that a person may or can have in any 
 lands or tenements in Ohio may be alienated and conveyed to another 
 AH the estates that have been already treated of, are subject to such 
 alienation and transfer. But at common law there were many restric- 
 tions upon the alienation and transfer of real property, of which livery 
 of seisin is one ; and the restriction founded upon champerty was 
 another, by which a man, who is wrongfully ousted out of the pos- 
 session of his land, is prohibited from selling his right or title until he 
 has recovered possession, under pretense that it would encourage the 
 powerful to purchase pretended titles and thereby oppress the weak ; 
 though such right of entry might be disposed of by devise. The same 
 difficulty existed in England with respect to a contingent interest, which 
 generally was not transferable at law, yet the assignment of it for a 
 valuable consideration would be protected and enforced in a court of 
 equity; and the vendor, when the contingent interest became vested, 
 would be compelled to make a conveyance of it pursuant to his agree- 
 ment.' 
 
 § 4. In Ohio, however, there is no statute against champerty, or any 
 law which prohibits a man from taking a conveyance while the vendor 
 is wrongfully kept out of the possession ; or while the land is in the 
 
 • 1 Stephens's Com. 437. 
 
CHAP. VI.] TITLE BY THE ACTS OF THE PARTIES. 209 
 
 adverse possession of a third person.' Whatever title or estate a 
 person may have here, that is not too contingent and remote to have 
 appreciable value or is not a mere uncertain expectancy, may be the 
 subject of alienation and conveyance. Tlie rule being that what is 
 termed either a mere possibility or a remote possibility, which in law is 
 a possibility upon a possibility, cannot be released, it not being regarded 
 as a right in being which can be the subject of a release, much less of a 
 deed ; for instance, such a right only as the heir-apparent has of suc- 
 ceeding to the estate of his ancestors, or as where a child by an agree- 
 ment duly signed and sealed, agreed with the father, in consideration of 
 two thousand dollars, then received in full of all claims on his estate 
 after his death, as one of his heirs ; and thereby binding himself and 
 his heirs to set up no farther claim ; the court held that it did not pre- 
 clude him from so setting up his claim as one of the heirs of the estate.' 
 The right so assumed to be released was held to be a mere possibility, 
 and not the subject-matter of a release at the time of its execution. 
 
 But all future contingent interest in real estate, in the nature of a con- 
 tingent remainder or executory devise, being an interest in land known 
 to the law, may be transferred by devise or deed, and where there is a 
 present existing right, although to take effect in future, and even then 
 only on a contingency, it may be released.' A release, however, would 
 be sustained in a more doubtful case than a conveyance. 
 
 §5. 2. Who maij convey or execute a deed. As a general rule, all 
 who have any interest or title in lands may sell and convey; but it is a 
 serious and criminal offense to pretend to sell and convey when the 
 vendor knows he has no title or has no reason to believe that he has. 
 
 To the general rule, that all who have any title or interest may con- 
 vey the whole or any part of their interest, there are a few exceptions, 
 which are more easily stated than to classify all who may convey. 
 
 The vendor, in order to have the capacity to sell and convey, must 
 have the capacity which enables him in law to enter into contracts — 
 must be sui juris, or authorized by statute to perform the act. 
 
 The persons upon whom the law places restrictions as to their legal 
 capacity in this respect are : 1, persons who are termed non compos 
 mentis or of unsound mind; 2, infants; and 3, married women. The 
 deeds executed by these may be void or voidable, as the law determines, 
 in each particular class. The power of a corporation to make or receive 
 
 1 Wall vs. Ashley, 9 O. E. 96. Cresinger vs. Welch, 15 0. K. 156. 
 
 "^ But without doubt, the two thousand dollars must be accounted for as an ad- 
 vancement. 
 
 3 Thompson vs. Hoop, 6 0. S. E. 480- Needles vs. Needles, 7 O. S. E. 432; 
 Murphy vs. Murphy, 12 0. S. E. 416. See also Williams's Eeal Prop. [231], 258, 
 n. 1, and 282 [268]. 2 Leading Cases in Equity, 573. Eowus. Dawson, 4 Kent's 
 Com. 254, 255, n. c. 
 
 14 
 
210 PBIVATE LAW. [book ii. 
 
 a conveyance will depend upon their corporate power to hold or convey 
 land. 
 
 § 6. Persons of unsound mind are, of course, incapable of executing 
 a valid conveyance, for the same reason that their ordinary contracts 
 may be questioned.' 
 
 The deed of an idiot must be utterly void. But the deed of a lunatic 
 who has lucid intervals may be void or voidable, dependent upon the 
 circumstances under which it was executed, and the mental capacity of 
 the vendor, at the time, to understand and give his assent to what was 
 done. 
 
 Formerly they had in England a most singular and preposterous doc- 
 trine upon this subject. They permitted others interested in the ques- 
 tion to avoid the deed on the score of the want of mental capacity, but 
 the non compos himself, during his life, was not permitted to allege 
 anything in avoidance of it, on the ground of his own past insanity, upon 
 the maxim, that no man shall be allowed to stultify himself, — a maxim 
 in itself very well, but most miserably applied.^ This absurd doctrine 
 has been abrogated by statute in the*eign of Victoria. 
 
 § 1. 2. Infants are under a legal incapacity to execute a deed of con- 
 veyance until (by our law) males arrive at the age of twenty-one and 
 females that of eighteen. The disability is in this case the same as it is 
 in relation to all other contracts, and founded upon the same principles.' 
 The deed of the infant when by him executed in form is not void, but 
 voidable. 
 
 The principal difference between a transaction that is said to be in 
 law utterly void, and that which is only voidable, is this, — that a void 
 transaction is incapable in law of being ratified or confirmed ; but that 
 which is only voidable stands good until set aside or avoided, as it may 
 be by proper proceedings in due time ; or such voidable act may after- 
 ward be ratified and confirmed. It is said that the acts of an infant 
 which do not take effect by the delivery of his own hand are void, bat 
 those which take effect from his own delivery are only voidable ; there- 
 fore a deed executed for him by his attorney is void, and cannot be 
 afterward confirmed ; but a deed of his own delivery is only voidable, and 
 may be ratified and confirmed. If the infant intends to disaffirm his deed, 
 he should do it at once, or at least so soon as he arrives of age ; for 
 acquiescence after that may be evidence of his confirmation, though mere 
 delay to disaffirm, short of the statute of limitations, may not be a bar to 
 such disaffirmance. 
 
 1 1 Parsons on Contr. 310 ; Williams's Keal Prop. [59]. 1 Stephens's Com. 
 441. 
 2 1 Stephens's Com. 441, and n. (s) ; 2 Blackst. Com. 292. 
 » See the chapter on Contracts, post, ch. ix. 
 
CHAP. VI.] TITLE BY THE ACTS OF THE PARTIES. 211 
 
 After the infant becomes of age, an act then done by him may materi- 
 ally affect the question, and be evidence of his confirmation ; such ns 
 receiving part of the consideration money or other acts showing his 
 acquiescence ; or if he should convey the same property to another with- 
 out having confirmed his former deed, it will be a disaffirmance of it. 
 If a deed has once been confirmed by the infant on coming of age, it 
 cannot afterward be impeached by his representatives, and indeed with- 
 out some evidence of his disaffirmance (on coming of age) it would be 
 difficult for his representatives to succeed in disaffirming the convey- 
 ance. But the deed of an infant executed by his attorney cannot be con- 
 firmed, for that is void, and not merely voidable.' 
 
 § 8. 3. There is a general incompetency on the part of married women 
 in the execution of contracts, and especially is this the case in the sale 
 and conveyance of real property. The statute in relation to the execu- 
 tion of deeds enables a married woman, by uniting with her husband 
 in the conveyance, and by a separate acknowledgment, to convey any 
 interest she may have in such property, or to release her right of dower. 
 But any attempt to effect a sale or conveyance, that falls short of a full 
 compliance with the statute on the part of the married woman, is abso- 
 lutely void, and not subject to a future confirmation, even after she 
 becomes a, feme sole, except by a new conveyance.^ An exception may 
 exist as to the separate property of the wife, which she may hold under 
 the protection of a court of equity. And it should be observed also, 
 that husbands and wives are incapable, in law, to execute any convey- 
 ance or to make any contract between each other, for in law they are 
 considered but as one person, and a person cannot either make a con- 
 tract with himself or execute a conveyance to himself. Whenever it is 
 desirable to execute a conveyance between a husband and wife, it should 
 be done through the medium of a trustee. The husband and wife 
 should make a conveyance to some third person as a trustee, and that 
 person, in pursuance of the intention of the parties, may then convey 
 the same property to either the husband or the wife as it was intended. 
 
 § 9. Usually, where a conveyance has been attempted to be executed, 
 and some mistake has been committed so that it fails to be a legal con- 
 veyance and transfer of title, still, in equity, it may amount to an agree- 
 ment to convey, and evidence of a contract between the parties which 
 a court of equity will enforce and carry out. But this is otherwise as 
 regards the three classes of persons just spoken of. In the case of 
 an infant or a married woman, where their deeds are incomplete, a 
 court of equity cannot, as in other cases, enforce the original agree- 
 
 » Cresinger vs. "Welch, 15 0. B. 156 ; Drake vs. Ramsey, 5 0. B. 251 ; 1 Steph- 
 ens's Com. 441 ; 2 Kent's Com. 191. 
 ' Worthington vs. Young, 6 O. K. 313 : 10 O. K. 85. 
 
212 PBIVATE LAW. [book ii. 
 
 ment and complete the conveyance, for in such cases a court of equity- 
 can only leave the parties to abide by the positive law, and where they 
 have failed in the execution of a legal conveyance, it leaves the trans- 
 action as though nothing had been done. 
 
 § 10. 3. Who may acquire title by deed. This is a very different 
 subject from the last ; for persons who in law ai-e incapable of execu- 
 ting a conveyance, may receive a title when executed to them. As 
 a general rule, it is necessary that the grantee should accept, in 
 order to complete the conveyance ; but where a grant is plainly 
 beneficial to the grantee, his acceptance of it will be presumed in the 
 absence of any proof to the contrary. Frequently it is the case that 
 the delivery of the deed is made to some third person for the benefit 
 of the grantee, and that generally is sufficient. The acceptance is 
 presumed, and where there is a pure unqualified gift, the presump- 
 tion of acceptance can be rebutted only by proof of dissent. Where the 
 conveyance is incumbered with conditions and obligations, it may be 
 disaffirmed or repudiated at any time before acceptance. Deeds are fre- 
 quently executed to infants, married women, and others, who are incapa- 
 ble of executing a conveyance, and no question is, or generally can be 
 made, as to the validity of such grant.' But it must be remembered that 
 there must always be a grantee, — some person in esse capable of taking 
 the grant or conveyance. Therefore a grant to a person who does not 
 exist, or who is dead, or to some body of persons who were supposed 
 to be a corporation, when they were not, would be void, and convey no 
 title. 
 
 § 11. 4. Bequisites of a deed. The requisites of a good deed are many, 
 and may be divided into two classes : 1, those required by the statutes 
 regulating the execution of a deed, without which they are ineffectual, if 
 not void, as instruments of conveyance ; and 2, those which are merely 
 demanded by the usual forms ^nd common law principles which should 
 always be observed, though not like the first class indispensable, so that 
 the general principles and substance of the matter appear to be observed. 
 Many of the requirements of the statutes embrace and are founded upon 
 common law principles, but such are made more positive and indispen- 
 sable on account that they are now the declaration of the positive law. 
 This distinction is necessary, for while there is a distinction made be- 
 tween a legal conveyance and that which does not accomplish it, it was 
 necessary that the statute should point out in definite terms what were 
 those forms and requisites that should be potent enough to transfer the 
 title of lands and tenements from one person to another, and when those 
 forms and requisites were not observed, the title was not affected, and 
 
 1 Mitchell vs Kyan, 3 0. S. K. 877. See, also, 2 O. B. 266, and 5 O. S. E. 124. 
 
CHAP. VI.] TITLE BY THE ACTS OF THE PARTIES. 213 
 
 remained where it wa.s ; and thns persons were informed what were the 
 appropriate means by which a title might be conveyed or acquired. 
 
 § 1 2. The form and manner of executing such conveyance are prescribed 
 by our statute, which declares that anj^ instrument by which any land, 
 tenement, or hereditament shall be conveyed or incumbered, shall be 
 signed and sealed by the grantor or maker, and acknowledged in the 
 presence of two witnesses attesting the same, and subscribing their 
 names to such attestation. Such signing and sealing shall also be ac- 
 knowledged by the grantor or maker before a judge of the court, a jus- 
 tice of the peace, or some other officer specially authorized to take 
 acknowledgment of deeds,' who shall certify such acknowledgment on 
 the same sheet on which the instrument may be written or printed. 
 When such deed is executed by husband and wife, for the conveyance 
 or incumbrance of any interest she may have in the real property in- 
 tended to be so conveyed or incumbered, there must be in addition to 
 the execution required, and acknowledgment, a separate examination 
 of the wife apart from her husband, and the officer shall make known 
 to her the contents of the deed or instrument of writing; if she declare 
 herself to be still satisfied therewith, the officer shall certify such exam- 
 ination and declaration with the acknowledgment. Such is the special 
 care taken by our law to secure the proper execution of a deed and to 
 protect the interest of married women. 
 
 § 13. The deed may be almost in any form, so that it conforms with 
 the requisites of the statute above mentioned, which are: 1, it must be 
 an instrument of writing, signed and sealed by the makers ; so far it has 
 only the necessary constituents of any deed ; 2, it must be attested by 
 two witnesses, who should subscribe their names to it as such ; 3, it 
 must be acknowledged by the makers before some officer authorized to 
 take the acknowledgments of deeds ; and where one of the parties is a 
 married woman, in addition to her uniting with her husband in the 
 execution, there must be a separate examination of her apart from her 
 husband, and a full declaration and acknowledgment on her part that 
 she was satisfied therewith ; all of which acknowledgment must be 
 certified by the officer on the same paper ; 4, it must be delivered by 
 the parties executing it as their deed ; and 5, it should be recorded. 
 The want of any one of these requisites in the deed will render it either 
 void or voidable, and each requisite will now be considered. 
 
 § 14. 1. It must be a writing signed and sealed. In ancient times, a 
 feoffment might be made orally and by livery of seisin ; but our law 
 requires the conveyance should be in writing, and it must be signed 
 and sealed. All and any contract in relation to land or tenements, for 
 
 1 These officers are a judge of one of the courts of record, a justice of the peace, 
 notary public, mayor, or other presiding officer of any town or city. 
 
214 PRIVATE LAW. [book ii. 
 
 any estate or interest, either of freehold or terms for years, or any un- 
 certain interest, must be by deed or note in writing, signed by the party 
 or his agent, so authorized by writing.' This is so required by the 
 statute for the prevention of frauds and perjuries, independent of the 
 statute in relation to the execution of deeds. But for the conveyance 
 of any landed property, the transfer of the legal title in any estate, or 
 interest in any land or tenement, must not only be by a deed in writing, 
 but it must have all the other requisites required by the statute, or it 
 will fail to transfer the legal title. Should it fail to have all the requi- 
 sites to constitute a perfect conveyance, it may as a writing operate 
 as a written contract within the requirements of the statute of frauds, 
 and secure to the vendee a title or claim in equity, though it failed as a 
 deed to effect a legal conveyance.^ Our statute authorizes the seal to 
 be made with a scrawl of the pen. The seal is, therefore, in reality a 
 very unimportant matter so far as adding any security to the trans- 
 action, but is absolutely necessary in order to constitute a deed wilhin 
 the requirements of the law. 
 
 § 15. 2. It must be attested by two witnesses, who must subscribe 
 their names as such to the attestation.' The law undoubtedly intended 
 to give the security of two witnesses to the transaction besides the 
 acknowledgment before the magistrate, but it has become a common 
 practice for the magistrate to sign his name as one of the witnesses, as 
 well as being the officer who takes the acknowledgment. This practice 
 has now become too inveterate to call in question its propriety. A deed 
 with but one witness to it would fail to be a conveyance capable of 
 transferring the legal title. 
 
 § 16. 3. In order to secure an honest and deliberate action of the 
 party in so important a matter as the conveyance of the title to lands and 
 tenements, the law requires that the maker of it should appear before a 
 magistrate or some other officer authorized to take the acknowledgment 
 of deeds, and acknowledge that the instrument (thus signed and wit- 
 nessed) was his or her voluntary act or deed. But where a married 
 woman becomes a maker of a deed, it is necessary that both the hus- 
 band and wife should unite in same deed, for the purpose of either 
 releasing her right of dower which she might thereafter claim in the 
 property, or to convey or release any other estate or interest she had in 
 the property. It is usual, even in cases of dower, for the wife thus to 
 unite in the same deed with the husband as though thev were tenants 
 
 > "An Act for the prevention of frauds and perjuries," passed February 19, 
 1810. 
 
 2 See Equitable Title in tlie Index, pasfiim. 
 
 8 No deed is complete without such attestation, though under proper circum- 
 stances may be enforced in equity. Patterson vs. Peace, 5 O. E. 190. 
 
cffAP. VI.] TITLE BY THE ACTS OF THE PARTIES. 215 
 
 Iq common, and no legal objection appears against the practice ; but 
 sometimes persons prefer the practice to introduce a separate clause by 
 which the wife, for and in consideration of the premises, forever releases 
 and quits all claim and title by way of dower in the property. If there 
 was any other claim or interest in the property besides the inchoate 
 and future right of dower, it might be well to preserve it by such 
 separate clause of the release of dower. 
 
 § Vl. There is a great difference between the effect of a deed imper- 
 fectly executed by a married woman and that of the husband, or any 
 other person not a, feme covert. In most instances where a deed has 
 been executed, intended to transfer the title, but in consequence of 
 some mistake the parties have not observed the requisitions of the law, 
 in order to make it a perfect conveyance, still the imperfect deed would 
 have the effect of giving the party a title in equity, which a court of 
 equity would enforce, though it would not enable a party to recover 
 upon it in an action of ejectment as a perfect conveyance. But when- 
 ever there may be any one of these defects, which are thus considered 
 essential to the due execution of a deed, executed by a married woman, 
 the defect is utterly fatal ; for it is a well-established principle of our 
 law that a defect in the deed of husband and wife cannot be rectified, 
 even in a court of equity, so far as the/eme covert is concerned.' For 
 so far as married women are concerned, those M'ho deal with them 
 must rely upon their voluntary performance of those acts which are 
 requisite to the perfection of their contract, and a court of equity will 
 not assume to control or order a specific performance of it, as they 
 would in any such case of a person who was not under any disability. 
 In the certificate of the acknowledgment by the officer, it is sufficient 
 that it shows a substantial compliance with the law; but it must be 
 inserted on the same sheet of paper with the deed itself.^ 
 
 § 18. 4. The deed must be delivered by the grantor to the grantee. 
 This is a very simple act, and, as defined by the common law, easily 
 understood ; but when accompanied with the complicated circumstances 
 afforded by modern cases, it frequently becomes a doubtful transaction. 
 For the delivery may be presumed or inferred from the circumstances 
 of the transaction, as well as by those positive acts which the law 
 originally contemplated as the delivery. The delivery is necessary, 
 and so required for the double purpose of manifesting the assent of the 
 grantor, and the acceptance of the grantee, — for it is necessary that the 
 consent and deliberate action of both parties should concur, in order to 
 constitute what it really is, a contract. But both the delivery and the 
 
 1 Carr M.'Williiims, 10 0. K. 309; 6 Wend. E. 9 ; 5 Conn. E. 492. 
 - » Barton vs. Morris, 15 0. R. 408; Winkler vs. Higgins, 9 0. S. K. 599 ; Bald- 
 win vs. Snowden, 11 0. S. li. 203. 
 
216 PBIVATE LAW. [book ii. 
 
 acceptance have been frequently presumed or inferred from the facts 
 attending it, without there being positive evidence of either. A de- 
 livery of a deed may be to a stranger for the use and benefit of the 
 grantee, and no precise words or declaration is necessary for this pur- 
 pose ; for anything that shows the intention and purpose of the parties 
 is sufficient. But there must be a finding, in contemplation of law, of 
 the actual passing of the deed from the possession of the grantor to the 
 grantee, if but for a moment of time ; for if it never has been out of the 
 possession of the grantor it is difficult to presume a delivery. 
 
 § 19. The cases are numerous where, from complicated circumstances, 
 the courts have inferred or presumed the delivery on the one hand, and 
 the acceptance on the other. The possession of the deed by the grantee, 
 or some one for his benefit, would he prima facie evidence of the de- 
 livery and acceptance; but this may be rebutted by proof, which must 
 be more or less strong, dependent upon countervailing circumstances. 
 Thus, the record of a deed is of itself prima facie evidence of its delivery; 
 but where a person, after the execution of a deed, delivers it to the 
 recorder, with unqualified instructions to record it, the reasonable pre- 
 sumption, in the absence of any rebutting circumstance, is that he 
 means to part with his title ; but the fact of his possession of the deed, 
 after such delivery and record, may be a very pregnant circumstance to 
 show that that delivery was not absolute. But such possession of a 
 recorded deed is entitled to much less consideration than if it had not 
 been recorded. In such a case clear proof ought to be made to warrant 
 a court in holding that a man, after such execution, acknowledgment, and 
 record, at his own instance, did not mean thereby to part with his title. ' 
 The acceptance by the grantee will also be usually inferred, and where 
 it is plainly beneficial to his interest, his acceptance of it will be pre- 
 sumed in the absence of proof to the contrary. 
 
 § 20. The actual delivery of the deed may be accomplished by the 
 party himself, by any act that may manifest that intention, or by his 
 agent, whom he has appointed for that purpose, and a delivery to a 
 third person, for the purpose of being delivered to the grantee, is a 
 sufficient authority. If the delivery to a third person is unconditional, 
 it is sufficient, though the actual possession never comes to the grantee. 
 Such delivery to a third person maybe either absolute or on condition — 
 to be held by such third person until some condition be performed on 
 the part of the grantee ; in which case it is not to be delivered as a 
 deed, but as an escrow ; that is, as a scrovvl or writing, which is not 
 to take effect as a deed until the condition be performed, and then it 
 
 1 Miehal vs. Eyan, 8 0. S. E. 377; Steel vs. Lowrj',' 4 0. K. 72; Shirley vs. 
 Ayres, 14 0. E. 307 ; Kemp vs. Walker, 16 O. E. 118. A delivery to the re- 
 corder is sutficient, and need not to be delivered or recorded again. 
 
CHAP. vi.J TITLE BY THE ACTS OF THE PARTIES. 217 
 
 becomes a perfect deed/ and takes effect from the first or second delivery, 
 as may best subserve the equity of the case. For this purpose the third 
 person may be the agent of both parties or either ; for the acceptance 
 of the agency of both parties need not involve any violation of duty to 
 either ; and the mere delivery of the manual possession of the deed is 
 not necessarily a delivery of the deed until the condition be performed. 
 In this case he is the mere agent to hold the deed as an escrow, and 
 return it in case of the non-performance of the stipulated condition ; and 
 if improperly delivered to the grantee, without such performance, there 
 would be no title acquired by the grantee by such delivery. But such 
 conditional, delivery as an escrow^ cannot be made to the grantee him- 
 self; the deed by such delivery becomes a perfect deed, though on the 
 account of the agreement there may be some claim in equity between 
 the parties themselves. 
 
 § 21. 5. The deed should be recorded. The statute provides, that 
 unless the deed be recorded within six months of the time of its execu- 
 tion, it shall be deemed fraudulent against subsequent bona fide pur- 
 chasers without notice. The object of the law, in establishing the 
 office of a recorder in each county, and requiring the deeds thus to be 
 recorded, was to give notoriety to the conveyance and charge subse- 
 quent purchasers with notice. But if such subsequent purchaser be 
 chargeable with notice, it is the same as to him whether the prior deed 
 be recorded or not. By the execution of the deed according to the 
 forms of law, the title becomes vested in the grantee whether the deed 
 is recorded or not, and is good against all the world, except subsequent 
 purchasers without notice.' 
 
 § 22. The law makes a noted distinction between deeds that are ab- 
 solute conveyances and those that are mortgages, or conditional con- 
 veyances to secure the payment of money or the performance of some 
 other act. The law makes the recording of the mortgage its execution, 
 and until it is delivered to the recorder for record it is not considered 
 as existing, and no notice to third persons. He who has his mortgage 
 first delivered for record to the recorder holds his claim, without refer- 
 ence to any notice he may have received of proceedings for the execu- 
 tion of other mortgages. Between the parties themselves there may be 
 an equitable mortgage and prior claims ; but as to others, their legal 
 rights cannot be displaced at the instance of the holder of a prior 
 unrecorded mortgage, although he may have full notice of the prior 
 circumstances ; the object of the law being to avoid all vexed ques- 
 
 1 1 Stephens's Com. 459. 
 
 2 Cincinnati E. B. Co. vs. Iliff, 13 0. S. K. 235; Ogden vs. Ogden, 4 0. S. E. 
 182; Lloyd vs. Giddings, 7 0. R. pt. 2d, 50. 
 sirvin vs. Smith, 17 0. K. 226; 11 0. S. K. 71. 
 
218 PRIVATE LAW. [book ii. 
 
 tions of notice, actual or constructive, in determining the priorities of 
 liens.' 
 
 § 23. The statute against the selling and conveying of false titles 
 gives somes security to purchasers of real property against being im- 
 posed upon by a bad title. But the offices of the county (at the county 
 seat) will afford the necessary means to establish the title, whether good 
 or bad. In making this examination the purchaser should (1) examine 
 the recorder's records, and see how the title stands there — what convey- 
 ances and mortgage liens have been placed upon the property. The 
 indexes there kept will aid him in his examination. It has been held 
 by our courts that the registry of a deed, the grantor and grantee in 
 which are both out of the chain of title as recorded, is no notice to a 
 subsequent purchaser ; and if the instrument be not such as the law au- 
 thorizes to be recorded, the recording of it is a nullity. But the pur- 
 chaser is chargeable with notice of facts recited in the deed through 
 which he traces his title ; and this principle applies to recitals in patents 
 from the United States. (2) He should next examine the records of 
 courts in the clerk's office, and ascertain what liens or matters, Zis pen- 
 dent:, are there to be found against the property. (3) The sheriff's docket 
 may show an execution and levy of a judgment of some other county, 
 and that should be examined. (4) The office of the probate court 
 should also be examined to see what wills or devises there may be on 
 record pending on the property. Also ascertain what records there 
 may be found of the sale of the same property by proceedings and order 
 of the court at the instances of some administrator or executor or guar- 
 dian of some person who may be legally connected with the title. (5) 
 The auditor's office should be examined to see if the taxes have been 
 paid, or to ascertain if the property has not been already sold for the 
 non-payment of taxes. And lastly (6), the premises itself should be ex- 
 amined, for if there be any person in possession, it Is apprehended that 
 it is a constructive notice as to whatever title or interest he has in the 
 property ; for the rule is that possession of land is notice of every title 
 under which the occupant claims it, unless he has put on record a title 
 inconsistent with such possession or claim." 
 
 § 24. The title may be still subject to further inquiry. A deed may 
 be recorded within the six months allowed it for record that may be 
 superior to the title investigated. When the title is dependent upon 
 recent inheritance, adverse claims arising from wills, and the claims of 
 
 'Bloom vs. Noggle, 4 0. S. K. 45 ; Lake vs. Doiid, 10 0. E. 415 ; HoUiday vs. 
 P. B. of Columbus, 16 O. 11. 633 ; Sidle vs. Maxwell, 4 0. S. E. 236. 
 
 2.5 Watts and Serg. R. 427; see Jaques vs. Weeks, 7 Watts's E. 261. There is 
 apparently a case against this. Northrop vs. Brehmer, 8 0. R. 392. But if the 
 case goes that far it is apprehended not to bo the law. 
 
CHAP. Ti] TITLE BY THE ACTS OF THE PARTIES. 219 
 
 executors and administrators to pay the debts of recent owners, should 
 be strictly guarded against. The title should be connected by a regu- 
 lar chain of title, from the grantee or patentee of the government or 
 original proprietor to the present vendor. But in some instances the 
 long possession of the vendor and those under whom he claims, under 
 a claim of title not disputed, may be relied upon as the foundation of 
 the title. Our statute of limitation as to lands and tenements is twenty- 
 one years, with exceptions in favor of infants, feme coverts, and others; 
 and where possession is relied upon for a title, sufficient time should be 
 allowed to elapse to guard against such exceptions. But long possession, 
 accomjianied by an undisputed claim of title for a long period of time, 
 say from thirty to sixty years, may generally be relied upon for title, and 
 the court will often, in favor of such long possession and claim of title, 
 presume a patent or other conveyance in support of it.' Where a person 
 has purchased with ordinary prudence, in good faith, and without notice 
 either actual or constructive, there will be a leaning to protect him, and 
 he is entitled to all the want of notice in his vendor, though he himself 
 is subject to such notice. But these matters are ofteoer subject of de- 
 fense against the equitable title of others than against the legal title. 
 
 II. USUAL FOEM AND COMMON LAW EEQUISITES OF A DEED. 
 
 § 25. There is no absolute form required for a deed of conveyance. 
 Almost anything, in writing and printing, that complies with the re- 
 quirements of the statute, as already stated, and will express the object 
 and intention of the parties, will answer the purpose, The objects to be 
 attained by a deed are so multifarious that the variety of deeds are nu- 
 merous. A deed may be intended to convey any one of the various estates 
 a person may have in lands and tenements, — an estate in fee-simple or 
 in tail, a freehold, or a term for years. It may be a simple conveyance, 
 with or without covenants, or may assume a variety of stipulations, 
 covenants, and conditions. It may be what, in common parlance, is 
 called a warranty deed, or a deed without covenants, — a release or 
 quit claim, — a conditional deed or mortgage. But whatever may be its 
 form or object, in order that it may be a legal conveyance, or operate 
 as a legal transfer of any estate, title, or interest in lands and tene- 
 ments, it must conform to, and possess all the requirements of, the stat- 
 utes in relation to the execution and record of deeds, as already stated, 
 or it wiil not amount to a legal conveyance, and at most will only secure 
 an equitable interest, unless it be a mere lease for three years or less. 
 
 § 26. Conveyances in Ohio are not embarrassed by any of the old 
 English statutes in relation to this subject, as the statute of unes, or 
 
 * Blerce va. Pierce, 15 O. E. 529. 
 
220 PBIVATE LAW.' [book ii. 
 
 statute de donis ; nor by the coraraon law conveyances, as feoffment, 
 lease and release, or conveyances in trust, founded upon the statute of 
 uses; but are usually the simplest forms, founded upon common law- 
 principles of a deed, and that made to conform to the statute in its exe- 
 cution. Where the object of the deed is merely to convey the title, it 
 is sufficient that it be executed by the grantor; but when there are 
 stipulations on both sides, it should be a deed inter paries, and should 
 be signed and sealed and executed by both parties, for it is very ques- 
 tionable if covenant lies against the grantee unless he has signed and 
 sealed the deed.' 
 
 § 27. A deed that is sufficient in Ohio, and, indeed, in almost any 
 State in the Union, is very simple in its form, and by its own act trans- 
 fers the intended title of the grantor to the grantee, giving him seisin 
 in law without livery of seisin. It is probable that the following form 
 of a deed of conveyance would be sufficient : I, A B, in consideration 
 of one dollar to me paid by C D, do bargain, sell, and convey to said 
 C D, his heirs and assigns, the lot of land (here described), and the 
 said A B covenants to and with C D and his heirs and assigns, to warrant 
 and defend the title. Witness my hand and seal. From which it may 
 be inferred that the essential or important parts of a deed of conveyance 
 are — 1, the caption containing the names and designation of the par- 
 ties ; 2, the consideration or the inducement for which the land was sold ; 
 
 3, the premises and description of the property intended to be conveyed ; 
 
 4, the habendum which is intended to express the quantity of interest 
 intended to be conveyed ; 5, the part containing the conditions, reser- 
 vations, and covenants, if any are intended or required ; and lastly, 6, 
 the conclusion or testatum clause. Each of these shall be considered 
 separately. 
 
 § 28. 1. The only importance attached to the caption of the deed is 
 to state the names of the parties to it, as the grantor and grantee, and 
 this is done in various forms of commencements, to suit the tastes or 
 notions of the draftsman. As to the parties to a deed, it has already 
 been stated who may or can be either the grantor or grantee in a deed, 
 and who cannot, which for the present must suffice. 
 
 § 29. 2. The consideration, always in some shape inserted in the 
 deed, is not an indispensable part of the deed, for all contracts under 
 seal imply a consideration, and have a binding effect, without any special 
 consideration. It has sometimes been thought that a consideration in 
 a deed was necessary to bar a resulting trust in favor of the grantor, 
 or to prevent its being void as to subsequent purchasers and creditors. 
 But for the purpose of making the deed an absolute conveyance, any 
 pecuniary consideration is sufficient, as one dollar, — so are love and affec- 
 
 1 SfiB Williams's Real Pro. 125, and n. 1. 
 
CHAP. Ti.] TITLE BY THE ACTS OF THE PARTIES. 221 
 
 tion. But the sufiSciency of the consideration maybe called in question 
 by the creditors of the grantor when the deed was executed upon an in- 
 adequate consideration by a grantor in failing circumstances. When 
 necessary, the true consideration may always be proved when not incon- 
 sistent with that stated. It should not be founded upon an illegal con- 
 sideration ; but when fully executed, though upon such illegal consider- 
 ation, courts will not interfere with the conveyance, but leave the parties 
 where they have placed themselves, and treat the conveyance as having 
 been completed by the act of the parties themselves. It is sometimes 
 important that the true consideration should be mentioned in the deed ; 
 for there may be a question raised as to whether it has been paid or 
 not ; or in case there be a failure of title, and an action is brought on 
 the covenants. The want of consideration can scarcely be put in ques- 
 tion between the parties themselves ; it is only when it becomes neces- 
 sary to protect the rights of others that the question may be raised by 
 third persons. 
 
 § 30. 3. The premises or description of the property intended to be 
 conveyed is as important a matter as any portion of the deed. The 
 word premises is most frequently used as designating this description, 
 or the property itself embraced in the description ; sometimes it is used 
 to designate all that part of the deed which precedes the habendum, and 
 of course includes the description, and from which, without doubt, the 
 other use of the word was derived. But now, in the language of the 
 law, the word is more frequently used to designate the property con- 
 yeyed, as the premises. There is no law requiring the property con- 
 veyed to be described in any particular mode or manner. But it must 
 contain some description by which it can be found and distinguished 
 from other landed property. It is usual to state the county, township, 
 range, and section in which it is found, and its particular boundary. 
 This is well, but not absolutely necessary. Any description by which it 
 can be found and distinguished, will be sufficient. Within such boun- 
 dary or designation it will include all that is above or below the surface. 
 All that pertains to the lot or tract of land or premises as a part of the 
 realty, either as water on the earth or minerals in earth, passes by the 
 conveyance of the land included within the description. 
 
 § 31. It is usual for the description to include within itself whatever 
 is necessary to identify the premises. But this is not absolutely requi- 
 site, for a reference to other ascertainable and certain facts and things 
 will answer, for the rule is, id certum est quod certum reddi potest ;^ as 
 the farm known by the name of Redfield, now in the possession of A B, 
 or described in a deed from A B to W T, recorded in vol. 15, page 
 250, of the records of the county. But the conveyance may be void for 
 
 1 Broom's Max. 556-60. 
 
222 PBIVA TE LA W. [book ii. 
 
 such uncertainty as cannot be reduced to a certainty. And the rule 
 here is, that evidence will be admitted to identify and ascertain object 
 and facts referred to in the deed, but not to add to the description or 
 meaning of the parties, upon the same principles that evidence is ad- 
 mitted or rejected in cases of patent or latent ambiguity elsewhere 
 explained. 
 
 § 32. In regard to the description the rule is, that known and fixed 
 monuments control courses and distances ; and the fixed boundary will 
 control though varient from the quantity called for in the deed. If the 
 deed contains that which will render the intention and meaning of the 
 parties certain, that will not be destroyed or vitiated by that which is a 
 surplusage, or which is uncertain or false ; for the rule is, faha demon- 
 stratio non nocet, when the thing itself is sufiSciently described, as in the 
 instance of the farm A, now in the occupancy of B ; the farm is correctly 
 designated, but if it should appearthat it wasin the occupancy of another 
 instead of B, that error would not vitiate the grant.^ But the descrip- 
 tion must be sufSciently certain to ascertain what particular land or prop- 
 erty was meant to be conveyed, or the grant would be void ; as a deed of 
 100 acres in a tract containing 400 acres,^ for no one can tell where it is to 
 be located. But a deed for that quantity in one of the corners, or in one 
 of the ends or sides, would be valid ; for that could be ascertained for 
 a certainty by a surveyor. 
 
 § 33. 4. The habendum is usually a mere formal part of the deed, 
 but it may be a very important part of it. Wherever the common law 
 prevails, it is a general principle, that a conveyance to a person, with- 
 out words of perpetuity, i.e. to him and his heirs, would only convey 
 a life estate. Generally in deeds, after the name of the grantee, are in- 
 serted the words "his heirs and assigns;" and this fully supersedes the 
 necessity of the habendum. But in the usual approved forms words of 
 .perpetuity and limitations are reserved for this part of a formal convey- 
 ance, which commences : To have and to hold unto the said A B, his 
 heirs and assigns forever, to and for his own use, etc., or for life or term 
 of years, or for some different use or trust, or upon some terms or con- 
 dition agreed upon by the parties. But it is said that this part of a 
 formal deed cannot perform the office of divesting an estate already 
 vested by the previous part of the deed, for it is void if it be repugnant 
 to the estate granted.' 
 
 § 34. 5. The covenants and stipulations of the parties usually come 
 in next. These covenants in an absolute conveyance may consist of — 
 
 ' 4 Kent's Com. 455. 
 
 s Throckmorton vs. Moon, 10 O. K. 42; Eggleston vs. Bradford, 10 O. R. 312. 
 » 4 Kent's Com. 456 ; King vs. King, 12 O. K. 390. See Judge Lane's opinion 
 as to a grant being repugnant to a previous grant, in King vs. King. 
 
CHAP. VI.] TITLE BY THE ACTS OF TEE PASTIES. 223 
 
 1, that the grantor is lawfully seised ; 2, that he has good right to convey, 
 3, that the land is free from incumbrance ; 4, that the grantee shall quietly 
 enjoy ; and 5, that the grantor will warrant and defend the title against 
 all lawful claims. These covenants are intended to afford a secu-rity to 
 the purchaser, his heirs or assigns, against a failure in the title, which 
 may be enforced by an action at law, whenever a breach of the covenant 
 has actually occurred. 
 
 § 3.5. The principles of law dependent upon these covenants in a 
 deed for land are frequently technical and abstruse, but all founded 
 upon principles of justice and sound logic. Ordinarily the covenants 
 that a person enters into are personal matters, affecting only them- 
 selves and their personal representatives. But covenants in a deed, 
 which are intended for the benefit of the land, the law annexes to the 
 land, and they pass with it for the benefit of those who might there- 
 after become owners of the title, and interested in such covenants. 
 These covenants are therefore divided into two classes: those that are 
 permnal covenants, and those that are covenants that run with the land. 
 Of the latter class are those that are not intended for immediate accom- 
 plishment, but for the benefit and protection of the estate in the future. 
 Therefore the law considers such covenants to run with the land ; and 
 whoever becomes invested with the title is considered to be an assignee of 
 the grantee, and entitled to sustain an action on such covenant against 
 the grantor whenever a breach actually occur. There may be such mutual 
 covenants between both parties to the deed, as in cases of a lease, and any 
 covenant to do any act on the premises, as to build a wall, is binding 
 upon the assignee. But covenants to do such acts not in the deed are 
 only personal covenants, do not run with the land, and are not bind- 
 ing upon the assignee, nor will they inure to their benefit.' 
 
 § 36. The first two covenants above mentioned, that of seisin and right 
 to convey, have usually been considered personal covenants, broken as 
 soon as made, in case they were not true, and therefore immediately 
 become a chose in action, and belonged to the grantee and his personal 
 representatives, and do not pass with the land to subsequent purchasers 
 as assignees. But our courts have decided that a seisin in fact of the 
 grantor, at .the time the deed is executed, is a sufficient compliance with 
 the covenants of seisin in the deed. If he be in possession, under color 
 of title, claiming a fee, the covenant of seisin is a real covenant annexed 
 to the land, and passes with it to the heirs or assignees until they are 
 evicted. The covenants of quiet enjoyment and warranty are more 
 decidedly real covenants. But on any covenant broken by the non- 
 payment of incumbrances, such incumbrance must be first paid by 
 the grantee or his assigns before action brought, or nothing but nominal 
 
 » See Williams on Keal Pro. 331. 
 
224 PRIVA TE LA W. [book ii- 
 
 damages would be recovered. On the covenant of warranty an action 
 cannot be sustained while the grantee remains in possession.^ In order 
 to maintain the action, the plaintiff must aver and prove an eviction, for 
 otherwise he might be recovering damages where he would never be 
 really injured. Where he has been evicted and loses his title, the 
 rule of damages is the consideration paid for the land, without interest 
 for the time that he enjoyed the use and possession, without being 
 respotisible to others for them. The use and profits of the laud went 
 against the interest, and for the value of the improvements made the 
 vendee must look for pay to him who recovers in ejectment under the 
 occupying claimant law. These rules furnish the most equal justice 
 between the vendor and the vendee, in cases where the parties have 
 been acting in good faith ; but if there has been fraud or bad faith, the 
 parties may be liable under other rules. 
 
 III. TITLE BY DEVISE. 
 
 §3T. Title by devise is that title which one person confers upon 
 another by his last will and testament. The requisites of a will are the 
 same for both real and personal property, except that, as to personal 
 property, our statute confers the power, under limited circumstances, to 
 make a nuncupative will. Those general requisites of a will are treated 
 of elsewhere ; but it may be said, in general terms, that a will, in order 
 to create a devise and confer an interest or title in any lands or tene- 
 ments, must be'' in writing, signed, published, and declared by the party 
 to be his will, and so attested by two witnesses, who, at the testator's 
 request, in his presence, and in the presence of each other, signed their 
 names thereto as witnesses. After the death of the testator, the will 
 must be proved in the probate court; and if the court find that the 
 will was duly executed and attested, and that the testator, at the time 
 of executing the same, was of full age, and of sound mind and memory, 
 and not under restraint, the will is admitted to probate, and ordered to 
 be recorded. If the will is not further contested by some appellate 
 proceedings, the will stands as to any devise it contains, transferring 
 any right or interest in real estate that the testator had from him to 
 the devisee. The will should be first proved, and admitted to probate, 
 where the testator last had his domicile, and an authenticated copy of 
 the record may be taken and admitted to record in any county where 
 the property devised may be situate. 
 
 § 38. The same interest in lands and tenements may be the subject 
 of a devise which may be that of an alienation by deed. Equity is more 
 indulgent in aiding the transfer of a contingent interest or a mere equity 
 
 1 Kin^ vs. Kerr, 5 0. R. 154; S 0. K. 211. 
 
CHAP. Ti.] TITLE BY THE ACTS OF THE PABTIES. 225 
 
 by a devise than by a deed. The same persons, also, who are able to 
 execute a conveyance are able to make a will ; and by the laws of 
 Ohio, a married woman is as able to make a will as a feme sole. The 
 rule is, that all persons of full age and of sound mind and memory, 
 and not acting under restraint, are capable of making their wills. The 
 objection to a will may be the converse of this rule, and that the will 
 was procured by fraud, duress, or undue means. And again, the same 
 rules as to the capacity of a person to take by a conveyance, apply also 
 as to the ability of a person to take any estate by a devise. Any person 
 who may be a grantee, may under the same circumstances be a devisee, 
 with this important addition, that husbands and wives are capable to 
 devise to each other; and this important difference in the law between 
 the capacity of husband and wife to make a conveyance to each other 
 by means of a deed, and that of a devise by a will, is put upon the fact 
 that the will does not take effect until the death of the testator, when 
 they cease to be husband and wife. 
 
 § 39. Thus it will be seen that most of the rules and principles of 
 law applicable to the execution and power of a deed are also applicable 
 to a devise ; and when executed, the devise is suVjject in a great measure 
 to the same rules of construction and interpretation as apply to a con- 
 veyance by deed. In many respects our statutes have greatly facili- 
 tated the transfer of property by devise when compared with the com- 
 mon law. The subject will now be considered in relation to : — 1, those 
 statutory principles introduced into the law in aid of devises; and 2, 
 those common law principles still affecting their operation and interpre- 
 tation concurrent with the statute. 
 
 § 40. 1. The regulations and principles introduced by statute in rela- 
 tion to wills and devises are numerous and important, and in some 
 instances relieve them of the technicality and difficulty of the common 
 law.' These may be delineated and enumerated thus: 1. No will shall 
 be effectual to pass real estate until it has been admitted to probate 
 and recorded in the county. A will made in a sister State, and there 
 admitted to probate and record, must be admitted to record in Ohio 
 before the title to land is complete in the devisee; but when so regis- 
 tered here, it operates from the death of the testator, and will defeat a 
 conveyance made in the mean time by the heir.'' 
 
 § 41. 2. At common law, a devise was looked upon very much as a 
 species of conveyance, and many of its rules were the same ; though 
 where the intention of the testator was clearly made known, that 
 
 ' See the statute regulating wills, passed May 3, 1852. Many of the changes 
 introduced by statute are the same as have been adopted in some of the States, 
 and in England by recent enactments. 
 
 2 Wilson vs. Tappan, 6 0. E. 172 ; Hall vs. Ashley, 9 O. E. 96. See also 8 0. 
 E. 1 and 239. 
 
 15 
 
226 PRIVATE LAW. [book ii, 
 
 always governed as a polar star in its interpretation, still, where such 
 intention was not so decided, the rules of common law conveyance 
 applied ; and, therefore, words of perpetuity and limitations were re- 
 quired in a devise as in a conveyance, unless there was manifested by 
 the testator an intention to the contrary. Therefore, in case of a devise 
 to one without the words " and heirs," or some equivalent words expres- 
 sive of an intention to pass the whole estate, the devisee would take only 
 a life estate, leaving an estate in reversion.^ So, too, the rule in Shelley's 
 case was applied, which in many instances gave the devisee a fee when 
 there were some reasons to apprehend that the testator intended only 
 a life estate to the devisee, and the fee to the heir. 
 
 § 42. To obviate these rules of inheritance and of limitations, our 
 statute has enacted, that every devise of lands or tenements shall be 
 construed to convey all the estate of the devisor therein, unless it 
 clearly appear that the devisor intended to convey a less estate. This 
 entirely reversed the previous rule as to the necessity of using the 
 words " and heirs." And, in the like manner, to obviate the rule in 
 Shelley's case, it is enacted, that when a devise is given to a person 
 for life, and after his death to his heirs in fee, or words to that effect, 
 the conveyance shall be construed to vest an estate for life only in the 
 first taker, and a remainder in fee-simple in his heirs.^ 
 
 § 43. 3. Any disposition made by a testator could not take effect, and 
 was not so intended, until after his death. It then frequently became 
 a question whether in the description of the property devised, or of the 
 person in whose favor the devise was made, the testator should be con- 
 sidered as referring to the state of things which existed when he exe- 
 cuted the will, or to that which might exist at the time of his death. 
 At common law the rule was established, that as to bequest of personal 
 property, the will spoke as of the time of death, but in devise of the 
 realty, the will was held to speak as at the time of its execution. This 
 last rule in cases of devises compelled the ascertainment of what 
 changes had in the mean time been wrought in the description and title 
 of the property, or in the person to whom it was devised. If the prop- 
 erty devised had been in the intermediate time sold or exchanged for 
 otlfer property, the devise was said to be adempted and lost to the de- 
 visee. If in the mean time one of the objects of his bounty died, the 
 devise to such person was said to be lapsed by his death, and he and 
 his heirs took nothing by the will, and the subject-matter of the devise 
 remained undisposed of so far as that devise was concerned. The rule 
 also excluded real property afterward acquired from the operations of 
 the will. This rule was sometimes attended with peculiar hardship ; 
 for if there were a devise to A and the heirs of his body, and he died 
 
 1 1 Stephens's Com. 557. = See statute of May 3, 1852, g 53 and 55. 
 
CHAP. VI.] TITLE BY THE ACTS OF THE PARTIES. 227 
 
 before the testator, the gift was void by the death of the doDee, even 
 though he left issue,— children for whom, as well as the donee, it was 
 manifest the testator intended his bounty. 
 
 § 44. To obviate such disappointments caused by the change of prop- 
 erty, or decease of the donee between the execution of the will and the 
 death of the testator, the statute provides, that where a devise is made 
 to any child or relative of the testator, in case such child or relative 
 should die, leaving issue surviving the testator, the issue shall take the 
 devise in the same manner as the devisee would if he had survived the 
 testator, unless a different disposition shall be made or required by the 
 will. It should be noted here that this provision is made only in 
 favor of a child or relative of the testator. As to other persons, except 
 such relatives, the statute leaves the devise to lapse as at common law. 
 To prevent, also, any disappointment from the rule as to subsequently 
 acquired property, the statute further provides, that any estate or in- 
 terest acquired by the testator after making the will, shall pass thereby, 
 as though the testator held the same at the time of making the will, 
 if such clearly appear by the will to be the intention of the testator.^ 
 
 § 45. 4. It is a well-established principle, and it is sound law, that 
 wherever there is a power or authority given as a private act, the 
 authority must be strictly pursued, or the performance of it will be 
 void. If it is given to be performed in a particular manner, it cannot 
 be performed in any other. If it is given to a number of persons, a 
 part of them cannot perform the act,'' unless it be especially provided 
 for ; thus, if the testator by his will direct his executors by name to 
 sell, and one of them dies or refuses to act, the others could not sell, 
 because the authority given could not be satisfied. To obviate some of 
 the difficulties in such case, the statute has provided that where, by the 
 will, any authority is given to the executors or trustees to sell, and 
 some die or refuse to act, the others may act and perform the power or 
 trust; and where all refuse to act or have died, then the administrator 
 with the will annexed may perform such power and duty. Courts are 
 also authorized to appoint trustees instead of those who refuse to act 
 or have died.' 
 
 § 46. 5. In all countries, certain unexpected events have been con- 
 sidered as effecting an implied revocation of the will, as the return of a 
 son reported to have been dead, or the birth of a child, or marriage, or 
 
 1 Statute of May 3, 1852, § 54 and 56. See lessee of Reynolds vs. Shirley, 7 
 O. R. pt. 2d, 39; lessees of Smith vs. Jones, 4 O. R. 115. See also Pruden vs. 
 Pruden, 14 O. S. R. 251. Lands acquired after making a will which disposed of 
 all of the testator's property, will pass under its provisions. 
 
 2 Williams's Real Property, 247 ; 4 Kent's Com. 319. 
 sStat. May 3, 1852, §65-71. 
 
228 PRIVATE LAW. [book if. 
 
 disposition of the property in some other manner than the one devised. 
 Our statute in some of such eases regulates, controls, or modifies such 
 implied revocation. It provides, 1, that a bond or agreement made by 
 the testator to convey any property devised, shall not be deemed a 
 revocation of such devise either in law or equity; but such property 
 shall pass by the devise, subject to the right of specific performance 
 upon the agreement against the devisee, as might be had against the 
 heirs of the testator; 2, a charge or incumbrance upon any estate for 
 the purpose of securing the payment of money, or the performance of 
 ii, covenant, shall not be deemed a revocation of any will relating to the 
 same estate previously executed ; but the devise shall pass subject to 
 such incumbrance ; 3, a conveyance, settlement, or any act of the testator, 
 by which his estate in property previously devised shall be altered, but 
 not wholly divested, shall not be deemed a revocation of the devise, but 
 it shall pass to the devisee the actual estate or interest of the testator 
 which would otherwise descend to his heirs, unless in the instrument 
 by which such alteration is made the intention is declared that it shall 
 operate as a revocation of such previous devise ; but if such alteration 
 is wholly inconsistent with the devise, it shall operate as a revocation 
 thereof, unless the alteration depend on a condition or contingency 
 which is not performed or does not happen ; 4, a will executed by an 
 unmarried woman shall not be deemed revoked by her subsequent 
 marriage; 5, if the testator had no children at the time of executing his 
 will, but shall afterward have a child living, or born alive after his 
 death, the will shall be deemed revoked, unless such child shall have 
 been provided for in the will, or so mentioned therein as to show an 
 intention not to make such provision ; and no other evidence to rebut 
 the presumption or revocation can be received ; 6, there is also a pro- 
 vision in favor of an absent child supposed to be dead, or one subse- 
 quently born and not provided for in the will, that the devisees and 
 legatees shall contribute proportionally to raise for such child what it 
 would be entitled to in case the testator died intestate ; and ample pro- 
 vision is made to make such portionment just and equitable ; 7, and 
 lastly, the statute directs what shall be a positive revocation, which 
 shall be by the testator's canceling or destroying the will, or b}^ the 
 execution of another will or codicil, or some instrument in writing exe- 
 cuted in the same manner as a will; but nothing thereiu contained 
 shall prevent the revocation in:}plied by law from subsequent changes 
 in the condition or circumstances of the testator. 
 
 § 41. Many of the common law principles governing a will and 
 devise have been necessarily considered when stating the statutory pro- 
 visions in relation to them ; and the subject of wills and administration 
 of personal property must be referred to for many of the principles 
 governing wills ; still, there are some more especially applicable to de- 
 
CHAP. VI.] TITLE BY THE ACTS OF THE PARTIES. 229 
 
 vises that will here be considered. In the construction of devises, 
 there is little or no difference in the rules from those that prevail in 
 sonveyances, except more liberality in seeking the meaning: and inten- 
 tion of the testator.' And in this respect, even an estate may be created 
 by implication, as where a man devises lands to his heirs at law, after 
 the death of his wife. Here, though no estate is given to the wife by 
 express terras, yet she shall have an estate for life by implication ; for 
 the intent of the testator is clearly to postpone the heirs until after her 
 death, and it would be difficult to tell who should take it if she did not. 
 So also, where a devise is of Blackacre to A, and of Whiteacre to B in 
 tail, and if both die without issue, then to C in fee. Here A and B 
 have cross remainders by implication, and on the failure of cither's 
 issue, the other or his issue shall have the whole, and C's remainder 
 over shall be postponed till the issue of both shall fail. But such im- 
 plications are only allowed where necessary and naturally consistent 
 with the apparent intention of the testator, and allowed in a will where 
 they would not be in a grant or conveyance.^ 
 
 § 48. The intention of the testator must govern, if it be not unlawful 
 or inconsistent with the rules of law. The control over intention, by 
 the rules of law, applies not to the construction of words, but the nature 
 of the estate. A testator may use such words as he pleases to convey 
 his intention ; and such intention, if clearly manifested, will be carried 
 into effect, if it be not unlawful, and does not create an estate forbidden 
 by law.' In construing a will, the whole must be taken together, and 
 Buch construction put on it as will be the most consistent with the whole 
 and evident intention of the party. So must a will and codicil be taken 
 together, and such construction put upon them as will be the most con- 
 sistent with the whole and the intention.' 
 
 § 49. Wills must be first proved and admitted to record where the 
 testator at the time of his death had his domicile, and the laws of the 
 country of the domicile govern as to the distribution and succession of 
 personal property ; but it is entirely different as to the realty. That 
 must be regulated and governed by the laws of the country where the 
 
 • A testator has a right to dispose of his property as he pleases, and courts ■will 
 endeavor to carry out his intention ; but he must comply with the law. He can- 
 not, by declaring that he disinherits such an heir, prevent the inheritance as to 
 any property not disposed of. Crane vs. Doty, 1 0. S. R. 279. 
 
 2 1 Stephens's Com. 556. See lessees of Lawrence vs. McArthur, 10 0. E. 38. 
 A devise "to my foXir sons, or the survivor of them and their heirs and assigns, 
 to be equally divided between them when the youngest attains the age of twenty- . 
 one vears,-' does not raise cross remainders, but each takes a fee. 
 
 " King ■cs. Beck, 15 0. R. 559. See Bane to. Wick, 19 O. K. 328. Where a will 
 will bear two constructions as to the residuary clause, that which is the m9st 
 favorable to the heir at law is adopted. 
 
 i See Negley vs. Gard, 20 0. R. 310; Collier vs. Collier, 3 O. S. R. 369. 
 
230 PRIVATE LAW. L^ook ii. 
 
 land is situate. The will of a person domiciled in Virginia, for instance, 
 havinj)f lands in Ohio, the courts and executor in Yirginia will have no 
 jurisdiction over the land in Ohio, which will be entirely governed by 
 the courts and laws of this State, both as to the rules governing the 
 property, and the mode and rules of descent. If there be a will con- 
 taining a devise of the Ohio lands, the first thing to be done in relation 
 to them will bo to procure an authenticated copy of the will, duly proved 
 and admitted to record in the proper court at the place of the domicile, and 
 have that copy admitted to record in the probate court of the county 
 M'here the land lies; after which the heir or executor may be ready to 
 proceed according to the laws of Ohio, to take care of the land in pur- 
 suance of the terms of the devise. Courts and executors of other States 
 have frequently attempted to proceed in orders and sales of land in Ohio 
 as though it were within their jurisdiction. All such proceedings are 
 absolutely void, and none will be of any avail except those that may be 
 had in pursuance of the laws of Ohio, and in the court having jurisdic- 
 tion of the land. Although a will duly executed and proved abroad, 
 may be by an authenticated copy of the record admitted to record here, 
 yet as to devises of real property, if such will does not substantially 
 conform to our laws, it is apprehended that such part of the will could 
 be successfully contested here.' 
 
 IV. TITLE BY MATTER OP EECOEB. 
 
 § 50. Title by matter of record has, in a great measure, been already 
 considered under the head of Title by Operation of Law. Title is scarcely 
 ever acquired exclusively by either the operation of law or the acts of 
 the parties. It is usually the conjoint action of both ; and in some the 
 operation of the law is more apparent ; and in others, the acts of the 
 parties. Title by matter of record may therefore very properly fall under 
 both heads, as one or the other is apparently the most operative cause. 
 Reference is therefore had to what is said under the former head as to 
 matter of record. Still, there are instances where title is acquired by 
 the acts of the parties where that title is involved and dependent imme- 
 diately upon a matter of record, as where property is purchased upon 
 execution, or under the bankrupt law, or under the attachment law, and 
 the like. Though the acts of the parties are the immediate cause, yet 
 the record and the operation of law necessarily follow to perfect the title ; 
 and, therefore, what is remarked under the former head is properly re- 
 ferred to in this. 
 
 1 See Bailey vs. Bailey, 8 O. R. 239; Meese vs. Keefe, 10 O. K. 362; Manuel 
 vs. Manuel, 13 0. S. R. 458. 
 
CHAP. VI.] TITLE BY TEE ACTS OF THE PABTIES. 231 
 
 V. TITLE BT OCCUPANCY AND PKESCEIPTION. 
 
 § 51. Title by means of possession and occupancy has in some measure 
 been treated elsewhere in this analysis, to which reference is had. Where 
 a person under a claim of right or title takes possession and occupies 
 lauds, his claim will eventually ripen into a perfect and uncontrovertible 
 title. But where such claim of title is not supported by some docu- 
 mentary evidence of title, the occupant will be confined to his actual 
 possessions — his inclosures, or his poi^sessio pedis. But if he takes 
 possession under a deed or some muniment of title, that umy be evidence 
 of the extent and boundary of his title and possession. 
 
 § 52. Title by prescription is very much like that by occupancy, and 
 in some instances is the same. Prescription is said to be the acquisi- 
 tion of real property by a long, honest, and uninterrupted possession or 
 use during the time required by law for that purpose.' The law raises 
 a just presumption in favor of the person who has taken peaceable pos- 
 session under claim of title, when the adverse claimant has for a long 
 time neglected his rights, without any good excuse for so doing. After 
 a time it may be justly concluded that he has abandoned the land, and 
 his claim to it, and it will be presumed that the possessor has acquired 
 it by some conveyance or grant from the former owner ; and after a time 
 such presumption would be raised even against the government. The 
 statute of limitation is twenty-one yeai's of peaceable adverse enjoyment. 
 But what lapse of time, independent of the statute, would warrant a 
 presumption of title is not very well settled. It may be said from thirty 
 to sixty years, dependent upon circumstances which go to confirm or 
 rebut the presumption. Questions of this kind more frequently arise 
 concerning incorporeal rights than concerning corporeal property. 
 
 § 53. Courts will presume the necessary title or conveyance in favor 
 of a long-continued and quiet possession, which is not inconsistent witli 
 the claim all along set up by the occupant. But such presumption is 
 never made except in favor of him who is in possession, and consistent 
 with the apparent right, and to quiet peaceable enjoyment. Wherever 
 such grounds of presumption concur, in favor of presuming a grant or 
 other sources of title, the court will presume other things and maxims 
 to sustain it; as that whatever has been done was rightly done ; what 
 should have been done was done ; and after a lapse of a long time 
 courts will not permit the manner in which a thing was done to be 
 called in question. The rule of law is, that all things done are pre- 
 sumed to be legally done, unless the contrary appears ; omnia rite esse 
 acta.'' Not only may a conveyance be presumed in a proper case, but 
 
 ■ 2 Bouv. Inst. 479 ; Williams's Eenl Property, 269-370. 
 
 ' 3 Stark Ev. 1227-49 ; 1 Phil. Ev. 124 j Bierce vs. Pierce, 15 0. E. 529. 
 
232 PRIVATE LAW. [book ii. 
 
 also a release, where that might be more consistent with the transaction. 
 Thus, where there was a long lease, reserving rent, and none had been 
 demanded for forty-four years, this, unexplained, would raise a presump- 
 tion that there had been a release. 
 
 § 54. These principles and maxims of the law are frequently invoked 
 to raise a presumption in favor of a title founded upon possession and 
 occupancy, upon prescription and upon custom. In all of which cases, 
 after the lapse of time, accompanied with a quiet and peaceable enjoy- 
 ment, there may be an undoubted title without any conveyance or 
 written evidence of title to support it, founded upon a presumption 
 arisin": from the circumstances of the cases. 
 
 CHAPTER VII. 
 
 PERSONAL PROPERTY. 
 
 § 1. Property has been divided into two great classes — real and per- 
 sonal. By the English common law the first, as has been seen, was 
 always denominated lands and tenements, and the latter, goods and 
 chattels.' The division into real and personal property, or, as usually 
 designated here, real and personal estate, was natural and appropriate; 
 still, the English law did not class interest in real property dependent 
 upon a term of years, or a fixed period, which were considered neither 
 freehold nor inheritable, as lands and tenements, but as chattels real, 
 and went with the personal as goods and chattels. The interest which 
 a lessee possesses, says an English writer,' is not his real, but his per- 
 sonal property; it is but a chattel, though the rent may be only nomi- 
 nal, and the term ninety or even a thousand years. This anomaly he 
 explains upon feudal principle, — the great distinction made by it be- 
 tween an interest in lands and tenements, that endured for life at least, 
 and that which terminated at a fixed period. And yet, such a lease for 
 a thousand years would not be, according to its ordinary acceptation of 
 the term, or legal definition, any more personal property than an interest 
 which would endure for life. 
 
 § 2. The English common law surrounded real property with more 
 consideration and importance, and many artificial rules depending 
 upon their feudal origin, than it does on personal property when 
 compared with each other ; and hence the unnatural distinction in this 
 tespect between a freehold estate and an estate for a term of years. They 
 there arrange two important interests, derived immediately from limited 
 
 1 2 Black. Com. 16, 384 ; Williams's Heal Property, 8 ; 2 Stephens's Com. 67. 
 
 2 Williams on Keal Property, 9. 
 
CHAP. VII.] PEBSONAL PROPERTY. 233 
 
 property, — a term of years and a mortgage debt, as part of the personal 
 estate.^ Subject to this classification, they distinguish still further be- 
 tween these two great classes of property by their feudal rule of descent, 
 under which the real property goes, when intestate, to the heir, while 
 personal property is distributed, under the same circumstances, among 
 the next of kin by the administrator. 
 
 § 3. Notwithstanding this unnatural classification, still, in the common 
 law, the definition of personal property is quite unobjectionable. It 
 comprises all sorts of things, movable, which may attend a man's per- 
 son wherever he goes. The terms personal and real, movahln and im- 
 movable, as applied to property, are convertible terms, and really unob- 
 jectionable. In Ohio there has been some nearer approach to this natural 
 division of property than the artificial one of the common law as to in- 
 heritable property. 
 
 § 4. In Ohio there has been a great struggle on the part of the legis- 
 lature to do much to place the distinction between real and personal 
 property on consistent and rational ground ; and on the part of the ju- 
 diciary to avoid the responsibility of declaring that, as the reason of the 
 common law distinction on the subject had entirely ceased to exist here, 
 therefore the law itself ceased to exist, and thereby aid the efforts of the 
 legislature. The supreme court, in 1844, reluctantly declared that they 
 felt bound by the numerous decisions to decide that the common law in 
 this respect was the law of Ohio until modified by legislative enact- 
 ment.^ They, therefore, approved the position that a lease for ninety- 
 nine years, renewable forever, was personal property, which, on the 
 owner's decease, went to the executor. The legislature, however, have 
 since enacted that permanent leasehold estates, renewable forever, shall 
 be subject to the same law of descent and distribution as estates in fee; 
 and sales thereof, upon executions, or order of court, shall be governed 
 by the same laws as estates in fee.' If this legislative provision had 
 been extended to all leasehold estates which were to endure over three 
 years, it would put the matter on rational grounds, and would have cor- 
 responded -with other legislation in relation to leases. 
 
 § 5. Another division of personal property known to the law is corpo- 
 real and incorporeal. This division belongs to personal property as 
 well as real, for it is evident that all things must be either corporeal 
 and tangible, or incorporeal and intangible. Thus, a house is corporeal, 
 but the periodical rent due for its occupancy is incorporeal until it is 
 paid, then the money or other matter paid becomes corporeal. Corpo- 
 real property requires no further illustration. But as to incorporeal 
 
 » AVilliam.s on Eettl Property, 10, 322. 
 
 2 Northern Bunk of Kentucky vs. Koosa, 13 0. E. 3G1. 
 
 « See the law of March 5, 1839. 
 
234 PRIVATE LAW. [bookii. 
 
 property, it may be further said, it is a creature of the imagination, — a 
 right to demand, but not the thing itself, until it is received, when it be- 
 comes tangible and visible. An annuity is incorporeal, for the right to 
 demand and receive it (called the annuity) is a thing invisible, — has only 
 a mental existence, and cannot be delivered over from hand to hand, as 
 all corporeal property may be. Patents and copyrights are another 
 class of incorporeal properly. Besides these general classes of personal 
 property, there is another, — animate and inanimate. As to all of these 
 various classes the law establishes different rules of conduct and pro- 
 'ceedings in relation to them, dependent upon their different natures. 
 
 § 6. In our statutes it is found that different kinds of personal prop- 
 erty are referred to and mentioned, as apparel or garments, jewels or 
 ornament, money, goods, i.e. property laid up in store for future use 
 and consumption ; or for merchandise, household furniture, utensils and 
 tools, as kitchen utensils, farming utensils, mechanics' tools, etc.; ani- 
 mals, domestic and wild, such as horses, cows, sheep, poultry, and also 
 deer, fish, dogs, and the like. Then there are also mentioned the incor- 
 poreal kind, as stocks of banks and joint stock companies, mortgages, 
 notes, claims, and the like, all subject to some different rules of property 
 and mode of proceeding in relation to them. The law in relation to some 
 of these will now be noticed here, others in their appropriate places. 
 
 § 7. I. Movable and immovable. Between these two classes of 
 property the law makes numerous distinctions. Anything fixed and 
 a part of the realty, is not subject of larceny or replevin until it is 
 severed from the realty. All such articles as emblements, fruit, and 
 vegetables, fixtures, and the like, are at any time subject to be severed 
 from the realty, and then they, are, after that, subject to the same rules 
 as all other personal property ; but not so in the very same act in which 
 they are severed. 
 
 § S. Animals are distinguished in the law into different kinds, such 
 as are tame and domestic in their habits, and are denominated domitae, 
 and those that are wild, and are said to be /eras naturse. The first are 
 of a tame and docile nature, and are easily domesticated and subjected 
 to the use and service of man. In such a man may have an absolute 
 property, as he may in any inanimate thing, for such will naturally keep 
 within his control, and will not stray from his keeping, unless by acci- 
 dent or fraudulently taken or enticed away from the owner; in cither 
 case he may reclaim his property wherever found. But with animals 
 feme naturne the case is different. In these he can have no property, 
 except when reclaimed and kept within his power. 
 
 § 9. A man may have a qualified property in such animals when he 
 has tamed them and keeps them within his dominion, or in confinement, 
 as deer in a park, or rabbits in an inclosure, or fish in a pond. So with 
 doves and other birds or beasts that have a house or home, from or to 
 
CHAP. VII.] PERSONAL PROPEBTY. 235 
 
 which they go and return under the care and attention of the owner. 
 So bees in a tree give a qualified property in the owner of tlie soil and 
 tree, for no other person has a right to come there to cut done the tree 
 or take the bees from the tree wherein they are lodged, for such person 
 would be guilty of a trespass. But even this qualified property remains 
 in such owner only while such animals remain in his power, or are in 
 the habit of returning; for if they at any time regain their natural lil> 
 erty, his property is gone, and they may be takea by any person, unless 
 they have animum reverte.ndi, which can be only known by their usual 
 habits. Dogs, cats, and the like, which are only kept for curiosity or 
 fancy, and are not useful for food or labor, are said to have no intrinsic 
 value, and are not protected as other property from larceny, but the 
 owner has only for his redress a civil action for any injury done them. 
 
 § 10. II. Next, property may be distinguished, dependent upon the 
 condition in which it is, as in possession or in action. The distinc- 
 tion in this classification is very obvious. A thing is said to be in pos- 
 session when the owner of it has it in his enjoyment, actually or con- 
 structively, and may use the same without the hinderance of another, 
 who may claim adverse possession. Property in action is the opposite 
 predicament, as where a person has a right or claim to a thing, but 
 which is in the possession of another, and the actual enjoyment of it 
 is withheld from him ; or where a person has aright or claim to demand 
 payment of something due him under a contract either expressed or 
 implied, or to recover damages for a wrong done to him. All such 
 rights or claims to the thing in action are usually denominated in law 
 as chose in action. Thus, money due on a bond or note is a chose in 
 action; for a property in the claim vests, and a right to demand and 
 receive the money when due, but there is no possession until payment 
 is made, or a recovery by course of law. It is the same where any one 
 has neglected or refused to perform what he was bound to do by con- 
 tract. And so it is where a person has converted my property to his 
 own use, or has done me any other injury, for which I have a rightful 
 claim for damages, — in all these instances there is a property, or chose 
 in action. 
 
 § 11. III. Personal property is again subject to a distinction in regard 
 to the quantity of interest the owner may have or claim in it. For a 
 man may have the absolute right of property in the thing; or he may 
 have only the use and enjoyment of it for a limited time, as for life 
 or a limited period. For although the law will not tolerate a perpetu- 
 ity or entailment of personal property, and discourages its being ham- 
 pered or withdrawn from the regular commerce and business of the 
 country, still it is permitted for a person, by his contract or his will, 
 to give his property, as a library, or his horse and carriage, or other 
 property, to another for a limited period, as for life or term of years, 
 
236 PRIVATE LAW. [book ii; 
 
 and the remainder over to anotlier. But this certainly cannot be ex- 
 tended beyond the limitation allowed for real property ; and, besides, it 
 is liable, with the best of care, to be exhausted, expired, or destroyed. 
 Thus the interest of the party in remainder, it is very obvious, is very 
 precarious. A court of equity, howevrr, will interfere for his protec- 
 tion ; and if the tenant for life, or for a limited period, should begin, or 
 threaten, to injure or destroy the property, or neglect to take proper care 
 of it, he maybe enjoined at the instance and for the benefit of the per- 
 son in remainder or reversion, whose interest would be protected by 
 such court, according to the remedy required and .the nature of the 
 case. 
 
 § 12. IT. Lastly, right to personal property may be distinguished as 
 to the number of owners, as to its being in severalty, or in joint ten- 
 ancy, or tenancy in common. At common law, where a title was ac- 
 quired to two or more persons by the same act, they were joint tenants, 
 and not tenants in common, unless something was done to sever their 
 joint, and create a diversity of title ; and where they were joint ten- 
 ants, upon the death of one, the title of the one survived wholly to the 
 other or others. This is what is called the rule of Jus accrescendi, or 
 survivorship. This rule has been abolished in Ohio, so far, at least, as 
 to preserve the rights of others as tenants in common, and permit the 
 personal representative of the deceased to come in and hold an undi- 
 vided interest with the survivor. But as to chose in action, and part- 
 nership property, the survivor is considered in the relation of survivor- 
 ship of joint owners, for the purpose of collecting and making the 
 property available by action or otherwise, but is accountable to the 
 estate of the deceased for its interest, and only holds it in trust for that 
 purpose. The legal interest therefore, in this case, as in many others, 
 may be in one person to the line of or in trust for another, whose inter- 
 est, as the beneficial and real owner, will be protected in a court of 
 equity. 
 
 TITLE TO PERSONAL PROPERTY. 
 
 § 13. The next consideration, after ascertaining the character and 
 condition of personal property, is its title — how it may be acquired 
 and lost. Title is the means whereby a person may have a just right 
 to that which he claims as his own. This may be acquired by three 
 different classes of mean.s: ]. By the meritorious acts of the party 
 himself 2. By means of a contract or some conventional arrangement 
 between the claimant and the former owner. 3. By the operation of the 
 law, or the joint act of the party and the operation of the law. Each 
 of these classes of titles is still subject to be further divided into subor- 
 dinate classes of its own ; under that of the act of the party himself 
 may be enumerated: 1. That of title by occupancy. 2. Title by inuen- 
 
CHAP VII.] PERSONAL PBOPERTY. 237 
 
 tion and authorship. Under that of the second class, or the conven- 
 tional acts of both the present and former owner, may be arranged : 3. 
 Title by gift or gratuitous transfer. 4. Title by contract. The third 
 class, or that acquired by operation of law, are — 5. Title by bankruptcy 
 and insolvencij. 6. Title by wills and administration. 1. Title by 
 forfeiture. 8. Title by custom. 9. Title by marriage. 10. Title by 
 judgment. Each of these will be here considered, while, as to some, 
 reference will be made to other parts for more ample illustration. 
 
 § 14. 1. Title by occupancy is where things are found or produced 
 without any other owner. Things found without an owner may be 
 taken by the first finder and appropriated to his own use. The law, for 
 the peace and good of society generally designates some one as the 
 owner of every piece of property, and a mode of establishing his title. 
 But when a thing is the property of no one, as having been lost, or is 
 wild, as /eras vaturse, or is the production of nature, or that of his 
 own labor, it becomes the property of him who has or takes the first 
 possession, and his title is that by occupancy. If the thing has once 
 been that of any one, and has estrayed or becomes lost, the law enables 
 the owner to pursue and reclaim it wherever he can find it. But, against 
 all the world, possession and occupancy give a title until another 
 shows a better. The law, however, in special instances regulates the 
 right and title to property, when it has passed out of the possession 
 and care of the owner, under the name of estrays, treasure trove, ivaifs, 
 or derelict, and wrecks ; and also booty and prizes in time of war. 
 
 § 15. 2. Title by invention and copyright, Congress, by express 
 authority of the Constitution, has enacted laws to secure, for a limited 
 time, to authors and inventors of new and useful improvements. This 
 secures, for a time, the exclusive benefit of such invention or intellec- 
 tual production, by a patent-right to the inventor and copyright to the 
 author. These rights are generally granted for the period of fourteen 
 years, and are governed by rules and regulations that occupy a s'eparate 
 body of laws. 
 
 § 16. 3. Title by gift and gratuitous transfer of property is where 
 the owner of any kind of personal property disposes of his right in it, 
 by bestowing it to another absolutely, without compensation or ex- 
 change. If it is a sale or exchange, or if a compensation is received 
 for the thing given, then it becomes another transaction and is governed 
 by other principles of law. Property in things personal is transferable 
 from one to another without any restriction in law, to the extent of the 
 possessor's interest ; and if disposed of by one to another, subject to a 
 prohibition that the donee should not dispose of it, the prohibition is 
 void, both on account of its being repugnant to the gift and against 
 public policy. There are some cases where the owner of property is 
 restricted from disposing of Lis property on account of incapacity, such 
 
238 PRIVATE LAW. [book ii. 
 
 as restricts one in making contracts, as infancy, insanity, or where 
 under duress, or, being a married woman, where the authority of the 
 husband cannot be presumed, unless it be her absolute separate prop- 
 erty. There are also some restrictions on the transfer of claim or 
 chose in action, which at common law was not assignable, but by our 
 code is made assignable, so that the assignee can sustain a suit upon it 
 in his own name. But it is probable that under the code a claim is only 
 assignable when it arises ex contracto, expressed or implied, and not 
 when it is ex delicto or on the account of a tort. 
 
 § 17. In a gratuitous contract — that by which one confers something 
 upon another, without any return or compensation — it is necessary 
 that the transfer or transaction should be complete, and not remain in 
 promise or action. For all promi-ses or contract to do something in the 
 future are void, without a consideration to support it. Therefore a gift, 
 which is a gratuitous donation of something to another, must be accom- 
 panied either by the solemnity of a deed, or by the actual delivery of 
 the possession, in order that the transaction should be valid and binding. 
 If the subject of the donation be a note, bond, or some written obliga- 
 tion on another, there should be with the delivery an assignment (un- 
 less where made payable to bearer), as in case of a contract and sale. 
 Such gifts, being without consideration, are subject to be contested by 
 creditors, who otherwise are unable to procure satisfaction of their 
 claims, and to a more strict inquiry as to the validity of the transaction, 
 as to fraud and imposition, and as to the capacity of the donor. For, 
 in the first place, the law requires an insolvent to be just before he is 
 generous, and will not permit him gratuitously to dispose of his prop- 
 erty to the injury of his creditors ; and, in the next, will jealously pro- 
 tect the weak, and require such a transaction to be accompanied with 
 satisfactory evidence and fairness. 
 
 §18. There is a peculiar species of gift, which, though inter vivoa, 
 does not take eifect until after the death of the donor, and is conse- 
 quently in the nature af a legacy, and of no validity against creditors 
 in case of a deficiency of assets.' It is called a donatio mortis causa, 
 and takes place where a person in his last sickness, apprehensive of his 
 speedy dissolution, delivers, or causes to be delivered to another, the 
 possession of any personal property, to keep in case of his decease. 
 This gift, if the donor dies, needs not the assent of his executors, 
 though, like other gifts, it will not prevail against creditors; and it is 
 subject to this implied trust, that if the donor lives, the property shall 
 revert to him, being given only in apprehension of death or mortis 
 causa. Being in the nature of a legacy, this donation may be made by 
 a husband to his wife, though gifts between them are ordinarily void. 
 
 » 2 Stephens's Com. 103. 
 
cgAP.vii.] PERSONAL PROPERTY. 239 
 
 But in order to render such gift, mortis causa, in any case effectual, it 
 must be accompanied by an actual delivery of the chattel ; or if it be in 
 action, as a bond or note, the delivery of the instrument by which it is 
 secured ; and the collection of it will be enforced as in other cases of 
 assignment. After the delivery, the possession must be permanently 
 retained by the donee ; for if it be resumed by the donor, the gift is 
 void. 
 
 § 19. 4. Title by contract takes place where property is voluntarily 
 transferred from one to another, by the agreement of the parties, en- 
 tered into between them according to the rules of law. This is a very 
 comprehensive title of the law, and embraces an infinite variety of trans- 
 actions, and with various relations and combinations enters into those 
 which aptly fall under other heads of the law, as under the last; — that 
 of gift, where the transaction was completed at the time ; and which 
 required no other consideration to bind the agreement of the parties, 
 except the voluntary delivery of possession of the gift on the part of 
 the donor and acceptance by the donee ; but it includes also a variety 
 of other rights and interests, which give title to property, and which 
 are not completed at the time, but confer future claims, and are denom- 
 inated chose in action. It would, therefore, include property under 
 various important branches of the law, which, from their importance 
 and various rules attending their transaction, will require other chap- 
 ters for their proper elucidation, as that upon the term contract itself; — 
 also sale and exchange, bailment, bills of exchange and promissory notes, 
 mortgages, assignments and guaranties, and insurances, and annuities, 
 each of which heads will require one of the following chapters. To 
 these must be referred, as to what is essential to the contract itself, and 
 to these and other subjects in the law, as to the variety of instances in 
 which title to property may be acquired or lost by the contract of the 
 parties. 
 
 § 20. 5. Title by bankruptcy takes place only by proceedings under 
 the provisions of the act of Congress, and is very different from the pro- 
 ceedings for the relief of insolvent debtors under the State laws, in cases 
 of insolvency and assignments for the benefit of creditors. These dif- 
 ferent proceedings are alike in some things, and differ materially in 
 others. They are both intended for the relief of insolvent debtors, and 
 under each the principal part of the debtors' property is disposed of for 
 the benefit of their creditors, and by such disposition other persons be- 
 come the purchasers and owners of such property. By the proceedings, 
 under the act of Congress, in bankruptcy, the debtor becomes discharged 
 of his debts and begins the world anew, freed from them. Under the 
 proceedings of the State law the debtor, upon the assignment of his 
 property for his creditors, is relieved from imprisonment for debt. Both 
 of these subjects will require minute examination of the several stat- 
 utes and laws upon the subjects. 
 
240 PEIVATE LAW. [book ii. 
 
 § 21. 6. Title by wills and administration is another means by 
 which title to property is acquired, more by the mere act of the law 
 than the act of the parties, yet in most instances it is the combined ac- 
 tion of both. The rules and principles of law in relation to this head 
 will principally be found in the future chapter on Wills and Administra- 
 tion, to which reference is had. But it may be remarked that this title 
 has particular reference to property acquired by legacy, and distribution 
 of personal property in the administration of decedents' estates, and 
 property acquired by succession. 
 
 § 22. 7. Title by forfeiture. There are a number of instances 
 where, by law, one person may lose and another acquire rights and 
 property by forfeiture. 1. By contract, as in cases of pledg-es and 
 deposits, to be forfeited on certain conditions or in cei-tain events, as 
 mortgages, pledges, and bets or wagers. In some of these instances, 
 where, at law, by the contract of the parties the forfeiture is absolute, 
 and the transfer and title have become complete and absolute, still a 
 court of equity, upon application in due time, and showing reasonable 
 excuse, will often, upon equitable grounds, give relief again.st such for- 
 feitures. But often, where the transaction is against public policy, as 
 wagers, and the parties are in pari delicto, the courts will in no way 
 interfere, but leave the property in the hands of him in whose posses- 
 sion iSe property has been voluntarily placed. 2. There are certain 
 penalties created by statutes, by which one person loses property and 
 another acquires it, as in cases of many revenue and license regula- 
 tions. 3. And a corporation may, by willful non-feasance or malfeas- 
 ance, forfeit its franchises, which may be seized by the State, on a 
 judgment upon an information prosecuted by the State by means of the 
 proper remedies of quo warranto or scire facias. 
 
 § 23. 8. Title by custom is where a particular custom gives a title 
 which cannot be attained by the common law or the law of the whole 
 State. A custom is a usage which has acquired the force of law, and 
 receives its sanction from the common consent of the people. It cannot 
 be contrary to the positive law of the State, but subordinate to it. It is 
 said that the common law is but the general custom of the whole State ; 
 but what is here meant by the term are those particular customs which 
 are acknowledged to be in force in some particular place or district. 
 Custom may exist and have the force of law in one place and not in 
 another, dependent upon the usages and the course of business and 
 trade there. It is claimed that it must have continued for a "time 
 whereof the memory of man runneth not to the contrary." But proba- 
 bly this only means that it must be well established, and generally 
 known and acknowledged. In order that it be a good custom, it must 
 also be peaceably established, publicly known, uniform in its operations, 
 general and continued in its operations in the place or district, and in 
 
CHAP. VII.] PEBSONAL PROPERTY. 241 
 
 itself must be reasonable and certain. These qualities must charac- 
 terize it, or it must yield to the general law of the State. 
 
 § 24. 9. Title by marriage is where property is acquired by marital 
 rights. The laws applicable to this head will be found in the chapter 
 on Husband and Wife, and those on real property in relation to curtesy 
 and dower, to which reference is had, as ample on this topic. 
 
 § 25. And lastly, 10. Title by judgment is where property is held and 
 the title to it depends upon some judgment or decree of court founded 
 upon some judicial proceedings. A judgment is the decision or sen- 
 tence of the law given by a court of justice or other competent tribunal 
 having jurisdiction of both the parties and subject-matter, as the result 
 of the proceedings instituted therein. The judgment so rendered has 
 an obligatory effect upon the party in two points of view, — it is the 
 sentence of the law, against which no one can contend ; and also by a 
 presumption of law, that there is a promise — an implied one, at least — 
 that the party will perform his part of the judgment in a case in which 
 he has been a party in the court. 
 
 § 26. But to the force and effect of such judgment there may be two 
 classes of objections which, if sustained, are fatal, and render the judg- 
 ment absolutely void. These are the want of jurisdiction in the court, 
 either, 1, over the subject-matter, as the want of territorial jurisdiction 
 over the party or over the class of cases to which the action belonged ; 
 or, 2, want of jurisdiction over the parties, where the party had not 
 been duly summoned, so that he had no day in court. Where these 
 objections actually exist to the judgment, they are so fundamental, 
 when sustained, that it renders the judgment absolutely void, so that it 
 sustains no title dependent upon it. 
 
 § 27. Frequently the title to property depends upon the direct judg- 
 ment of the court, as in cases of mortgages, liens, and the like, as well 
 as upon rules in satisfaction of judgments. In all these cases the 
 record of the judgment must be shown, in order either to prove the 
 title or to justify the sale. A judgment may be void, in which case it 
 can create no title ; or it may be only voidable, where it cannot be col- 
 laterally impeached ; and it may be the foundation of a good title, 
 which was created by it before it be reversed. 
 
 § 28. Where the court had no jurisdiction of either the subject-matter 
 or the parties, their judgment is void ; but where the court had jurisdic- 
 tion of the subject-matter of the action, and. the parties were before the 
 court by proper process, its judgment in the case, though erroneous, is 
 not void ; the jurisdiction is not ousted by the erroneous exercise of the 
 powers which it possesses.' A court may act, first, without power or 
 jurisdiction ; or, secondly, having power and jurisdiction, it may exer- 
 
 » Moore vs. Kobinson, 6 O. S. E. 302. 
 16 
 
242 PRIVATE LAW. Ibook ii. 
 
 cise it wrongfully; or, thirdly, irregularly. In the first instance, the act 
 or judgment of the court is wholly void, — it is coram non judice, and 
 it can confer no title. In the second, it is wrong, but it must stand as 
 the judgment until reversed by proceedings in error, and cannot be 
 impeached in a collateral proceeding. In the third, the irregularity 
 can only be corrected upon motion, which usually leaves the judgment 
 unaffected.' In the two last instances, where, on a sale or otherwise, 
 the judgment conferred a title upon innocent purchasers, the subse- 
 quent reversal or amendment of the judgment will not affect the title, 
 upon principle of public policy in sustaining judicial sales. 
 
 CHAPTER VIII. 
 
 TITLE BY STICOESSION. 
 I. TITLE BY WILLS AND BEQUESTS. 
 
 § 1. Another mode of acquiring title to personal property is by will, 
 — usually denominated, in legal phraseology, last will and testament. 
 The law has usually gratified persons in that instinctive desire of the 
 human heart, to direct the manner in which the property that their in- 
 dustry and frugality have enabled them to acquire shall be disposed 
 when they shall cease to exist, and care for it. This desire is about as 
 strong a ruling passion as that by which the property was first acquired, 
 and the law has, in like manner, indulged and protected it. But such 
 disposition of property is always subject to the positive law of the 
 land, and usually great distinction is made between wills which dis- 
 pose of real property^ and those which do the same as to personal 
 property. The language of the former is " will and devise," while as 
 to the latter it is " will and bequeath." This is mere formal matter, 
 which has no substantial effect ; but there are substantial differences in 
 the law between a devise and a bequest. A devise of land, as soon as 
 the will is proved and admitted to record, conveys the legal title to the 
 devisee; but as to bequest of personal property, it is first subject to the 
 legal control and title of the executor or administrator, as the represent- 
 ative of the testator, and when not needed by such representative for 
 the purpose of settling the estate, he delivers it over to the donee, 
 according to the will and the law of succession. 
 
 § 2. Although there is a resemblance in the laws of most countries in 
 
 1 Paine »s. Moprland, 16 0. K. 435. 
 
 2 See ante, ch. vi. § 37, etc., to 49. Under the head of Devises much of th« 
 law in relation to wills will he found. 
 
CHAP. VIII.] TITLE BY SUCCESSION. 243 
 
 relation to will.s, and they are governed by general principles, yet they 
 are controlled, in a great measure, by the positive laws of each country. 
 Accordingly the several States have enacted various statutes regulating 
 the disposition of property by vs'ill, which are different in many particu- 
 lars, still leaving a strildng resemblance between them. The object has 
 been to establish a uniform rule for their execution, to guard and pro- 
 tect the public interest, and to save their execution from being produced 
 by improper influences. Many of the rules of the common law, as to 
 wills, have been rendered inoperative, both in England and this country, 
 by recent statutes; such as that a devise of land had reference to t!ie 
 title the testator had at the time he executed the will, and did not in- 
 clude after-acquired title, and directly the contrary principles as to a 
 legacy.' According to the laws of Ohio, a verbal or nuncupative will 
 may be made as to personal property, but as to real property it must be 
 in writing, and must be executed as stated under the head of Devises.'' 
 As to personal property, the statute permits a person in his last sick- 
 ness to make a verbal or nuncupative will, which must be reduced 
 to writing within ten days and subscribed by two witnesses who 
 heard him declare the same, and ask some one to notice that it was 
 his will ; and it must be proved and admitted to record within six 
 months, otherwise a will must be in writing, and as to its mode of exe- 
 cution, there is no difference whether it be a devise of real property or 
 bequest of personal property. 
 
 § 3. As a general rule, the will is governed by the laws of the place 
 of domicile of the testator, and especially is this the case of personal 
 property. The law of the domicile applies equally whether the party 
 whose succession is in question died testate or intestate. The admin- 
 istration of the personal estate of a deceased person belongs to the court 
 of the country where the deceased was domiciled at the time of his 
 death.' And it is there, as the forum concursus, that the legatees 
 under the will, or the parties entitled to distribution of the estate of an 
 intestate, are entitled to resort. But in regard to real property, the va- 
 lidity and construction of a will, as well as the rules of descent, must be 
 governed, exclusively, by the laws of the country where the property 
 may be situate — by the lex rei siise. It seems that a will in relation 
 to the personalty should conform in its execution with the laws of the 
 
 iSee ante, Devises, ch. vi. § 40; Statute, act of May 3, 1852, J 54; 4 Kent's 
 Com. 508. 
 
 2 1 Redf. Wills, 96, ? 5; 2 Paige's E. 147 ; Scribner vs. Crane. In Ohio two wit- 
 nesses at least are required to a will, who should know from the testator himself 
 that it is his will, and that he understands what he is doing. It is not necesiiary 
 that they should know its contents, but should know that he declares it to be his 
 will, and that he has capacity to understand it. 
 
 « 1 Kedfield's WiUs, 396, § 5 ; Manuel vs. Manuel, 13 Ohio St. B. 458. 
 
244 PBIFATE LAW. [book ii. 
 
 domicile, and that which relates to the realty, to the law of the place 
 where it is situate. To prevent any difficulty in relation to the mode 
 of executing a will out of the State, the laws of Ohio provide that a 
 will relating to real or personal property, executed in any other coun- 
 try, and executed and proved according to the laws of such country, may 
 be admitted to record in any county in Ohio where there is any property, 
 and have the same validity as though executed and proved in the State. 
 
 § 4. Many questions have arisen in practice as to the form of execu- 
 ting a will, and where it should be admitted to probate. There are 
 general common law rules upon the subject, and these are frequently 
 simplified and the matters facilitated by statute, as in the case last 
 ■f5tated, where the laws of Ohio admit the authenticated copies of 
 wills, executed and admitted to probate according to the laws of other 
 states or countries, to record in this, and to have the same effect and 
 validity as though executed and admitted to probate here, both as to 
 real and personal property. This is in conformity with common law prin- 
 ciples as to personalty ; but as to the realty it may obviate great doubt 
 and diEBculty, — that a devise of real property, though executed abroad 
 according to the law of the domicile, would have no validity unless exe- 
 cuted in conformity with the law of the State. But it seems that it is 
 the domicile of the testator at the time of his death that governs the 
 case, and gives jurisdiction to the court to probate the will. Therefore, 
 where a will is executed in one country, according to the laws thereof, 
 and afterward the testator acquires a domicile in another country where 
 that mode of execution is not recognized, it is probable such will could 
 not be admitted to probate, for the will must be governed by the law 
 of the domicile where the will becomes an operative fact. 
 
 § 5. It is the probate court of the domicile at the time of the decease 
 that has jurisdiction of probate of the will, and administering on the 
 estate in the first instance ; and when the will is proved and admitted 
 to record there, the finding and judgment of the court upon the due ex- 
 ecution and validity of the will are conclusive and binding upon the 
 whole world. If the matter is to be contested, it should be reviewed 
 (by appeal or in error) in the courts of the original jurisdiction. A 
 probate of the will is not like an ordinary proceeding to decide a contest 
 between parties, but a proceeding in rem to determine the character 
 and validity of the will as an instrument affecting the title to property, 
 which, by comity and the necessary repose of society, should be defi- 
 nitely settled by one judgment; and, therefore, neither a court of equity, 
 nor any other court of another jurisdiction, will review it, or grant relief 
 against it.^ The law of the place of the domicile at the time of the tes- 
 tator's death governs the validity of the will, and the rights of legatees 
 
 ' 1 Eedfield'B Wills, 405. 
 
CHAP. VIII.] TITLE BY SUCCESSION. 245 
 
 and distributees under it, as to personal property ; but the rights of 
 heirs and devisees to real property must be determined by the law of 
 the place where the realty exists.' 
 
 § 6. When a will has been proved and admitted to record, per^ 
 sons interested in it are then entitled to claim whatever interest 
 it confers upon them, to be realized in a manner pointed out by law. 
 But a will, like all written instruments, is subject to certain rules of 
 construction, in order to ascertain the intention of the testator. Still, 
 such rules are applied with more favorable construction in cases of 
 wills than in those of ordinary legal instruments.' In the application of 
 these rules, it is said that the intention of the testator is to be sought 
 and considered as the polar-star, in ascertaining the meaning of the will. 
 The intention of the testator must govern ; and it must, of course, be 
 ascertained from the language of the instrument as applied to the sub- 
 ject-matter and the surrounding circumstances. It discards all techni- 
 calities, and permits the testator to express his intention in any words 
 or language he pleases that can be interpreted or understood by the 
 court. 
 
 § 7. From the very nature of the subject a will is presumed to speak 
 at the death of the testator, and it is then that it takes effect, and the be- 
 quests become operative, unless the language, by a fair construction, 
 indicates the contrary construction.' Hence, a will of personal prop- 
 erty generally carries all the testator had at the time of his death. This 
 has ever been the common law as to legacies, though formerly devises 
 did not take after-acquired land, and lands sold after the execution of 
 the will became adempt; but now, in almost all countries, either by 
 statute or legal construction, the law of legacies and devises, in this 
 respect, is put upon the same principle.* But where the language refers 
 to the then existing state of things at the making of the will, it should 
 bo considered to refer to the date of the will and not to his death. 
 Where the testator gave his library, now in the possession of B, and 
 afterward purcha.sed more books, which he placed in the same library, it 
 was held that the after-bought books passed under the bequest. Here the 
 words " now in the possession," etc. would ordinarily confine the bequest 
 to what it was at the time, but other circumstances would indicate the 
 intention of the testator to bestow the library, and the words " now," 
 etc. wrould be considered as only part of the description and identity of 
 the property as a whole. 
 
 § 8. In the interpi'etation and construction of wills, as in cases of all 
 other written instruments, parol testimony is inadmissible to alter or 
 
 » Bailey M. Bailey, 8 O. B. 239. 
 
 2 1 Kediield's Wills, 420 ; 15 O. S. E. 103. See Statute May 3, 1852, J 52. 
 
 » 1 Kedf. Wills, 379. 
 
 * See Stat. May 3, 1852, 2 54. Keynolds vs. Sherley, 7 O. R. pt. 2d, 88. 
 
246 PBIVATE LAW. [book ii. 
 
 vary its terms, or to explain a, patent amhiguity. The will must speak 
 for itself.' But where there is a latent amhiguity, arising dehors the 
 will, as to person or subject-matter meant to be described, or to rebut a 
 resulting trust, parol testimonj' is admitted only in these two cases, i.e. 
 latent ambiguity or resulting trust. In these cases, where the difficulty 
 arises outside of the will, aliunde, as where two persons claim the same 
 bequests by the same name, or where there are two or more things an- 
 swering the description of the bequest, or any such difficulty, Avbich 
 does not appear in the will itself, but arises from testimony or circum- 
 stances outside of the will, parol evidence may be admitted to prove 
 facts and circumstances, to show which of the conflicting things was 
 the true intention of the testator. But any mistake or omission in the 
 draft of the will, or difficulties apparent on the face of the will, can only 
 be corrected by the intention of the testator as drawn from the will 
 itself, aided by a knowledge of the surrounding circumstances.^ 
 
 § 9. The law permits a will to be altered, added to, or amended by 
 an additional writing called a codicil, which is defined to be some addi- 
 tion to, or qualification of, one's last will and testament, without revok- 
 ing the will or making a now one ; but such codicil must be executed 
 and attested in the same manner as the will should be. A codicil may 
 operate as a republication of the will, and all codicils, however numer- 
 ous, are to be regarded as part of the will, and all, together with the 
 will, are to be construed as one instrument. By means of such codicil, 
 or perhaps by inconsistent provisions in the will itself, there may be 
 conflicting terms, when the whole is viewed, one part Avitb another. 
 Such conflict must be reconciled in the first place with what appears to 
 be the intention of the testator. As the testator has a right to alter or 
 modify his will as he pleases, his last clear manifestation of it must be 
 regarded ; still, the whole must be regarded as bis will, if it can be con- 
 sistently, and therefore any incongruous or irreconcilable matter, either 
 in the will itself or between the will and codicil, should be reconciled, 
 if possible, consistent with the manifest intention ; and the rule that the 
 last must prevail is only to be adopted when no other mode of construc- 
 tion would be consistent with the intention. Therefore, even the codicil 
 is considered only an addition to the will, and is not presumed to inter- 
 fere with the previous provisions, unless the language naturally and 
 obviously produce such result.' 
 
 § 1 0. Another important consideration in relation to the law of wills 
 is the manner in which they are permitted to be revoked or altered after 
 
 1 "Worman vs. Teagarden, 2 O. S. K. 380. 
 
 2 1 Eedf. Wills, 288 ; Negley vs. Gard, 20 O. E. 310; Collier vs. Collier, 3 O 
 S. R. 369. 
 
 8 1 Eedf. Wills, 362; 3 0. S. E. 369. 
 
CHAP, viii.] TITLE BY SUCCESSION. 247 
 
 being once executed. This may be done — 1. By another will, or some 
 act executed with the same solemnity ; and therefore a verbal or nuncu- 
 pative will will not effect the revocation of a regular will. 2. By the 
 testator having the will canceled, obliterated, or destroyed, with the 
 intention of revoking it, by himself or some person in his presence or 
 by his direction.' Where the testator directed his will to be destroyed, 
 and he thought it was done, but was not, it was held that it did not 
 amount to a revocation where no sign of such attempted revocation 
 appeared on the paper itself. It seems that something must be done 
 that on its face shows a cancellation. 3. By ademption, — which 
 occurs where the particular thing given is either wholly lost, destroyed, 
 or disposed of by the testator during his life, or its form so changed as 
 not to remain in specie. So that if the subject-matter of the bequest 
 either ceases to be the property of the testator, or is so changed during 
 his life as no longer to be susceptible of identification, it is said to be 
 adeemed, or gone. 4. By the death of the devisee or legatee before the 
 testator. It is a well-established rule that where the donee dies before 
 the testator, the bequest, both as to a devise or legacy, fails, as becom- 
 ing lapsed.^ Our statutes, however, have made important alteration 
 in the law in this respect, and provide that when a bequest is made to 
 a child or other relative of the testator, if such child or other relative 
 shall die, leaving issue surviving the testator, such issue shall take, in 
 the same manner as the devisee would have done had he survived, un- 
 less a different disposition is required by the terms of the will.' 5. A 
 will may be altered by the testator disposing of the specific bequest by 
 some subsequent act, and this is denominated an ademption, and by 
 that means the residuum of the estate may be greatly enlarged. As 
 where the will bequeathed the money that might be recovered in a cer- 
 tain case, and afterward the money is received by the testator himself, 
 it is an ademption ; and it is the same in the case of a devise of specific 
 real property. But such subsequent disposition of the specific property 
 does not revoke the will, unless it conveyed the whole, for the will will 
 attach, pro tanio, to such portion of the bequest as remains untouched 
 by such subsequent disposition. The general rule is, that if the devise 
 conveys the whole estate, and the subsequent disposition does not trans- ■ 
 fer the whole, but leaves a portion which would descend at law, the 
 devise attaches to such portion and carries it to the devisee.* 
 
 >■ Stat. 18.52, § 39. 
 
 ' The term bequest is appropriate as to both legacies and devises, and embraces 
 both real and personal estate ; but the term devise is appropriately applied to dis- 
 position of lands. Such donee of lands is called the devisee, and such of person- 
 altj', the legatee. 1 Eedf. Wills, 6. 
 
 ' Stat. May 3, 18.52, ? 56. 
 
 < Gilbert vs. "Winter, 10 0. E. 64; Brush vs. Brush, 11 0. E. 287. 
 
248 PBIVATE LAW. [book n. 
 
 § 11. The doctrine of ademption is applied to another class of cases, 
 in equity rather than at law ; as where a father gives a legacy to a child, 
 which is understood to be intended as a portion, and afterward advances 
 a portion to such child, in the absence of anything appearing to the con- 
 trary, it will be presumed that the father intended the same purpose in 
 each instance, and the advancement is therefore an ademption of the 
 legacy ; but with a stranger, as the bequest would be considered a 
 bounty, and not the intention of discharging a duty, it might be other- 
 wise, unless it appeared that such was the intention of the testator. 
 Where the father had provided a legacy for a child, and afterward made 
 an advancement less in amount, it was considered only an ademption 
 pro tanto. This principle of aderapuon, by subsequent advancement, 
 has not been applied to either devises or legacies, where the portion was 
 inadequate, or the two donations are not of the same character or ejus- 
 dem generis. In these cases parol evidence has been admitted, as in 
 cases of- latent ambiguity, not to explain with what intent a writing is 
 made, but for the purpose only of ascertaining whether the presumption 
 of an ademption which the law has raised be Well or ill founded.' 
 
 II. ADMINISTRATION. 
 
 § 12. .1. General principles. The laws of different countries and states 
 widely differ as to inheritance, succession, and distribution of decedents' 
 estate. The old common law upon the subject was rather crude and 
 imperfect, and both in England and this country it has been greatly 
 modified by statutes ; yet, wherever the common law prevails, there is 
 still a striking resemblance in general principles. The common law 
 everywhere makes a striking difference between the title and the incidents 
 of its transfer, of real property, and that of the personalty. This differ- 
 ence is partly founded upon the nature of things, and partly upon the 
 principles of the feudal law — engrafted upon our common law. This is as 
 strikingly carried in relation to the questions of inheritance and distribu- 
 tion of property upon the death of the owner, as in any other division 
 of the law. The real property, upon the death of the owner, immediately 
 descends to the heir as his inheritance — the law casts it upon him as 
 the owner. Not so, however, with regard to the personal property — 
 as to this, as a matter of safety to all persons concerned, the law gives 
 the entire right to control it to the person who takes the legal right 
 to administer upon the estate of the decedent ; and so strictly is this 
 the case, that even wiiere the heir or widow has taken possession of 
 such property and sold it, the administrator or executor who adminis- 
 ters upon the estate may afterward reclaim such property and take it 
 away from even a bona fide purchaser. 
 
 1 2 Eedf. Wills, 538 ; 3 Greonlf. Ev. I 366. 
 
CHAP, viii.] TITLE BY S DC CESSION. 249 
 
 § 13. The administration thus conferred by the law is not for the 
 purpose of conferring a benefit upon him, but as a trust for the purpose 
 of protecting the rights of all persons, as the creditors and heirs. In 
 this country the whole property of the decedent — both real and per- 
 sonal — is subject to the payment of tho claims of creditors, and for that 
 purpose the personalty must be applied, and if that is found insufficient, 
 then the realty is subject, except the prior claims of the widow. Regu- 
 larly, neither the executor nor administrator should be permitted to do 
 any act in regard to the estate before he is appointed by the court, ex- 
 cept such necessary ones as are indispensable to the preservation of the 
 estate ; and as to such, the court will undoubtedly protect them as well 
 in the case of an administrator as that of an executor.' Still, many 
 estates are settled up, where there are no conflicting claims of creditors 
 or others, without any legal administration — where the will is proved 
 and recorded, and no letters taken out, but the property is gone into the 
 hands of those who are entitled to it. This, however, is a dangerous pro- 
 ceeding, for the reason that it is contrary to the course pointed out by 
 the law, and those who have interfered may be called to an account for 
 it, and subjected to greater liabilities than it would be their interest to 
 endure. 
 
 § 14. 2. Wlio may administer, and their mode of proceeding. 
 When the will (if thpre be any) is proved and recorded, the execu- 
 tor named in the will (if there be one appointed) is entitled to admin- 
 ister upon the estate, by taking out letters testamentary from the 
 probate court, which authorizes him to do so. But in case there is no 
 will, the decedent is said to die intestate, and the estate is to be ad- 
 ministered as such ; and, upon proper application, the court will appoint 
 an administrator; and in case there is a will and no executor appointed 
 by the will, or in case the executor named refuses to accept and qualify, 
 the court, in either case, will appoint an administrator with the will 
 annexed. The administrator, with a copy of tho will annexed to his 
 letters of administration, is authorized to proceed to administer on the 
 estate and settle it up in the same manner as the executor should do in 
 case one had been appointed and qualified. 
 
 § 15. On the application being made, the court will issue the letters 
 to the proper persons, and the only objections which will be available 
 to preclude the appointment are, that the applicant is mentally incapable 
 of performing the duties, or under the age that our law allows a person 
 to perform business for themselves, or that she is a married woman. 
 The law puts such restrictions only on the appointment as will secure 
 able and faithful discharge of duties, and excludes the administration by 
 married women because that relation throws so many embarrassments 
 
 1 2 Kedf. Wills, 68. 
 
250 PRIVATE LAW. [bookii. 
 
 in the way as to induce their entire exclusion. Subject to these exclu- 
 sions, the court will issue the proper letters ; and in case there is no proper 
 executor entitled, the law then gives preference, first, to the widow; 
 if she declines, or there be none, then to the next of kinj^ and in case 
 they decline, then to any competent creditor or other person who may 
 accept and qualify under the appointment. Before the letters are issued, 
 the person to receive them should first give bonds to the State in double 
 the sum of the probable amount of assets which will pass through his 
 hands, with sufficient sureties to secure the faithful discharge of his 
 dutie-?. In some cases the probate judge is authorized, in his discretion, 
 to dispense with such bond where it is requested in the will, or where 
 the residuary legatee will give bond that he will pay the debts and 
 legacies. 
 
 § 16. The duties of the executor or administrator thus appointed are — 
 1, to advertise his appointment, so that the creditors and heirs may 
 have notice of it ; 2, to have tlie goods and chattels of the deceased 
 (the assets) appraised by three suitable persons appointed by the court, 
 whose duties will be (1) to setoff to the widow, and children under the 
 age of fifteen years, a large amount of property designated by the stat- 
 ute, making a generous allowance of such things as usually belong to 
 the person, house, and home of the deceased, and also to list and allow 
 the widow to hold all such articles of furniture .and household goods 
 as the wife brought with her at her marriage, or which subsequently 
 came to her by bequest or gift, or were purchased with her separate 
 property ; (2) to make an allowance for the widow and such children 
 for their support for one year from the death of the father. All these 
 things so assigned are secured to the use and benefit of the widow and 
 children, and taken out of the assets which are for the benefit of cred- 
 itors. The appraisers are then to make an inventory of the assets which 
 go into the hands of the administrator of (a) all the goods and chat- 
 tels that are left; and then (6) the credits due the deceased, — his choses 
 in action. These inventories and appraisement are to be returned under 
 oath to the court within three months, together with a bill of sale of 
 the property. The inventory and sale bill are charged to the adminis- 
 trator as tiie assets with which to settle the estate. 
 
 § n. The executor or administrator next proceeds to receive in writ- 
 ing claims of debts against the estate, which should be presented within 
 twelve months from the time of the advertisement; and, as soon as con- 
 venient, pay the preferred claims in the following order, which are: 
 First, the expenses of the last sickness and funeral expenses of the de- 
 ceased, and the costs of administration. Secondly, the allowance made 
 
 ' For iiscertaining who are next of kin, see Heirs, ante, cb. v. J 5-26; 2 Steph. 
 Com. 237. 
 
CHAP. VIII.] TITLE BY SUCCESSION. 251 
 
 to the widow and children for their support for twelve months. Thirdly, 
 the debts entitled to a preference under the laws of the United States. 
 Fourthly, public rates and taxes, and dues due the State. Fifthly, where 
 the estate is found to be solveat, to pay every other class of debts and 
 legacies. 
 
 § 18. But as soon as the estate is found imolvent, within the year, 
 the executor or administrator should report the estate probably insol- 
 vent, and obtain an order of the court to proceed accordingly. Upon 
 such proceeding a settlement is finally had, and, after allowing payments 
 made on the preferred claims and costs, a dividend is made of the resi- 
 due of the assets among the general creditors, and the estate is thus 
 settled as insolvent. 
 
 § 19. When the estate is undoubtedly solvent, the executor or admin- 
 istrator should proceed in the administration accordingly, and, after pay- 
 ing the preferred claims, should proceed to settle and pay the general 
 creditors, carefully requiring due proof of such claims, and taking proper 
 receipts of all mouej^ paid out and dispersed, as vouchers upon his final 
 settlement. In cases of wills and legacies, the law does not require the 
 executor or administrator to pay legacies until he is satisfied that the 
 estate is solvent, and able to pay such legacy without infringing upon 
 those who have prior claims; the administrator is, therefore, permitted 
 to use his prudence and caution as to the discharging the legacies, 
 until he sees that he has ample means to do so, or until the settlement 
 with the probate court. Where the legacy is a specific legacy, or con- 
 sists of a particular thing, the person administering should endeavor to 
 retain such article from the sale, and, as soon as satisfied that the estate 
 is able to satisfy all claims without the aid of such specific article, it 
 should be delivered to the legatee, and take his receipt therefor ; and 
 in like manner he may pay a specific legacy to be paid in money ; but 
 ■where it is to be paid out of the residuum of the estate, it should not 
 be paid, except at the discretion of the administrator, until after his 
 settlement. 
 
 § 20. After the expiration of the year (from the advertisement) given 
 to creditors to present their claims, and within eighteen months, the 
 executor or administrator is required to settle his accounts with the 
 court. For this purpose it is necessary for him to file his account, 
 charging himself with the amount of the sale bill and other property 
 charged in the inventory, then any money he has received as due the 
 estate; and also any money he has received upon the sale of any real 
 property, that he may have sold by the order of court, or was author- 
 ized to sell by the will. He will then credit his payments severally, 
 noting the date, name, character of the claim, and number of the 
 voucher, which should accompany it. In this manner should be enu- 
 merated, first, the payments of the preferred claims ; next, the payments 
 
252 PRIVATE LAW. [book ii. 
 
 of the claims of the general (;reditoi-s, and those of the specific legacies ; 
 but such legacies as are only to be paid out of the residuum should not 
 be entered into this account, but retained until after the settlement, to 
 be paid and settled out of the balance or residuum found on such settle- 
 ment, upon its distribution. The filing of this account for settlement 
 is then advertised, and a day set for a final hearing ; thus giving all in- 
 terested an opportunity to examine and object to it, and see that it is all 
 right. The court finally ascertains the balance of the account as the 
 residuum of the estate, to be distributed to the widow, legatees, and 
 heirs in accordance with law, and ordered to be paid accordingly. 
 
 § 21. In this State all the property of a decedent is subjected to the 
 payment of his debts ; first, hi.s personal properly by the administra- 
 tion, and, in case that is not sufficient, then so much of his real estate 
 as may be necessary may be sold for the purpose, by the order of the 
 court. When the executor or administrator finds that the pcsonal 
 property is insufficient to pay the debts and legacies, he may file a 
 petition in the probate court, setting forth the facts of the case, and de- 
 scribing the land to be sold, stating the names of the heirs to whom 
 such lands and tenements have de.scended, the name of the widow, if 
 any, who has a right of dower in the premises, and that of any other 
 person who may have a claim or lien on the same ; and then all these 
 persons should be made party defendants to such petitition, and by a 
 proper process must have a day in court, in order to set up and protect 
 their rights and claims, if they have any. The court, upon filing the 
 petition, sets the time of hearing and trial, and orders notice or process 
 to be served on the defendants. At the trial, in case no legal objection 
 appears, the court orders tiie premises to be appraised by three judi- 
 cious persons named by the court, who, when necessary, are to assign 
 dower to the widow. Then the premises is to be sold upon the order 
 of the court, at public vendue, after four weeks' notice, at a price not 
 less than two-thirds of the appraisejl value. Upon the return and re- 
 port of the sale being made, the proceedings are examined by the court,' 
 and if found correct and in conformity with law, the court confirms the 
 sale, and orders the plaintiff to make and e.xecute a proper deed of con- 
 veyance to the purchaser in conformity with the sale. The proceeds 
 of the sale are to be added to the assets, for the payment of the debts 
 and legacies, and the settlement of the estate. 
 
 §22. 3. The distribution of the estate, and right of succesfiion. The 
 law regulating the distribution and succession of the personal property 
 of a deceased person in Ohio is so very different from that pointed out 
 by writers on the common law that they cannot be relied upon, except 
 by a careful comparison with oiir statutes upon the same subject. We 
 can truly claim that our laws are the most simple and just, and make 
 the most ample and generous provisions for the widow and infant chil- 
 dren, while at the same time doing justice to all classes of creditors. 
 
CHAP. Tiii.J TITLE BY SUCCESSION. 253 
 
 After the settlement with the court, and the distribution comes to be 
 made, there is a difference to be observed, whether the decedent died 
 intestate, or his estate is to be governed and modified by a will in its 
 distribution.^ And firat, as to the distribution of the estate of an in- 
 testate, our statute law provides, that when the intestate leaves no 
 legitimate children, heirs of his bodj, the widow is entitled to all the 
 personal estate, subject to distribution, as next of kin ; and if there be 
 such child, then the widow shall be entitled to one-half of the first four 
 hundred dollars, and one-third of the residue. But in case the residue 
 is made up of the proceeds of the sale of real property — as that is 
 taken from the property of the heirs — there will be no part of it go 
 to the widow, but will go to those heirs from whose lands it was 
 raised. 
 
 § 23. In order to establish who are the next of kin, entitled to a 
 share in the distribution of the residuum, the statute declares^ that the 
 personal estate of the intestate shall be distributed agreeably to the 
 course of inheritance pointed out by the statute regulating descent of 
 real estate which was not an ancestral estate. That statute points out 
 who are heirs, and next of kin in various degrees, and establishes as 
 such — 1st. The children of the intestate and their legal representatives. 
 2d. If there be no children, or their legal representatives, the estate 
 shall go to, and be vested in, the husband or wife, relict of the intestate. 
 It then declares who are heirs and next of kin after these, to which 
 reference must be had.^ 
 
 § 24. The statute not only points out the next of kin, but where 
 there are a number so entitled, and they stand in different degrees of 
 consanguinity, some of whom claim through an intermediate ancestor, it 
 points out how the distribution shall be made among them. By it 
 all those who stand in same degree nearest to the ancestor in consan- 
 guinity take per capita, but those who take as representatives of one 
 who was in that degree, but now a deceased ancestor, shall take the 
 share of such deceased ancestor per stirpes.* And it is also provided 
 that, in making such distribution of the residue of the estate, where 
 such decedent in his lifetiihe had made an advancement to such heir or 
 next of kin, the same shall be taken into consideration as part of the 
 estate in the distribution. 
 
 § 25. In determining who are heirs and next of kin, the statute fur- 
 
 ' Inheritance and dower are not taken into consideration in the distribution. 
 
 2 Stat. March 14, 1853, ? 2. 
 
 5 See Statute, 1 Swan, etc., and ante, B. ii. ch. v. J 16-26 Title by operation 
 of law. 
 
 •As to the application of the rule of per capita and per stirpes, sea ante, book 
 ii. ch. V. g 16, etc., and Ewers vs Pollen, 9 0. S. K. 327. 
 
254 PRIVATE LAW. [book ii. 
 
 ther provides that no person shall be deprived of his inheritance by- 
 reason of any of his ancestors having been aliens; and that bastards 
 shall be capable of inheriting and transmitting inheritance on the part 
 of the mother, in like manner as if they had been born in lawful 
 wedlock. 
 
 §26. Secondly, the distribution may be modified or entirely super- 
 seded by the will, if there be any, for a person has the right, by his 
 will, to bestow his property upon whom he will, after his debts are 
 satisfied, except as to such restraints as the law puts upon him in favor 
 of his wife and children. It is the duty of the executor or administra- 
 tor, as soon as he caa safely do so, after the debts and expenses are 
 paid, to see that the legacies are discharged and satisfied, whether such 
 legacy be specific, or to be paid out of the residuum, so that they are 
 paid according to their several priority of claims, in case there are any 
 doubts as to the ability of the estate to pay all. If the legacies ex- 
 haust the estate, there will be no general distribution. 
 
 § 27. When there is a will, and the testator has left a widow, there 
 are steps to be observed which do not occur when there is no widow. 
 The law jealously guards the rights of the widow ; and although the 
 law permits a person, by his will, to deprive an heir of his expectancy 
 in his property, it is otherwise as to the widow. She is entitled, in 
 the first place, to all the law provides for her upon the appraisement 
 and inventory of the estate, without regard as to what the will con- 
 tains, or whether the estate is solvent or insolvent. The statute pro- 
 vides that the widow shall be cited to appear in the probate court, and 
 within one year make her election whether to take her rights under the 
 will, or according to law without the will. In case she chooses not to 
 take under the will, or neglects or refuses to make such election, she 
 shall retain her dower, and such share of the personal estate as she 
 would be entitled to by law in case her husband died intestate, leaving 
 children. If she elect to take under the will, she will be barred of her 
 dower, and take under the will alone, unless it plainly appeared by the 
 will that it was the intention that she should have both. In case, there- 
 fore, that the widow finds that the will makes an inadequate provision 
 for her, she may obviate the injustice by refusing or neglecting to make 
 her election to take under the will ; and in that event she will take 
 her dower and such share of the personal estate as she would have 
 been entitled to in case the husband died intestate, leaving children. 
 In that event the amount to be paid the widow may reduce the amount 
 of the legacies, and they be compelled to contribute for that purpose. 
 
 § 28. The executor or administrator should settle with the court within 
 eighteen months from the date of the letters, at any time after the ex- 
 piration of the one year allowed the creditors to present their claims, 
 and ascertain by such settlement what amount remains in his bands of 
 
CHAP, rx.] CONTRACTS IN GENERAL. 255 
 
 the assets, after paying claims, the expenses of the administration, and 
 the special legacies. This settlement should correctly determine the 
 share to be paid the widow and legatees, and ascertain the residuum 
 and distributive shares to be paid to the next of kin or heirs, who by 
 our laws are the same persons. Before the residuum is distributed, 
 the executor or administrator should not only see that the widow's 
 portion is duly provided for her, which, in some instances, may reduce 
 the amount due on the legacies, but see if some of the legacies are not 
 to be taken into the account as advancements, which will depend upon 
 the construction and intention of the will. 
 
 CHAPTER IX. 
 
 CONTRACTS IN GENERAL. 
 
 § 1. Contracts are often made the foundation of all rights and all 
 duties; and hence some have deduced all the obligations and duties of 
 human life, or, as expressed by the jurists of the civil law, from pacts 
 and compacts. All the rights of personal property, says Blackstone, 
 in great measure depend upon contracts of one kind or other, which is 
 the method taken by the civil law in referring the greatest part of the 
 duties and rights it treats of to the head of obligations ex contractu 
 and quasi ex contractu} In considering title by contracts, it will be 
 necessary, first to treat of contracts in general, and then of various 
 enumerated contracts. In treating of contracts in general, shall be 
 considered — I. The nature and requisites of a contract; II. The per- 
 formance of the contract; and III. The means and manner of enforcing 
 the contract. Under the first head shall be considered, — 1, the nature 
 and classification of contracts ; 2, the necessary consideration ; 3, the 
 parties capable of contracting ; and 4, the subject-matter of the con- 
 tract. 
 
 I. THE NATURE AND REQUISITES OF CONTRACT. 
 
 § 2. 1. The nature and classification of contracts. A contract is a 
 promise, upon sufficient consideration, to do or not to do a particular 
 thing.'' According to the common law, the consideration of a contract 
 
 1 2 Stephens's Com. 112; 2 Blaokst. Com. 416 ; 1 Parsons on Cont. 2. 
 
 2 1 Parsons on Cont. 5 and 6, and notes. The consideration should be a material 
 part of the definition of contract. It is essential that every contract should be 
 considered and be the deliberate act of the mind. The consideration is the evi- 
 dence of it ; and the name has been transferred from the act of the mind to that 
 which- is the evidence of it. 
 
256 PRIVATE LAW. [book ii. 
 
 was a very important part of it, for in all contracts the law had to be 
 satisfied that the parties' had considered the matter, and that their 
 minds had been maturely drawn together, and concur upon the subject 
 of the contract; for otherwise it might be an inconsiderate promise. 
 Where the terms of the contract had been reduced to writing and 
 sealed by the parties, the consideration was admitted by the necessary 
 deliberation and solemnity of the act. The law from hence presumed 
 it to have been founded upon a sufficient consideration. 
 
 ■§ 3. The common law writers classify all contracts as either contract 
 by specialty or contract by parol. With them, contracts reduced to 
 writing and sealed were specialties, and all else were contracts by parol 
 or simple contracts, whether made by a written or oral agreement. 
 They tolerated no distinction of simple contracts into written and oral 
 contracts. If the contract were under seal, then the language was 
 contract by specialty or by deed, and the instrument was called writing 
 obligatory, and whatever was promised by it, a covenant or obligation; 
 but when the contract was by a writing not under seal, their language 
 in relation to it was entirely changed, for it was then a mere contract 
 by parol — a simple contract — a promise or agreement in the same class 
 as any oral contract. But in this country, where most of the business 
 is done by written contracts not under seal, where the seal is looked 
 upon as of so little consequence, except in some special instances re- 
 quired by positive law, — as deeds of conveyances and the like, — and 
 the writing itself of so much more importance than a mere oral contract ; 
 and where the legislature also has in so many instances made positive 
 distinction between a promise in writing and that which was not re- 
 duced to writing ; it is difficult to conceive how well to avoid the dis- 
 tinction of contracts into three classes, — contract by deed or specialty ; 
 contract by writing, not under seal, or simple written contract ; and 
 contract by oral agreement. The tendency, both in England and this 
 country, is to acknowledge this classification of contracts.' 
 
 § 4. As a general principle, a contract can be made between the 
 parties in either of the three ways ; it may be made orally, or it may 
 be reduced to writing and signed by the parties, or it may be by their 
 signing and sealing it. Where the contract has the requisite parties 
 and consideration, it has equal efficacy, for the time being, made in 
 either of the three ways, except in a few instances, where the law by 
 positive enactments requires a writing or a deed to the exclusion of an 
 oral contract. The principal instances where the statutes of Ohio re- 
 
 1 See 1 Parsons on Cont. 8, nnd notes e, f, and g. Lord Ellenborough has said 
 that to incorporate with a written contract an incongruous parol condition is 
 contrary to first principles. 
 
CHAP. IX.] CONTRACTS IN GENERAL. 2bl 
 
 quire the contract to be in writing, or to be executed in a particular 
 manner, in order to be effectual in law, are the following : 1. Any 
 special promise to answer for the debt, default, or miscarriage of another 
 person. 2. Any special promi.'ie to charge an executor or administrator 
 to answer damages out of his own estate. 3. To charge any person 
 upon an agreement made upon consideration of marriage. 4. Upon any 
 contract or sale of land, tenements, or hereditaments, or any interest 
 in or concerning them. 5. Any agreement that is not to be performed 
 within the space of one year from the making the contract. In these 
 cases the statute declares that no action shall be brought to charge 
 the defendant, unless the agreement, or some memorandum or note 
 thereof, shall be in writing, signed by the person to be charged, or some 
 one by such person authorized.' 6. No lease, estate, or interest in 
 lands or tenements, shall be assigned or granted, unless it be by deed, 
 or note in writing, signed by the party or his agent authorized in writ- 
 ing, or by act or operation of law. 7. All conveyance, mortgage, or 
 lease of lands and tenements (except leases not over three years) must 
 be by deed, signed and sealed by the party, attested by two witnesses, 
 and then acknowledged by the grantor before an authorized officer, or 
 such grant, contract, or lease will not be operative as such. These are 
 the principal instances where our statutes interfere with the law of con- 
 tract, and direct the mode or manner of their execution. In these cases 
 the contract is inoperative where it does not come within the terms of 
 the statute. 
 
 § 5. Contracts are said to be either expressed or implied. Express 
 contracts are those by which the parties by the open and avowed terms 
 of their agreement have determined and expressed the matter they have 
 agreed upon. Implied contracts are such as reason and justice dictate 
 from consideration of the circumstances of the case, and which, there- 
 fore, the law presumes that every man undertakes to perform. It often 
 arises from a construction of the law, and from those obligations that 
 the law imposes upon any one ; for the law in general implies that every 
 person promises to perform that which is considered he ought to do. 
 As where a person has procured from another any property, labor, or 
 benefit, the law will presume and imply a promise on his part that he 
 will pay for the same what it was worth, or what he reasonably deserved. 
 The instances where such implied promises will be raised are very 
 numerous, extending over the whole transaction of human affairs; and 
 although such promises are generally not implied, except where the 
 benefit was conferred at the instance or request of the person who re- 
 ceives them, yet, in most instances, the request will also be implied from 
 
 ■See the statute against fraud and perjuries of February 19, 1860. 
 
 n 
 
258 PRIVATE LAW. [book ii. 
 
 the circumstances and obligations on the person benefited, unless re- 
 pelled by the evidence.' 
 
 § 6. Where there is an express promise, the law does not raise an 
 implied one in reference to the same njatter ; and wherever there is a 
 writing containing the terms of the contract, that will exclude all parol 
 evidence to increase, or diminish the contract ; for to admit such evi- 
 dence would render written contract of no more account or authority 
 than oral contracts. As where the rent of a house specified in a written 
 agreement to be a certain sum, in an action for the use and occupation 
 of the house, parol evidence, to prove that the tenant had also agreed 
 to pay certain ground-rent or assessments, was excluded.^ 
 
 § 7. But many promises and stipulations are necessarily implied, and 
 taken as a part even of written contracts ; for the law implies that every 
 one promises to perform whatever is necessary, in honesty and good 
 faith, to fulfill his express stipulations. When a person in his line of 
 business contracts to do a particular thing, it is implied that he promises 
 to do it in good faith and in a skillful manner. So if a mechanic con- 
 tract to build a house, there is an implied promise on his part that he 
 will do his job in good faith, and in a workman-like manner.^ And so 
 of a farmer who rents a farm, that he will cultivate it in a farmer-like 
 manner, and in accordance with the custom of the country. 
 
 § 8. These instances of implied promises may be restricted or limited 
 by some partial stipulation upon the same subject. For the court will ' 
 not by inference insert in a contract implied provisions with respect to 
 a subject which the contract has expressly provided for ; as in the sale 
 of provisions there is an implied warranty that it is wholesome, yet if 
 there is an express warranty that it is wholesome in one particular, it 
 would probably exclude an implied warranty in any other particular, 
 though it would have been included in an implied warranty if there had 
 none been expressed.* This would be upon the maxim ea-pressio unius 
 exclusio alterius. Although the law in all contracts requires honesty 
 and good faith, yet, in matters not contrary to public policy or morals, , 
 or against positive laws, the parties, in their contract, may stipulate 
 
 ' Where necessaries have been furnished to the wife and children, the authority 
 nnd request will be ordinarily implied ; but the husband may rebut the presump- 
 tion by showing a special prohibition to the particular tradesman. Bac. Abr. 489. 
 Title Baron and Feme (H.) Lord Hale's opinion ; Wilson's ed. 
 
 2 Broom Max. 586. 
 
 3 Rogers vs. Niles, 11 0. S. E. 349. A strong case of implied promise is that, 
 where a purchaser of an incumbered estate agrees to take it subject to the incum- 
 brance, with an abatement in the price on that account, he is bound to indemnify 
 the grantor against the incumbrance, whether expressly promised or not — a 
 promise to that effect being implied from the nature of the transaction. See 
 Thompson vs. Thompson, 4 0. S. R. 349; Oxford vs. Rodney, 14 Ves. Jr. 423. 
 
 * Broom's Legal Max. 586. 
 
GHAP. IX.] CONTRACTS IN GENERAL. 259 
 
 to waive, forego, or release what otherwise might be the party's legal 
 rights by the contracts ; and this upon the maxim modus et convenlio 
 vivcunt leges. 
 
 § 9. Contracts may be further distinguished into those which are 
 executed, and those which are executory. This distinction is very 
 obvious. A sale of any property accompanied with a delivery and pay- 
 ment of the price, is a contract executed; but an agreement for the pur- 
 chase or sale of anything at a future day, is an executory contract. 
 Where some of the stipulations of a contract are performed at the time 
 of making the agreement, and others are to be performed at a future day, 
 the contract is partly executed and partly executory ; and where an act 
 is done by a party in pursuance of an executory contract, and with a view 
 to its performance, it is called a part performance ; which, if assented 
 to by the other party, gives a confirmation to the contract, and adds to 
 it a validity, in many cases, that it would not otherwise have had, 
 especially in cases where otherwise it would have been void under the 
 statute of frauds, because it was not reduced to writing. 
 
 § 10. The promises or stipulation of a contract may be considered as 
 either absolute or made upon a condition, or dependent upon a contin- 
 gency. A promissory note is an instance of the first, being for the pay- 
 ment of a certain sum of money, at a specified time, and dependent 
 upon no contingency. A policy of insurance is an instance of the 
 second, being for the payment of a sum of money upon the happening 
 of a contingency. So is a bond conditioned for the payment of a less 
 sum of money, or for the performance of some other act, or a mort- 
 gage ; these are all instances of a conditional contract. Where one of 
 the parties has become liable to an action, or to sustain a forfeiture, on 
 the account of his non-precise performance of a conditional contract, 
 and likely thereby to sustain great injury, courts of equity have usually 
 granted relief from the forfeiture, upon reasonable excuse for the breach 
 or non-performance of the condition, and upon reasonable terms of 
 making good all loses occurring by the failure to perform the condition 
 of his positive agreement. And although courts of law usually require 
 strict compliance with the terms of the contract, even as to conditions 
 and forfeitures, yet they have, in a large class of cases, relieved from 
 the consequences of a failure of compliance with the strict performance 
 of a condition, or a forfeiture. Thus, where the condition was the pay- 
 ment of a smaller sum by a certain day, in discharge of a larger sum 
 of money, courts of law Lave relieved from the consequence of a failure 
 to perform the condition precisely by considering the larger sum as 
 only a penalty held in terrorem to enforce the payment of the smaller 
 sum, as the real sum due, and for which only they would render judgment. 
 
 § 11. A contract may be obligatory and, valid, or it may be void or 
 voidable and invalid. A contract is said to be obligatory and valid 
 
260 PRIVATE LAW. [book ir. 
 
 where the parties are bound in law to perform its stipulations, and is 
 such as the courts will enforce by an action at law. But a contract is 
 said to be void or voidable and invalid when it fails to possess those, 
 requisites which the law requires to constitute a valid contract, either 
 in its formation or its subject matter, or when its character has become 
 80 tainted with what is illegal that it connot be enforced in a court of 
 justice. An invalid contract may be said to be either void or voidable. 
 It is void when it fails to possess some of those fundamental requisites 
 which the law deems essential to constitute a valid contract, or whea 
 it is so contaminated withi what is unlawful, that the courts will not in 
 any manner aid in their execution. But a voidable contract is such 
 as may have in it such a defect or objection as the law holds voidable 
 for the protection of the party, and which he may either insist upon, or 
 he may waive, and afterward ratify and confirm. A void contract can- 
 not be afterward ratified and confirmed; but a voidable one may, at the 
 option of the party. 
 
 § 12. Another distinction exists in relation to contracts arising out 
 of requisites imposed upon certain classes of contracts by statutes. As 
 a general rule, contracts are not required to be in writing. In most 
 of the transactions of human life parol contracts are as effectively 
 binding upon the parties as though in writing, only they are more sub- 
 ject to be misunderstood, and the evidence of them more liable to be 
 lost or perverted. But the statutes, for various reasons, require that 
 certain contracts should be in writing, and that others should be by a 
 deed under seal. These may, in general terms, be classified as the 
 statutes against fraud and perjury ; statutes in relation to the execution of 
 deeds of conveyance and mortgages of land ; statutes in relation to mort- 
 gages of personal property ; and the statutes in relation to the inden- 
 tures of apprentices. All these require the subject-matters to which they 
 refer to be executed in the particular manner by the statute pointed out. 
 
 § 13. 2. The necessary consideration. In order that a contract 
 should be valid, it is necessary that the minds of the parties should 
 have considered the matter and have mutually agreed upon it. For this 
 purpose it is necessary, in all contracts that are not evidenced by the 
 solemnity of a deed, should be founded upon what in law is called the 
 connideration. By this term is meant some compensation or quid pro 
 quo, to be reciprocally afforded or returned by the other party to ihe 
 contract, as evidence that it was not a mere inconsiderate promise, — as 
 where one, in consideration of certain service to be rendered him, prom- 
 ises to pay therefor ten dollars ; but if without any reference to such 
 service or consideration, such a promise were made, the promise would 
 be void, for the want of a consideration. However a person might feel 
 himself bound to perform such a contract, in law the courts will not 
 -enforce their performance, because it is considered that from such in- 
 
CHAP. IX.] CONTRACTS IN GENERAL. 2G1 
 
 considerate promise no liability can arise, as expressed in the civil law, 
 ex nudo paclo non oritur actio. But any degree of reciprocity, either 
 by the way of beneBt conferred by the promisee, or of disadvantage 
 sustained by him, will be sufficient to sustain the consideration and the 
 validity of the contract on that account. 
 
 § 14. But if there is a consideration, and it be not illegal, it is by no 
 means necessary that it should be adequate in order to sustain its 
 validity. The value of it is but little regarded in law, for every one, 
 upon full deliberation, is at liberty to dispose of that which is his 
 own as he pleases, and at his own estimation ; and the court will not 
 inquire whether the price or consideration was adequate or not. Thus, 
 if a person, in consideration of a hat received, or to be received, promises 
 another to deliver him a certain horse (perhaps a hundred times the value 
 of the hat), the consideration would be good, and the promise binding, for 
 the law does not notice the relative value of things that are not stamped 
 by law with a certiiin value. But it would be otherwi.se if a person, in 
 consideration of $5, promises at a future day to pay $100, for the law 
 docs notice the legal value of money, and must be governed by it accord- 
 ingly. The student will readily be able to perceive, from what is here 
 said, that one promise may be a good consideration for another; and that 
 mutual promises, on the part of both of the parties to a contract, to each 
 other, will Ix) a suflSeient consideration to sustain the promise on the 
 part of each. 
 
 § 15. In determining the sufficiency of a consideration, it is necessary 
 to consider whether it is executed or executor^/, in relation to the point 
 of time it bears to the promise, as being prior or sul)sequent, for a past 
 and terminated matter cannot be the consideration for a new promise. 
 Thus, if I guaranty the payment of A's note at the same time it is 
 given, and in con.sideration of the credit then given to A, the copsidera- 
 tion is executory, and sufficient to bind the guaranty. But if subse- 
 quent to the execution of the note and credit given I voluntarily and 
 without any new consideration guaranty the payment, the considera- 
 tion is executed and past, and will not support the new promise. So, 
 if I promisee to pay for the work done for a friend, the promise is invalid, 
 but if the promise is made in consideration that the payee proceeds to 
 finish the work, or gives a further or new credit, the new promise is 
 sustained by an executory and sufficient consideration. 
 
 § 16. A moral obligation is sometimes a sufficient consideration upon 
 which to found a new promise, as where a person, after he arrives of age, 
 promises to repay the money which he received while a minor, or to pay 
 an old debt that is barred by the statute of limitation or bankruptcy. 
 But such promises are frequently interfered with by statutes, which re- 
 quire such promises to be in writing, but when in writing, the consid- 
 eration is sufficient to sustain it. Where a consideration may bo neces- 
 
262 PBIVATE LAW. [booku; 
 
 sary to sustain an executed contract, as a gift or transfer of property, a; 
 Consideration founded upon natural love and affection is said to be a 
 good one, but it is not considered sufficient to sustain a new executory 
 promise, as a promise to pay a certain sum to a son or daughter or other 
 blood relative as an advancement, gratuity, or otherwise. It is also a 
 rule that the consideration of the promise must viove from the promisee, 
 or must proceed from his procurement or sufferance, and not that of a 
 stranger ; but the promise may be made for the benefit and use of a 
 stranger, as where A, upon a sufficient consideration passing between 
 them, promises to B that he will pay C a certain sum of money at a 
 specified time, it seems from some authorities that C cannot maintain 
 an action upon the promise in his own naine, unless he had an interest 
 in the original consideration, so that B, in some measure, is acting as 
 agent for C 
 
 §17. 3. The parlies capable of contracting. In order that a con- 
 tract should be valid, it is necessary that the parties to it should have 
 the capacity in law of entering into a contract. The general rule is, 
 that all persons are capable of making a contract ; the exceptions to it 
 are in favor of such persons as are in law supposed to be in want of suf- 
 ficient mind or freedom of action. They may be classed — 1, infancy ; 
 2, coverture ; 3, insanity ; and 4, duress. These objections to the va- 
 lidity of a contract, and upon which its performance may be resisted, 
 are all founded upon the want of sufficient capacity of mind to give its 
 assent to contract, or the want of sufficient freedom to enable it to do so. 
 
 §18. (1) The contracts of infants are generally voidable, except 
 for necessaries, which include all such things as would be proper 
 for them to have, according to their fortune and social position, for 
 their support and education.^ If the infant has a family, he is bound, 
 like other persons, to provide for them ; and whatever are necessaries 
 for his wife and children are necessaries for him. And although his 
 contracts for articles procured only with a view to a marriage will be 
 treated like other contracts not for necessaries, yet, when the relation of 
 marriage actually and legally exist, the obligation of an infant to that 
 
 1 Parsons on Cont. 389. The author considered the law well settled that where 
 A, on a valid consideration, promised B to pay C a sum of money, C might 
 recover it in an action in his own name. This proposition is so settled in numer- 
 ous cases. See Krumbaugh vs. Kugler, 8 0. S. K. 549; Thompson vs. Thomp- 
 son, 4 0. S. K. 353 I Bagaley vs. Waters, 7 0. S. K. 366 ; Whorewood vs. Shaw, 
 Yelv. K. 25; -Schemerhorn vs. Vanderheyden, 1 John. K. 139. But after seeing 
 1 Parsons's Cont. 389 and n. he hesitated to so state it. See, also, 1 Chitty's PI. 
 4 and 6 and notes. 
 
 2 Infancy at common law continues until twenty-one years of age. In Ohio, 
 until males are twenty-one and females eighteen years of age. Infancy termi- 
 nates at the beginning of the last day of ihe last year. See Parent and Child, 
 Parsons's Cont. 242. 
 
CHAP. IX.] CONTRACTS IN GENERAL. 263 
 
 relation will be treated as in other cases. The rule which enables an 
 infant to contract for necessaries is for his benefit, and to enable him 
 to sustain himself, for otherwise he might suffer. The general "rule 
 as to all his contracts, not within this exception, is that they are voida- 
 ble — not void ; and that he may during his minority, or within a rea- 
 sonable time after he comes of age, disaffirm and avoid such contract. 
 The rule that an infant's contract may be avoided is so established for 
 his protection and benefit, and cannot be claimed by others for their 
 own advantage. There are ji few instances where the contract of an in- 
 fant has been declared void, as a power of attorney to convey, to confess 
 judgment, and the like, where it is said the court can see and declare it 
 to be to the prejudice of the infant.^ 
 
 § 19. (2) The inability of married women to enter into contracts in 
 general, on account of the coverture, is also for their protection, and 
 their contracts are held not merely voidable, but void. A woman may, 
 however, under an express or implied authority of the husband, enter into 
 contracts as his agent. Where she contracts for necessaries for herself 
 and family, the authority of the husband will be presumed, unless 
 clearly rebutted under reasonable circumstances ; and by his authority 
 she may act as his general agent. Promises made to her upon a suffi- 
 cient consideration may be enforced for her benefit, or that of her hus- 
 band, and she may have a separate property, which will be protected 
 and managed in equity. So she may, also, in certain cases, under our 
 statute regulating divorce and alimony, obtain an order and decree of 
 the court, on the grounds of the abuse of the husband, by which she 
 may contract and manage her affairs as a, feme sole.'' 
 
 § 20. (3) Insanity is also an objection to the validity of a contract. 
 From the very nature of a contract, in order that a person should be 
 bound by it, he must have such soundness of mind as to be able to un- 
 derstand and comprehend what he is doing. There are various degrees 
 of unsound mind, as idiocy, lunacy, and various degrees of mental 
 weakness. Those who are so affiicted as to be unable to enter into a 
 valid contract, have generally been denominated in law as non compos 
 mentis ; which, in order to affect the validity of a contract, must not be 
 mere weakness of mind so that it has understanding, but must be an 
 actual derangement of mind. 
 
 § 21. The contract of an idiot must, of course, be absolutely void, 
 for it is no contract at all in law. A lunatic may have lucid intervals, 
 when his contracts, then made, must be valid. When the lunacy is 
 
 1 Parsons on Cont. 243 ; Lawrence vs. MeArter, 10 O. E. 37. See Deeds, and 
 Parent and Child. 
 
 2 See the Statutes of April 3, 1861, and March 23, 1866, S. and S. 389 and 91, 
 enabling a feme covert to hold separate property and enter into contracts in certain 
 cases. 
 
264 PBIVATE LAW. [book ii. 
 
 once established in relation to the contract, the burden is thrown upon 
 him who would sustain the contract, to prove its execution was during 
 sucli lucid intervals. But whenever the execution of the contract is 
 tainted with the question of lunacy, or weakness of mind, it is always 
 suliject to be held as invalid, as being obtained by undue means or 
 fraud, unless its fairness and good faith are clearly maintained.^ 
 
 8 22. (4) Another objection to the validity of a contract is, that it 
 was procured by duress or /raud. When a contract is procured by 
 compulsion it is void, for the reason that thp voluntary consent of the 
 party is of the essence of a contract. Such compulsion, effected by 
 either actual violence or threats, is what in law is termed duress. 
 Upon similar principles a contract procured by fraud or gross misrep- 
 resentation, which may be done either by suggesting a falsehood or 
 by suppressing the truth, and thereby producing a false impression, 
 will be equally vitiated and rendered void. Fraud is what the law 
 abhors, and holds whatever contract is contaminated with it to be 
 invalid and void.^ A bad bargain, or mere inadequacy of price, will 
 not, ordinarily, vitiate a contract; but these circumstances may be so 
 gross, or attended with unconscionable circumstances of unfairness, as 
 amount to evidence of fraud, and on that ground the contractor may be 
 entitled to relief 
 
 § 23. 4. The suhject-maUer of Ihe contract. The subject-matter of 
 a contract is something to be done or omitted to be done. It is not 
 intended here to enumerate and classify the various subject-matters to 
 which a contract is usually applied,^ but to consider the subject with 
 reference to its tendency to render the contract legal or illegal. Gener- 
 ally speaking, the law permits the parlies to contract about any and all 
 matters they choose, but to this there are several exceptions, founded 
 upon public policy and public welfare. The law will not sustain a con- 
 tract that is contrary to public interest. In this respect the validity of 
 a contract may be objected to on the ground of the following classes of 
 objections : 1, that it is immoral ; 2, impolitic ; and 3, illegal. 
 
 § 24. Whenever the contract, or the consideration of it, is immoral, 
 as licentious or ofl'ensive to public decency, it will be considered as 
 void ;' and, however varnished over, courts will brush away the gloss, 
 and bring them out in their true light, and treat them accordingly. The 
 maxim is, "you shall not stipulate for iniquity," and, ex turpi causa 
 nun oritur actio. 
 
 ' See the head " Deeds" as to non compos, ante, ch. vi.; 1 Parsons's Cont. 310; 
 2 Stephens's Com ooO. 
 
 2 Uroom's Miixims, C57, 6G7. 
 
 » This is done in some of the following chapters, — Sale and Exchange, Bail- 
 ment, Negotiable Paper, Insurance, etc. 
 
 « Broom's Max. 658. 
 
CHAP. IX.] CONTRACTS IN GENERAL. 265 
 
 § 25. (2) Nor will a contract be sustained that is against public policy 
 or contrary to the public welfare. Of this class are contracts in re- 
 straint of trade or marriage, or to induce an officer to swerve from his 
 public duty by promising something more than his legal fees, or to in- 
 terfere with the true and natural course of justice, as under the promise 
 of carrying on a litigation at one's own risk and expense, — the parties 
 are restrained from compromising the case.' 
 
 § 26. (3) Whenever the subject-matter of the contract or the consid- 
 eration is illegal, — contrary to law, — whether its illegality depends upon 
 a statute or the common law, the contract is wholly void. This is the 
 general rule; but it is said that if one gives a good and valid considera- 
 tion, and the other promises to do two things, one legal and the other 
 illegal, he shall be held to do that which is legal, unless the two are so 
 mingled and bound together that they cannot be separated, in which 
 case the whole promise is void ;^ and it should bo added, that it must 
 not be such a cast of illegality as would stamp the whole transaction 
 with turpitude. Whatever the statute prohibits or punishes, — what- 
 ever the statute or the common law holds to be contrary to the public 
 good, is illegal, and will vitiate a contract. The courts, however, in 
 some cases have made a distinction between those cases that were 
 merely malum prohibitum, and involved no moral turpitude, and such 
 acts a§ were malum in se. Thus, where a statute subjected any per- 
 son to a penalty who sold a town lot before he had the town plotted 
 and recorded, the court held that a contract for the sale of a town lot 
 before the plot was so recorded, was not invalid.' 
 
 § 27. The rule as to the action of the court as to illegal contracts is 
 this : whenever an agreement appears to be illegal, immoral, against 
 public policy, or opposed to the criminal prohibitions of the State, a 
 court of justice leaves the parlies as it finds them. If the agreement be 
 executed, the court will not rescind it; if executory, the court will not 
 aid in its execution. Hence, where a father and son join in giving a 
 promissory note, in consideration that the payee would abstain from 
 prosecuting the son for larceny, and would not appear in a court of jus 
 tice as a witness against him, the payee cannot recover on such instru- 
 ment. Nor will it make any diflerence that when the note was given 
 no prosecution had been commenced. But where a mortgage was 
 given to secure the payment of this same note, the mortgagee was per- 
 mitted to recover the mortgaged premises in an action of ejectment, 
 upon the ground that the mortgage was a transfer of the fee from the 
 mortgagor to the mortgagee, and therefore the court found the title in 
 the mortgagee by the act of the parties, subject to the redemption. The 
 
 1 Key vs. Vattier, 1 0. E. 143 ; Weakly vs. UM, 13 0. R. 175. 
 
 " 1 Parsons's Cont. 381. ' Strong vs. Darling, 9 0. K. 201. 
 
266 PRIVATE LAW. [book ii. 
 
 court, therefore, left the parties as it found them, but who had the pro- 
 tection of the court in securing their vested rights, just as the parties had 
 actually transferred them from one to the other. The courts, therefore, 
 will protect rights actually acquired and transferred, but will not aid 
 in recovering upon an illegal executory contract. 
 
 II. THE PEEPOEMANCB OP THE CONTKAOT. 
 
 § 28. A valid contract must be performed in accordance with the 
 stipulations of the contract itself. Where there is any question as to 
 what is to be performed under the contract, the rule is, the intention of 
 the parties, as deduced from their agreement, must govern ; and courts 
 have gone far to put a forced construction upon its strict letter, for the 
 purpose of carrying into effect what was considered to be the real in- 
 tention of the parties. At law the contract must be strictly performed 
 according to the true intent and meaning of the parties, as disclosed by 
 the contract and the circumstances. If by fraud, mistake, or accident, 
 the contract is drawn up different from the meaning and intention of 
 the parties, in a material matter, upon a proper application to a court 
 of equity, it may be reformed ; or if, by any similar means, the execu- 
 tion or performance of the contract has been prevented without a will- 
 ful fault on the part of the applicant, a court of equity, upon equitable 
 terms', may grant relief. But otherwise the contract legally entered into 
 must be performed as the parties, by its own terms, have determined. 
 
 § 29. Wliere the words of the instrument are free from ambiguity, 
 and external circumstances creating no doubt or difficulty, the contract 
 must be construed according to the plain, common meaning of the words 
 themselves ; and parol evidence to show that the agreement was in 
 reality different from that which it purports to be, or evidence dehors 
 the instrument, for the purpose of explaining it according to the as- 
 sumed or alleged intention of the parties, is utterly inadmissible. But 
 the meaning of the parties must be gathered from the whole instrument 
 taken together ; and where it refers to other instruments as part of it, 
 or where a number of instruments executed at the same time as parts 
 of the same transaction, the whole should be considered in ascertaining 
 the meaning and intention of the parties. 
 
 § 80 There may be two kinds of ambiguity occurring in written in- 
 Btruuients, — the one termed amhiguitas patens, and the other ambiguilas 
 Mens ' The first is where the ambiguity appears on the face and read- 
 ing (if the instrument itself. This kind of ambiguity cannot be helped 
 at law, even if the only construction that could be put upon it be en- 
 tirely different from the alleged intentions of the parties ; or the coQrt 
 compelled to hold it void for uncertainty or want of any certain legal 
 
 ' Broom's Max. 541. 
 
CHAP. IX.] CONTRACTS IN GENERAL. 267 
 
 meaning. But latent ambiguity does not appear upon reading the in- 
 strument, but arises from what otherwise appears in the case or the 
 allegations of the parties, — as where the contractor promises to deliver 
 to John Doe a certain property, or promises to convey to another his 
 farm in Radnor, and it appears, in the first case, that there are two 
 John Does, and, in the second case, that the contractor has two farms 
 in Radnor; in such cases evidence is admissible for the purpose of 
 showing which of two things or subjects thus rendered doubtful was 
 meant by the parties in their agreement and now to be performed. 
 
 § 31. Analogous to these rules is the further rule that where doubt 
 arises upon the true sense and meaning of the words themselves, or 
 diffiLulty as to their application under the surrounding circumstances, 
 the sense and meaning of the language may be investigated and ascer- 
 tained by evidence, to enable the court and jury to fix the meaning of 
 the parties to the words used under the circumstances.^ These instances 
 may be used as illustrations here: 1st, where foreign language is used 
 it may be translated and its meaning explained ; 2d, ancient words 
 may be explained by contemporaneous usage ; 3d, if it be a mercantile 
 contract, the meaning of the terms may be ascertained as accepted 
 among merchants ; 4th, technical terms of art should be explained and 
 their meaning ascertained by evidence of persons skilled in the art to 
 which they refer. 
 
 § 32. Every person should perform his promise in the sense in which 
 the other party had a right to understand it at the time it was made. 
 If the contract is susceptible of construction in more ways than one, 
 that must be adopted which is the most reasonable and just ; or that 
 which is the most consistent with law and honesty; or that which 
 would best promote the object and honest intention of the parties. As 
 a general rule, the parties are supposed to contract with reference to 
 the laws of the place where made, unless it appears that the parties 
 had in contemplation the law of a different place, — and should be per- 
 formed accordingly, though more onerous than where performed. 
 
 § 33. The performance of a contract by one party may be dependent 
 upon the reciprocal promises or covenants of the other ; or it may be an 
 independent promise, where the consideration is past, and the contractor 
 has only to perform or offer to perform his obligations, and the other 
 party nothing to do but to receive what has been promised him. But 
 contracts may be, and frequent ly are, dependent upon what is promised 
 mutually by each party to the other. It then becomes a question how 
 far the performance of one is dependent upon, or is a condition prece- 
 dent to, a performance by the other. For. the purpose of ascertaining 
 when the promises are independent of each other, or mutually dependent, 
 
 ' Broom's Max. 554. 
 
268 PRIVATE LAW. [book ii. 
 
 or the one a condition precedent to the performance of the other, courts 
 have established these rules and classification: 1, such as are viutual 
 and independent, where either party is entitled to performance by the 
 other, without reference to his own performance ; and where it is no 
 excuse for one to allege the breach or non-performance of what is 
 promised or covenanted by the other ; 2, such as are conditions de- 
 pendent on each other, or the one must be performed precedent to a 
 claim of the performance of the other ; and 3, such as are muiual and 
 concurrent to be performed at the same time, and if one party was ready 
 and oflfered to perform his part, and the other neglected or refused, he 
 who was ready and offered, has fulfilled his engagement, and may main- 
 tain an action for the default, though it is not certain that either is 
 obliged to do the first act. 
 
 § 34. Although at times there may be much difficulty in a.scertaining 
 whether the promises or covenants are independent or dependent, still 
 the same rules must be adopted, as in the construction of written in.stru- 
 ments in other respects. The intention of the parties must govern, and 
 that intention must be collected from the whole instrument taken to- 
 gether. The order of time in which' the several acts were to be per- 
 formed will show the intent of the transaction. If, upon the whole, it 
 should appear to be the intention of the parties to trust each, to the 
 personal security of the other, the promises must be considered as inde- 
 pendent. But where the promises are to be performed at the same time, 
 or where one promise is for, or in consideration of the other, ami the 
 performance is not separated, they must be considered as dependent a-nd 
 concurrent promises to be performed at the same time — neither giving 
 credit to the other. When the promise is to do something upon the 
 perforujance or completion of something by the other, then it is a de- 
 pendent and conditional promise, not to be claimed until the party can 
 aver that he has performed his prior promise ; as where one has promised 
 to build a house for another, and the other promises to hiia therefor a 
 certain sura of money when the job is finished. Uere the pay is not 
 due until the job is finished, and no action can be sustained iherefor 
 without alleging and proving that the job has been performed. 
 
 %'ih. In the performance of a contract there is sometimes difficulty 
 in determining what is to be done, on the account that one of two things 
 is to be done in the alternative, and it is uncertain which is to be per- 
 formed As in all other cases, the intention of the parties must govern, 
 if that can be gathered from the contract. But if the intention of the 
 parties is left undetermined, the rule then is, that in alternate contracts 
 or promises, where either one of two things maybe done in performance 
 of the contract, he who is to do the first act toward its performance is 
 to have the election which to do. Thus, if one has contracted to deliver 
 to another at a certain time ten bushels of wheat or twenty bushels of 
 
CHAP. IX.] CONTRACTS IN GENERAL. 2G9 
 
 corn ; here the delivery or payment is the first thing to be done, there- 
 fore the payor has the election, and may discharge his contract by the 
 tender of either. But if the promise was to deliver on demand, then the 
 first thing is the demand, and the payee has his election, and should 
 make choice in his demand. 
 
 § 36. In matters uot expressly determined by the contract, the per- 
 formance must be in accordance with what is reasonable and common 
 usage. If a tailor promises to make a coat for a person, the cloth should 
 be furnished him, and a reasonable time thereafter given him to finish it ; 
 but if a shoemaker promises to furnish a pair of shoes to a person by a 
 given time, the payee has nothing to do except at the time to receive 
 the shoes; for the contract and usage imply they are to be delivered 
 already made. 
 
 § 37. There is a difference between a contract for the payment of 
 money, and that of specific articles, in the manner they should or may 
 be performed. If money is to be paid at a particular time, it is the duty 
 of the payor, at the time, to seek the payee and pay the money. If the 
 money were payable on demand, the demand in reality should be made ; 
 but after the lapse of reasonable time the demand will be presumed in 
 in law, and an action for the non-payment may be sustained. But for 
 the payment or delivery of specific articles, and especially bulky arti- 
 cles,' the rule may be different, depending, as in other cases, upon what 
 is reasonable, and the general usages of the country. In the payment 
 of light articles, the general rule would be the same as in cases of the 
 payment of money ; but if the contract is to pay or deliver bulky arti- 
 cles, and no special place of delivery agreed upon, the contractor in due 
 time should inquire of the payee where he would have the delivery, and 
 in case he refuses to assign a place, or an unreasonable one, the con- 
 tractor would be excused, as in cases of tender, or being ready at the 
 time and place agreed upon ; but, in any case, he should be prepared with 
 the articles ready to make the payment. But if the payee refuse to re- 
 ceive, or should not be present to receive, where the contractor is bound 
 to deliver, and offers to do so, he is not at liberty to abandon the property, 
 but should take ordinary care in preserving it for the payee, but at his 
 expense and risk. Where merchants or mechanics promise to pay or 
 deliver such articles as they usually deal in, and no place specified, a 
 reasonable construction would make the place of payment at the store 
 or shop of the payor. 
 
 § 38. Time frequently becomes an important question in the perform- 
 ance of a contract. Yery different rules are adopted in reckoning time, 
 dependent upon different classes of contract, and the favor the court shows 
 one class over another. , A year is three hundred and sixty-five days, and 
 
 ' See Chipman on Contracts for the Payment of Specific Articles. See Barrett 
 vs. Allen, 10 O. E. 426. 
 
270 PRIVATE LAW. [book n. 
 
 a month usually means a calendar month of thirty days,' though in civil 
 matters in England a month is a lunar month of twenty-eight days. In 
 this country, when anything is to be done in one year from date, it is due 
 on the corresponding day the next year without regard to leap years ; and 
 so where it is one or more months from date, it falls due on the corre- 
 sponding day the next or subsequent month. But usually months are 
 reckoned by thirty days ; and in counting the days, the first is excluded 
 and the lastincluded, as where, on the first day of the month, something is 
 promised to be done in ten days, it becomes due on the eleventh. This 
 mode of establishing the day of payment is observed in all ordinary con- 
 tracts, except as to the payment of negotiable paper, when three days of 
 grace are added. "When ordinary contracts fall due on Sunday, they 
 are to be performed on Monday ; but when the last day of grace falls on 
 Sunday, or the customary holiday, it is payable on Saturday or the pre- 
 vious day ; the reason of this difference is, that the law will not curtail 
 the length of time when it is a matter of contract, nor extend it, when 
 it is a mere matter of grace or privilege. In the computation of time 
 the law in general allows no fraction of days, and therefore, in the day, 
 the whole twenty-four hours are included, from midnight to midnight. 
 When a thing is to be done on a particular day, the contractor has the 
 whole of that day to do it in, and may discharge his obligation at any 
 time before the expiration of the day at midnight. This is the general 
 rule, but in the payment of negotiable paper, it is required that the pay- 
 ment be made within the customary business hours; and it may be, that 
 where the transaction require extraordinary attention on the part of the 
 payee, the offer to perform should be within reasonable hours. It 
 seems, therefore, that there may be nearly twenty-four hours between 
 the time when a matter should or might be performed ; for the law in 
 favor of liberty and privilege fixes the shortest time, and as to a matter 
 of contract, the longest. Thus, an apprentice's time expires the day be- 
 fore his birthday when he arrives of age ; and as the law does not 
 notice parts of days in any computation, a person whose birthday is 
 on the first day of January, when of full age, is free to act the whole of 
 the last day of December. So, if a person is to be imprisoned for any 
 number of days, the expiratiou of the time arrives at the first hour of 
 the last day, counting the first day as one ; but in the computation in 
 contracts, and ordinary matters, the rule is to exclude the first day and 
 include the last day as the day on which the matter is to be performed. - 
 
 III. THE MEANS AND MANNEE OP ENEOECING THE CONTEACT. 
 
 § 39. A party has frequently the means in his own hands of en- 
 forcing or securing the performance of the contract, as promised by 
 
 ' See post, chap. xii. and notes, and 10 0. E. 496. 
 
CHAP. IX.] CONTRACTS IN GENERAL. Ill 
 
 the opposite party. Such is the case when he holds in his own hands 
 the consideration until it is performed, or has a lien, or a mortgage, or 
 other security, by means of which the performance is enforced or indem- 
 nified. But otherwise, generally, there is no other remedy to enforce 
 the performance of the contract except by an action at law to recover 
 damages for the breach of the promise ; or, in a few instances, where 
 damages at law would not be an adaquate remedy, courts of equity may 
 grant relief by a decree for specific performance. But the law does not 
 justify one party to violate his contract or promise because the other 
 has ; for it is an unlawyer-like idea to suppose, as some do, that because 
 the opposite party has committed the iirst breach, the contract is for- 
 feited, and he is released and excused from performing his part of the 
 contract, unless such failure of the opposite party was a matter of a 
 condition precedent, or necessary, in order to enable the contractor to 
 perform his part. Each must perform his part of the contract, and do 
 whatever is necessary, in order to enable the other to perform his ; ai 
 least he must not be in the way and preventing it. Otherwise, each is 
 responsible for his own non-performance, and responsible to the other in 
 damages for the breach of it. 
 
 § 40. When a breach of a contract has actually taken place, it is 
 frequently a difficult question to determine what damages one is en- 
 titled to on that account, and what the law will require of him to do, in 
 order to save and reduce the damages against the opposite party. No 
 one has a right to permit a loss that he can avoid, with a view of 
 making the other party responsible for it, because it is connected with 
 his contract which he has failed to perform. Thus, if a person had con- 
 tracted to furnish, at a certain time and place, a quantity of materials, 
 and has failed to do so, the rule of damages is the market value of such 
 materials at the place ; and no damages can be claimed on the account 
 of the particular use intended to be made of the materials, unless the 
 contract discloses it and provides for it. If the contract were to furnish 
 a quantity of feed for a person during a given time, at a certain place, 
 and at a given price, to be fed to his stock of cattle, and the contractor 
 fails to do so, the owner of the stock has no right to let them suffer or 
 die for the want of feed, that can be avoided with ordinary exertion, 
 with a view of recovering damages therefor from the contractor. But 
 he should use ordinary diligence and exertion to procure the feed else- 
 where, and then his rule of damages would be the difference between 
 the contract price and the actual cost of the feed, adding thereto any 
 unavoidable damages. So it would be in the case of furnishing mate- 
 rials, in case the contract provided that they were to be used in build- 
 ing a house ; then the question would be the necessary cost of procuring 
 the materials elsewhere, and the unavoidable damages in doing so ; and 
 to this no speculative damages can be added, such as the supposed rent 
 during the delay. 
 
272 PRIVATE LAW. [book ir. 
 
 § 41. If a contract I)e sought to be enforced, the party may not only op- 
 pose it by showing that it is void or voidable on the ground of its want 
 of the essential constituents or legality already treated of, but may show 
 other objections to it, recognized by law as valid, — as that the contract 
 wanted mutuality, i.e. that it was not mutually binding on both parties, 
 and therefore it ought to bind neither: as where a person entered into 
 a written contract with a proposed turnpike company, in case the com- 
 pany locate the road as proposed, to do certain work on it and take his 
 pay in a certain manner. Afterward the company was incorporated, 
 but the work was not performed ; and upon action being brought for 
 the breach, it was held that as the company was not in existence at the 
 making of the contract, they were not bound by it, so neither was the 
 contract binding on the defendant, for want oi mutuality.'^ It also may 
 be shown in defense that the contract has been rescinded, either by the 
 defendant, upon finding that the cjontract had been procured from him 
 by the perpetration of a fraud, and that as soon as he discovered it he 
 restored the consideration and replaced the parties where they were ; 
 or by the mutual agreement of the parties and the restoration of their 
 several rights. But whenever a recession is insisted upon, it must ap- 
 pear that the contract is rescinded in tof.o, and that the parties have 
 been restored to whatever they parted with upon the execution of the 
 contract, and that the parties have been put in statu quo. 
 
 § 42. Where a party, by his own contract, creates an express obliga- 
 tion upon himself, he is held to its performance, and inevitable accident 
 does not excuse him, for it was his own folly that he did not provide 
 against it in his contract. But it is-otherwise where the contract is not 
 so expressed between the parties, but is the obligation of natural justice, 
 by reason of some equal liability, imposing the payment of money or 
 the performance of some duty, and raising an implied promise to that 
 effect; in this case, as the law creates the duty, so it also provides the 
 exception, that where the party in such case is disabled without his own 
 fault, he is discharged from the obligation.' So he is excused if the per- 
 formance of the contract afterward becomes illegal by statute or otherwise. 
 
 § 43. In addition to these defenses, the law permits the allegation of 
 other matters in bar of a recovery of damages for the non-performance 
 of a contract, as a release, an accord and satisfaction that the claimant 
 himself had prevented the performance, or any other matter that goes 
 to show that the claimant has no right to recover, which will be further 
 elucidated when treating of remedies. This fertile subject of title by 
 contract will be followed by several chapters on some enumerated sub- 
 jects of contract, as necessary for a more full understanding of the subject. 
 
 ' Dayton Turnpike Co. vs. Coy, 13 0. S. R. 84. 
 
 2 2 Stephens's Cora. 116 ; Linn vs. Koss, 10 O. K. 412. 
 
CHAP, x.] GIFT, SALE, AND LABOR. 273 
 
 CHAPTER X. 
 
 GIFT, SALE, AND LABOR. 
 
 § 1. The law of contracts in general having been considered, it is 
 necessary, in order more fully to understand the title and rights ac- 
 quired to property, to consider a number of classes of special or enu- 
 merated contracts, on account of the necessary shade of difference in 
 law and principles peculiar to each, dependent upon the natural differ- 
 ence of each class. This will require a chapter upon each of the follow- 
 ing subjects, viz., the law governing contracts in relation to — I. Gift, 
 sale, and labor ; II. Bailment ; III. Negotiable paper and money con- 
 tracts, either absolute or conditional ; which will embrace most of the 
 various phases of the law of contracts, not included in that of contracts 
 in general. 
 
 § 2. A gift or donation is the disposal and transfer of the right of 
 property from one person to another without a consideration. The essen- 
 tial difference between a gift and a sale is, that the title to the property 
 in the former case passes by a gratuity of the donor without any con- 
 sideration. As this agreement of the parties is without a consideration, 
 it is essential to the validity of the gift that the property or the subject- 
 matter of the donation should be delivered into the possession of the 
 donee, for otherwise it would be an agreement without a consideration 
 to support it, and the delivery could not be enforced in court; and there- 
 fore, if a thing be promised as a donation, until it is delivered, so far as 
 law is concerned, the party may at any time revoke his promise, or 
 refuse to perform it' 
 
 § 3. But the formality of the delivery need not be greater than the 
 nature of the thing, is reasonably susceptible of; therefore, where a 
 father had purchased a lottery ticket which he declared was for his 
 infant daughter, to whom he said he gave it, and wrote her name upon 
 it, after the ticket had drawn a prize he declared that he had given it to 
 his daughter, and that the prize-money was hers ; this was held sufficient 
 for the jury to infer all the formality to a valid gift, and that the title 
 to the money was completely vested in the daughter. 
 
 § 4. The gift and delivery of a negotiable paper, that passes by de- 
 livery, would be good against the original maker, subject to his equities 
 against the donor. But the gift of the maker's own note would be 
 
 1 2 John. E. 62; 7 Ibid. 26; 10 Ibid. 293. 
 18 
 
274 PRIVA TE LA W. [book ii. 
 
 invalid for the want of consideration, for it is the delivery of a promise 
 only, and not the tiling promised.' If, however, the note were a nego- 
 tiable note, and transferred as such before due to an innocent purchaser 
 in the ordinary course of business, it would be recoverable in the hands 
 of such holder.'' A strong case of the failure of a donation on ac- 
 count of the want of consideration, and illustrative of the whole doc- 
 trine, is that where M executed the following paper: "For value received 
 I promise to pay to Mrs. H the sum of $300, as a small recompense for 
 her kindness. The executors of my will are hereby directed to pay the 
 above lo Mrs. H or her son M after my decease." This was duly 
 signed and given to the attesting witness to be given to Mrs. H after his 
 death, which was done. Upon a suit being brought by H against the 
 executor of M the court held — 1. That this was not a gift inter vivos!' 
 nor a gift causa mortis, nor was it good as a testamentary disposition. 
 2. That the " kindness" mentioned in the paper (as it appeared in evi- 
 dence) being acts of friendship and hospitality merely, done and accepted 
 at the time as gratuitous, does not, in law, constitute a good considera- 
 tion to support the express promise.' It is the settled doctrine that a- 
 mere gratuity, which, without a special promise, would not imply a 
 promise, is not a good consideration to support nn express promise. 
 Nor is a mere moral obligation sufficient to sustain such promise, where 
 a legal obligation never existed * But where there is a promise by a 
 subscription by several as a contribution to a common object, desired by 
 all, the promise of each may be a good consideration for the promise of 
 the others. It is upon this ground that a subscription to charitable or 
 benevolent objects has been held binding, where there was no other 
 consideration for the promise. Subscription to a public improvement 
 can be sustained upon the additional ground of the interest the sub- 
 scriber had in the improvement, and the inducement held out for the 
 trustees or committee to proceed in the work and make the improvement. 
 
 II. SALE AND EXCHANGE. 
 
 § 5. A sale and exchange are essentially the same. An exchange 
 is where a person parts with his right of property in a thing to another, 
 in consideration of some other property delivered to him in return ; and 
 a sale is where a person in the same manner parts with his right of 
 property, in consideration of money paid, or promise made, on the part 
 of the purchaser. This will involve the consideration of — 1. What right 
 of property is essential to the vendor, and will vest in the vendee or 
 
 1 Starr vs. Starr, 9 0. S. E. 74; 2 Kent's Com. 438. Harris vs. Clarke, 3 
 Connecticut, K. 93. 
 
 2 See post, Negotiable Paper. ' See post, "Wills and Administration. 
 * Hamor vs. Moore, 8 O. S. R. 239. ' 1 Parsons's Cent. 359 and n. h. 
 
CHAP. X ] GIFT, SALE AND LABOR 275 
 
 purchaser; 2, the necessary requisites and formalities of the contract; 
 and 3, the rights and liabilities of the parties arising from the contract. 
 
 § 6. 1. It is essential to the validity of the transfer of the right of 
 property, that the vendor should have the right of property in himself, 
 or an authority from the true owner to dispose of it, for no one can con- 
 vey to another a greater right than he himself possessed ; nor can any 
 one be deprived of his property by another without his consent or 
 authority. Though the rightful owner should intrust the vendor with 
 the care and possession of the property, yet if he has not given his 
 assent or authority to authorize the vendor to sell, a purchase, even for 
 a valuable consideration and without notice, vests no higher title in the 
 vendee than was possessed by the vendor, and will not protect the 
 vendee from an eviction by the rightful owner. The law casts the 
 responsibility of investigating the title of his vendor upon the purchaser, 
 who is subject to the maxim caveat emptor. Therefore, if a person lend 
 or intrust a horse or other property to another, who should sell it, he 
 does not lose his property thereby, but may reclaim it wheresoever he 
 may find it, unless he had given an authority to sell it, or where an 
 authority might be implied from the course of dealing, or from a fraud- 
 ulent connivance between the vendor and the true owner. Even a 
 mortgagee, or a pawnee in possession, can only convey his interest 
 by an absolute sale. In this State there is no market overt, or other 
 circumstances, which create any exception to these general principles.' 
 
 § 1. 2. Anything which may express the intention of the parties will 
 be sufiScient for the purpose of transferring the right of property. Inde- 
 pendent of the statute of frauds, any words importing a bargain, where- 
 by the owner of a chattel signifies his willingness and consent to sell, 
 and whereby another person signifies his consent to buy it, for a specific 
 price, would be a sale and transfer of the right to the chattel. And as 
 soon as the bargain is struck, the right of property is changed ; and 
 though the vendor, where the bargain was not otherwise, may retain the 
 property until the price be paid, yet, should the property be destroyed 
 or die before delivery, the loss will fall on the vendee, because by the 
 bargain the property became that of the purchaser.'' But should the 
 bargain consist of nothing more than an agreement as to price, and no- 
 thing done to carry into effect, as where one says I will give you fifty 
 dollars for your house, and the other says I will take it, and nothing 
 more is done, the bargain is void ; but if the money, or a part of it, is 
 paid, or a day appointed for the payment, or anything done in part per- 
 formance, the bargain is complete ; and in that case the one may have 
 his action for the money, and the other for the property. 
 
 1 Roland vs. Gundy, 5 0. E. 202. See 4 0. S. R. 182 ; 1 Johns. R. 471 ; 2 Camp. 
 R. 336; Yel. R. by Metcf. 67, g, n. 1 (17). 
 
 2 3 Johns. R. 170; Chit. Contr. 110. 
 
276 PBIVATE LAW. [book n. 
 
 § 8. Under the law of Ohio, actual delivery is not essential to com- 
 plete the sale ; for the bargain completed, in law, transfers the right of 
 property. But the property must be designated and known from other 
 property of the vendor. Therefore, where a person purchased a hundred 
 barrels of flour out of a larger lot, e.g. five hundred barrels, or a hundred 
 bushels of corn out of a bin of five hundred, without separating or dis- 
 tinguishing the parcel sold, such purchase would not transfer the right 
 of property to the purchaser, or enable him to sustain an action of trover 
 for it. The only right the purchaser has in such case is to demand 
 designation or measurement of the property, so as to complete the de- 
 livery, and an action on account of the refusal.' "Where the property is 
 sufficiently designated and distinguished, no delivery under the contract 
 is essential to pass the title to personal property ; and upon a contract 
 for the sale, with no stipulation to the contrary, payment, by law, is to 
 be made on delivery,' and no distinct agreement is needed of time, place, 
 or manner of payment. 
 
 § 9. The English statute of frauds' provides that no contract for the 
 sale of any goods, etc., for the price of ten pounds or upward, shall be 
 good, unless there be a delivery of part, or eai-nest paid, or note or 
 memorandum in writing of the bargain signed by the person charged 
 with the contract. A similar statute exists in several of the States ; 
 but no such provision exists in the statute of frauds of Ohio ; and 
 therefore the numerous cases upon that subject, as to what contracts 
 are within the statute, what will amount to a delivery or a symbolical 
 delivery, what is payment of earnest, or part payment, or what is a note 
 or memorandum in writing within the statute, are here inapplicable. 
 None of these requisites are essential here in order to constitute a 
 valid sale. 
 
 § 10. 3. Under this head — the rights and liabilities of the parties to a 
 sale of personal property — will be considered : 1, fraud and deceit ; 2, 
 warranty ; and 3, stoppage in transitu. 
 
 (1) The sale of personal property may be vitiated hj fraud and de- 
 ceit. We have seen that fraud will vitiate any contract ; and whenever 
 a sale is procured by fraud or deceitful practices, the purchaser is at 
 liberty to rescind or abandon the contract — return, or ofi'er to return, the 
 articles purchased, and demand a return of the price ; and if the price 
 be not returned, he may sue for it. He may also rescind where the 
 vendor is unable to comply with the sale, on his part, or in the case of 
 a false warranty ; but in order that there may be a rescission of the con- 
 tract, it is necessary that the purchaser should be able to rescind in 
 
 ' Woods vs. MoGee, 7 O. E. pt. 2, 127. 
 
 2 Hooban vs. Bidwell, 16 O. E. 509; Coil vs. Willis, 18 0. E. 28. 
 
 3 29 Charles II. c. 3, a 17. 
 
CHAP. X.] OIFT, SALE, AND LABOR. 211 
 
 toto, and place the parties in statu quo ; or jiis remedy will be only for 
 the deceit or on the warranty.' 
 
 § 11. Mere loose affirmations as to value or quality, gratis dictum, on 
 which it was the indiscretion of the purchaser to rely, or concerning a 
 matter which was obviously otherwise, will not be evidence of a deceit. 
 Such means must be used, for the purpose of deception, as are likely to 
 impose upon a person of ordinary prudence and circumspection, and to 
 throw him off his guard on a point where he might reasonably place 
 confidence in the representations of the vendor. And it is not only ne- 
 cessary that the representations should be false in point of fact, but that 
 there should be a scienter, or knowledge of the defects on the part of 
 the vendor.' For, however false the representations may be in fact, yet 
 if they were made in ignorance — believing them to be true and in good 
 faith — no responsibility is incurred unless there be a warranty. Con- 
 cealment of defects is evidence of fraud ; and where there are defects 
 known to the vendor, which cannot be readily discovered by the pur- 
 chaser, it is his duty to disclose them, unless it be a bona fide sale, with 
 express agreement, that the purchaser should take the article with all 
 its faults and defects. 
 
 § 12. (2) There may be either an express or implied warranty upon 
 the sale of any personal property. It is established as a general prin- 
 ciple, that on the sale or exchange of goods a warranty as to the 
 quality of them is not implied in law. The maxim in such case is, ca- 
 veat emptor ; and gives rise to another principle, simplex commendatio 
 nan obligat, a simple affirmation or commendation by the vendor as to 
 the value or quality of the goods does not amount to a warranty, unless 
 it be made and received as such.' 
 
 § 13. To create an express warranty, the word warrant need not be 
 used, nor is any precise form of expression required. Any affirmation 
 of the quality or condition of the thing sold (not uttered as matter of 
 opinion or mere belief), made by the seller at the time of the sale, for 
 the purpose of assuring the purchaser of the truth of the fact affirmed, 
 and induce him to make the purchase, if so received and relied on by the 
 purchaser, is an express warranty.* An express warranty may be 
 either general or qualified. If a person, at the time of selling a horse, 
 say, "I never warrant, but he is sound as far as I know," this is a 
 qualified warranty to the purchaser; and if he can show that the horse 
 was unsound to the knowledge of the seller, he will be liable on it. 
 There may be also a qualified warranty as to some particular or special 
 defects. 
 
 « Belmont Bankcg. Beebe, 6 O. E. 497; Frost vs. Lowry, 15 O. R. 200. 
 2 2 Stark. Ev. 467; 12 East's li. 631. 'Chit. Contr. 135. 
 
 * Chit. Contr. note (t). 
 
278 PRIVATE LAW. [book n. 
 
 §14. There is an implied* warranty in three classes of cases : 1st, in 
 all sales of personal property there is an implied warranty as to the title 
 of the vendor ; 2d, in the sale of provisions, that they are wholesome 
 at the time of delivery ; and 3d, that when A sells a commodity for a 
 particular purpose, he must be understood to warrant it reasonably 
 fit and proper for that purpose.' If a man sell generally, he undertakes 
 that the article sold is fit for some purpose ; if he sell for a particular 
 purpose, he undertakes that it shall be fit for that particular purpose. 
 A distinction is made in this respect between the sales of goods which 
 are ihe products of nature, and those which are the products of human 
 art ; for no prudence can guard against latent defects in the former ; but, 
 by providing proper materials, the manufacturer or merchant may 
 guard against defects in manufactured articles ; and, it may be reasona- 
 bly supposed, that they are judges of the articles, and provide such as 
 are free from defects. Therefore, when a person sells a horse, or a 
 quantity of wheat, generally he warrants no more than that the former 
 is a horse and the latter is wheat ; but if he sells the horse for a car- 
 riage-horse, or the wheat for the purpose of making flour, he undertakes 
 (at least as far as he knows) that each is proper for the purpose. But 
 in general sale of a manufactured article there is an implied undertaking 
 that the article is merchantable. This distinction, perhaps, onght not 
 to apply to any but the manufacturer or the merchant who manufac- 
 tures or deals in the article. 
 
 § 15. Thus, where a manufacturer agreed to manufacture and deliver 
 at an agreed price a steam-boiler to run certain engines in a rolling- 
 mill, it was held by the court that the contract implied a stipulation that 
 the boiler should be free from all such defects of material and workman- 
 ship, whether latent or otherwise, as would render it unfit for the usual 
 purpose intended.^ So where a cow was sold for a particular purpose, 
 and there was in her a latent defect, which would greatly impair her for 
 the intended purpose, that was known to the vendor, and unknown to 
 the vendee, the vendor was bound to disclose the defect,* for without it 
 there would be an implied warranty as to the fitness for the intended 
 purpose. 
 
 § 16. Formerly the rules of the common law were very lax in the 
 restraints of morality or justice under which it placed the conduct of the 
 vendor, and formed a mortifying contrast when compared with the good 
 faith required in such cases by the civil law. Under the maxim of 
 caveat emptor, the English law permitted the vendor to say anything in 
 commendation of the articles he sold, with impunity, so that there was 
 
 16 John. E. 5; 1 Foub. Equ. 120; 6Tanut. E. lOS; 3 Moore and Payne, K. 155; 
 4 B. and 0. E. 115; Chit. Oontr. 133. 
 
 ' Eogers vs. Niles, 11 0. S. K. 48. » Wadley vs. Clinton Co., 13 0. S. E. 502. 
 
CHAP.x.] GIFT, SALE, AND LABOR. 279 
 
 not an express wavranty, holding that the purchaser's eyes were his 
 judge. But of late, both in that country and in this, the decisions of 
 the courts are more consistent with a loftier sense of justice and morality. 
 
 § It. (3) Stoppage in transitu. The vendor has not only a lien upon 
 the goods for the price while they are in his possession, but may, after 
 he has parted with such possession, and while the goods are in transitu, 
 and before they have reached the vendee or his agent, or the place of 
 ultimate destination, retake them, on learning of the insolvency of the 
 vendee.' This right is termed stoppage in transitu, and is a species of 
 equitable lien recognized and acted upon by the courts of common law, 
 for the purpose of preventing a wrong and promoting substantial justice. 
 This right does not rest upon the ground of rescinding the contract, but 
 upon the continuance of an equitable lien ; and if the goods are stopped, 
 the vendee may recover them, on his paying the price, or complying 
 with his contract. If a part of the price has been paid, they may be 
 stopped for the balance, and the part payment diminishes the lien -pro 
 ianio.^ 
 
 § 18. The goods are considered to be in transitu, and subject to this 
 right, while they are in the bauds of an intermediate person, as a packer 
 or a warehouseman, at a stage on their transit, which continues until 
 the goods arrive at the place mentioned by the purchaser to the vendor. 
 It is immaterial through how many hands they may have passed if still 
 they have not reached the spot to which they were originally consigned, 
 and any time before he or his agent have received them into his pos- 
 session. 
 
 § 19. When the goods are delivered at a warehouse, and there is no 
 place of ultimate delivery immediately in view, the right of stoppage 
 ceases when they have reached such warehouse. The transit will be 
 at an end if, without new orders, the goods are to remain stationary. 
 And if the first journey be once ended, no subsequent transit can revive 
 the vendor's right. 
 
 § 20. The right is sufficiently exercised by a mere claim of the right 
 by the vendor to a return of the goods while in transitu, although no 
 actual possession be taken ; and this would be so even if they be in the 
 custody of the law, or taken by foreign attachment against the vendee, 
 or even a resale and payment secured by the original purchaser.' 
 
 § 21. As respects the right of property and the risk of the goods, 
 the rule is, that the delivery of the goods to a carrier, or on board of a 
 ship, to be conveyfed to the vendee, vests the property of the goods in 
 him ; so that, though lost in the course of the conveyance, he must pay 
 the price, unless the vendor has been guilty of negligence, or has violated 
 the express directions of the vendee, or has not acted in good faith. 
 
 ' 1 Parsons's Contr. 476. ' Jordan vs. James, 5 0. E. 88. 
 
 3 Benedict vs. Schaettle, 12 O. S. K. 515. 
 
280 PRIVATE LAW. [book ii. 
 
 III. CONTEACT FOE LABOE. 
 
 § 22. Contracts for labor may be divided into two classes, — labor to 
 do job work, with or without furnishing the materials, and labor to per- 
 form service from time to time. An instance of the first would be 
 where one has contracted with another to build a house, and the mate- 
 rials to be furnished by one or the other, and payments to be made 
 therefor as the parties have agreed upon. An instance of the second 
 class of cases is where a man has contracted to labor for another for 
 a certain period of time, as a month or a year, at specified wages ; 
 or, in either case, labor may be performed without the price or com- 
 pensation being agreed upon. In that case the law raises an implied 
 promise on the part of the employer to pay for the labor, or the labor 
 and materials, what they were worth, or what the employee deserved, 
 or, as it is expressed in the books, to pay quantum valebat or quantum 
 meruit. But in most instances the price or compensation is agreed 
 upon and determined by the contract. In all cases the rights of 
 the parties are to be determined by their contract, which is to be fol- 
 lowed as far as practicable, and each bound to perform his respective 
 part of the contract, unless there be a legal excuse for the refusal or 
 neglect. Much of the law governing the relation between the employer 
 and employee, in regard to labor and service, will be considered under 
 the head of Master and Servant. But there are various considera- 
 tions in relation to these classes of contracts that should be here con- 
 sidered. 
 
 § 23. Where there has been a special contract for the labor, — what 
 the labor should be and how performed, — what the pay should be and 
 when to be paid, — neither party can recover upon the contract except 
 in accordance with its terms. Unless the payment is to be made at 
 times without reference to the performance of the labor, the employee 
 cannot recover his pay under the contract, without a performance ia 
 accordance with its terms. In some instances it is optional with the 
 employer whether to receive the product of the labor or not, when it is 
 not in accordance with the terms of the contract; as upon a contract to 
 make a saddle or carriage of a certain description, when the article is 
 about to be delivered, if it is not in accordance with the contract, the 
 employer may refuse to receive it, and of course is not bound to pay for 
 it. But where the work and labor was performed in building a house 
 for the employer on his own land, or the labor to be performed by the 
 year, or some specific time, and the pay to be when the labor was per- 
 formed according to contract, and there has been a part performance, 
 but the workman has left his work before it was entirely finished, or 
 the laborer before his time has expired, it is impossible for the employer 
 in these cases to reject the labor, and the employee cannot recover upon 
 
CHAP. X.] GIFT, SALE, AND LABOR. 281 
 
 the contract, for he has not performed it. The employer has received 
 the work and labor, is he in any shape responsible for it? There is a 
 distressing conflict in the authorities on this subject. 
 
 § 24. In Ohio, the courts have adhered vi?ith the strictest tenacity to 
 the terms of the contract; and where the contract is not performed, 
 afford no relief to the person in default, but leave him to abide by the con- 
 sequences of it, whatever advantage the other party may have received 
 by the contract. The question has been frequently raised here (as it 
 has elsewhere) in three classes of cases which have been just under 
 consideration, viz., in the sale of specific personal property, in contract 
 for labor on jobs, and for labor in service. (1) Thus, where A had con- 
 tracted to sell and deliver B a specific quantity of corn, say 500 bushels, 
 to be delivered in the course of the following winter months, to be paid 
 for at the rate of 15 cents per bushel on the 1st of March following, A 
 in December delivered 216 bushels, but neglected and refused to deliver 
 the residue, and afterthe 1st of March brought his action against B for 
 goods sold, etc. to recover the value of the part delivered to and retained 
 by B. The court held that as the contract still subsisted, and no ex- 
 cuse for its non-performance in full, A could not recover for that part 
 of the corn delivered.^ Also, where A contracted with B to sell and 
 deliver a number of sheep at a specified time, place, and price, upon 
 which contract B paid, as a part of the price, $50, and was to pay the 
 residue on delivery, afterward B refused to receive the sheep and pay 
 for them according to the contract. After the time agreed upon for the 
 delivery, A sold the sheep to others, and B brought suit to recover the $50 
 paid. The court held that B, after a refusal on his part to comply with 
 the contract, had no right to consider the resale by A as a rescission of 
 the contract, and was not entitled to recover the money paid.^ 
 
 § 25. (2) Where, under a special contract to build a saw-mill and fur- 
 nish materials, the workman, after a part performance, abandoned the 
 job without a legal excuse, and without the consent of the employer, or 
 his acceptance of the work in its unfinished state, the court held there 
 could be no recovery for the work.' (3) Where B agreed to work for 
 L on his farm for six months certain, at eleven dollars per month, and 
 no time mentioned when payments were to be made, B left the employ- 
 ment at the expiration of the first month, without excuse, and against 
 the consent of L, the court held that the contract was entire, and could 
 not be apportioned, and that B, under the circumstances, could not main- 
 tain an action for the one month's work.* 
 
 1 Withrow vs. Withrow, 16 O. R. 238. See in this case Judge Read's dissent- 
 ing opinion, which, in the writer's judgment, should be the law of the case. 
 
 2 Ashbrook vs. Hite, 9 O. S. K. 357. The law of this case cannot he objected to. 
 8 Allen vs. Curies, 6 0. S. R. 505. * Larkins vs. Buck, 11 0. S. R. 561. 
 
282 PRIVATE LAW. [book ii. 
 
 § 26. The law thus settled by the supreme court of Ohio in these 
 cases, is not referred to approvingly, for the law has been otherwise 
 determined in numerous cases by most able judges both in England and 
 in this country. It is manifest that the law should be the same in all 
 three of the above-named class of cases. They should rest upon the 
 same principles ; yet relief has been sustained in some cases and denied 
 in others where there should be no difference in principles. If the con- 
 tract is in the way in one class of the above cases, it should be in the 
 others. If the vendor, under a contract to deliver a quantity of goods, 
 delivers only a part (which the vendee puts to his own use), and then 
 neglects to deliver the residue, — if a laborer contracts to do a certain 
 job at a certain price after the work is done, and then performs a part 
 of the job and neglects to finish it, but the employer appropriates the 
 job to his own use, — if the laborer under a contract to perform services 
 for a specific time, and then to receive his pay, and after performing a 
 part of it neglects or refuses to perform the residue, — now, if in any one 
 of these cases a recovery may be had by the employee, there should be 
 in all, for they must all rest upon the same principles, and have the 
 same merit for a recovery. " If the rule contended for were to prevail," 
 said Lord Tenterden, "then, where the contract was for 250 bushels, 
 and 249 had been delivered to and retained by the defendant, the ven- 
 dor could not recover for the 249, because he had not delivered the 
 whole." Another judge exclaims, " If that be the law, then a man who 
 has undertaken to finish a house, and a door not hung, he cannot recover 
 for the whole job." And at last another will say, if that be the princi- 
 ples of law governing the case, that a man who has hired for a month 
 and has worked all but the last day, he, too, cannot recover. But in all 
 these cases wise, just, and able judges have declared that a recovery 
 might be had, and that it was necessary to the due administration of 
 justice and to prevent gross wrong. In these cases it is impossible for 
 the law to point out a demarkation between one and ten, or between 
 one and one hundred. Therefore, to prevent gross injustice in some 
 cases, the courts, upon the same principles, are compelled to grant relief 
 in some cases, and in others to reject them ; but in these cases relief 
 may be administered upon rules and principles that do no violence to 
 contracts and ample justice to all. 
 
 § 2'?. The rules governing these cases, in short, are these.' Both 
 parties are strictly bound by the terms of their contract, and neither has 
 a right to sue the other upon the contract without having performed, on 
 his part, all prior and dependent portion of it. If one have prevented 
 the other from performing the contract, he may sue on the contract for 
 
 ' See 1 Parsons's Contr. 524, and notes (o), (p), and (q) ; 2 Ibidem, 34, and 
 notes (b), (c), and (d). 
 
CHAP. X.] GIFT, SALE, AND LABOR. 283 
 
 his damages under it ; or he may sue upon an implied assumpsit for 
 what he has done — he lias his choice of these remedies. But if, for 
 some reason, or for no reasoD, he has failed to fulfill his contract, and 
 therefore is not entitled to recover upon the contract, but has rendered 
 valuable services, or delivered valuable property under the contract, 
 which the employer chooses to retain, or has applied to his own use and 
 benefit, the law will generally imply a promise on his part to pay such 
 remuneration as the benefit conferred is reasonably worth,^ and recover 
 that in an action upon the implied assumpsit, leaving the employer to 
 sue on the contract for his non-performance, or to seek ample justice by 
 a defense against the assumpsit, show all the injury he has sustained 
 by reason of the non-performance of the contract, by way of reduction 
 or recoupment' of damages. If the employee has acted in bad faith, or 
 has rendered little or no benefit, he will not be entitled to recover ; but 
 if he has rendered substantial benefit to the employer, over and above 
 any damages he has sustained by reason of the breach of the contract, 
 there is no injustice in the recovery, and many cases absolutely require 
 it to prevent gross injustice. At the same time the employer has all 
 the advantage of his contract, in governing the price, pro rata, and 
 otherwise reducing it on account of any damages he may claim and show 
 himself to have sustained in consequence of its non-performance, and 
 the employee will be entitled to recover the balance in his favor out of 
 the benefits he has conferred. Or the employer may bring his action 
 for the breach of the contract, and recover a separate judgment, or, under 
 the code, have his counter claim. In this manner the employer has the 
 full advantage of his contract, and is only prevented from making it an 
 instrument of oppression and injustice. 
 
 § 28. This doctrine does not intend in the least to invalidate contracts. 
 If the parties have expressly agreedthat no part of the price is to be paid 
 until the whole of the service is rendered, or articles delivered, or that all 
 claims for a part performance shall be forfeited, of course this must 
 stand as the express contract of the parties. But what is objected to is, 
 to make such forfeiture by implication. Where it has been expressly 
 agreed to, it is the contract of the parties, and they must abide by it, at least 
 at law. There may be relief in equity, even then, in certain cases: as 
 relief against fraud or accident, or against forfeiture, or for specific per- 
 formance, or to reform the contract when, by mistake or accident, the 
 contract is different from what was intended and agreed upon by the 
 parties. But to compel such forfeiture at law, by mere implication, as 
 where two hundred and fifty bushels of grain have been delivered 
 where the contract was three hundred; or where the job is finished 
 
 1 2 Parsons's Contr. 35. 
 
 2 As to roooupment, see 3 0. S. E. 333; 4 Ibid. 680; 7 Ibid. 95. 
 
284 PRIVATE LAW. [book ii. 
 
 in building a house, except the plastering of one room ; or where ten 
 months have been served out of the year, would be unjust and unrea- 
 sonable, and so have wise and able judges decided in a variety of cases.' 
 § 29. "Where A agreed to sell a quantity of personal property, or sell 
 and convey land on a certain future day to B, and receives a partial 
 payment: if, at the time set, A is ready and willing to perform, and 
 does nothing in violation of the contract, but B, without any justifiable 
 cause, refuses to go on with the contract. A, after the time set, is at 
 liberty to dispose of the property elsewhere, and B has no claim to a 
 return of the partial payment, for that was voluntarily made, and no un- 
 derstanding that it should be refunded. Nor can B consider the con- 
 tract rescinded without the default or consent of A.^ In such a case, it 
 seems, A, after the time set, might give notice to B, or perhaps with- 
 out notice, make a fair sale of the property, and if that did not produce 
 sufficient to pay the balance due him on the contract, after deducting 
 the fair expenses, he might bring suit against B on the contract, and re- 
 cover the residue of his damages, or without such sale he might sue on 
 the contract for the balance of the price agreed to be paid ; but then the 
 fact that he had the benefit of the property in his possession would go 
 by way of recoupment or reduction of the damages. If A, before 
 the time set for the delivery, should sell the property to others, or in 
 any manner disqualify himself from being able to comply with the con- 
 tract, or refuses to proceed in the contract according to its terms, then 
 B would be at liberty to consider the contract as rescinded, and might 
 recover back the part of the price he had advanced, or he may seek to 
 recover his damages by a suit on the contract. 
 
 CHAPTER XI. 
 
 BAILMENT. 
 
 § 1. Bailment is the delivery of a thing in trust for some special pur- 
 pose, upon an express or implied promise on the part of the bailor to 
 conform to the object of the trust. And of which there are three kinds: 
 1, those in which the trust is for the benefit of the bailor; 2, those in 
 which the trust is for the benefit of the bailee ; and 3, those in which the 
 trust is for the benefit of both parties. The first embraces deposits and 
 
 ' See the case of Oxendale c.s. Wetheral, 9 B. and Cer. R. 369. Also, Bowker 
 vs. Hoyt, 18 Pick. R. 555 ; Britten vs. Turner, 6 New Hamp. R. 481 ; Fenton 
 vs. Clark, 11 Vermt. R. 557. See ante, I 27, u. 
 
 2 Ashbrook vs. Hite, 9 0. S. K. 360 ; Ketchum vs. Evertson, 13 Johns. R. 359. 
 
CHAP. XI.] BAILMENT. 285 
 
 mandates ; the second, gratuitous loans for use ; and the third, pledges 
 or pawns, and hiring and letting to hire. 
 
 § 2. Before treating of the obligations of the bailee in the various sorts 
 of bailments, which may be arranged under one or the other of the fore- 
 going divisions, it will be necessary to treat of the various degrees of 
 care or diligence recognized by law, and principles applicable to bail- 
 ments in general. There are infinite shades of care or diligence, from 
 the slightest momentary thought to the most vigilant anxiety; but ex- 
 tremes in this, as in most other cases, are inapplicable in practice. 
 There may be a high- degree of diligence, a common degree of diligence, 
 and a slight degree of diligence ; and these, with a view to the busi- 
 ness of life, seem all that are necessary to be considered. 
 
 § 3. Common or ordinary diligence is that degree of diligence which 
 men in general exert in respect to their own concerns ; — or it is the care 
 which every person of common prudence, and capable of governing a 
 family, takes of his own affairs. Although this is a very variable 
 standard, yet this is the only approximation that can be made referable 
 to the country, time, and circumstances in which the case may happen. 
 That may be said to be common or ordinary diligence, in the sense of 
 the law, which men of common prudence exercise in their affairs in 
 the age and country in which they live. Thus, in many parts of the 
 country, where thefts are not common, it is quite usual to leave- barns, 
 in which horses are kept, without being locked by night; but in cities, 
 where the danger is much greater, and temptations more pressing, it 
 would be deemed a great want of caution to do the same. What then 
 is usually done in a country, in respect to things of a like nature, whether 
 more or less in point of diligence than is exacted in another country, 
 becomes in part the general measure of diligence. 
 
 § 4. The custom of trade and the ordinary course of business also 
 have an important influence. If, in the course of a particular trade, par- 
 ticular goods are usually left without any guard or protection during the 
 night, and they are stolen, the bailee may not be answerable for the loss, 
 although for the like loss of other goods not falling under the like pre- 
 dicament, he might be responsible. The bulk or value of the article 
 may also materially affect the nature of the diligence; for a man would 
 not be expected to take the same care of a bag of grain as of a bag of 
 money ; or of a trunk of goods as of a box of diamonds or other jewelry ; 
 or of rough materials as of a specimen of the fine arts. The bailee, 
 therefore, ought to proportion his care to the injury or loss which is 
 likely to be sustained by any improvidence on his part. 
 
 § 5. High or great diligence is, of course, extraordinary diligence, or 
 that which every prudent man takes of his own concerns ; and low or 
 slight diligence is that which persons of less than common prudence, or 
 of any prudence at all, take of their own concerns. A person may be 
 
286 PRIVA TE LA W. [book ii. 
 
 intelligent, and yet destitute of prudence or care. The measure of slight 
 diligence is to be drawn from the diligence which men, habitually care- 
 less or of little prudence (not entirely inattentive), generally take in their 
 own affairs. 
 
 § 6. These three degrees of diligence are followed by those of negli- 
 gence, which have a corresponding division ; — for negligence may be 
 ordinary, or less or more than ordinary. Ordinary negligence may be 
 defined to be the want of ordinary diligence, and dight negligence may 
 be the want of great diligence, and gross negligence may be the want 
 of slight diligence. And thus he who omits ordinary care is respon- 
 sible at least for ordinary negligence ; and he who is responsible for 
 being merely less diligent than very careful men, cannot be responsible for 
 more than slight negligence ; and he who omits even slight diligence, 
 fails in the lowest degree of prudence, and is grossly negligent. 
 
 § 1. Negligence, strictly speaking, is not permitted in any contract ; 
 but a less rigorous construction prevails in some cases than in others. 
 The law considers diligence to be in some measure, as before observed, 
 a relative term, and must be judged of from the nature of the bailment 
 and the intentions of the parties. For he who asks a favor has no 
 right to expect to be absolved from a proportionate care ; and he who 
 accepts a burden ought not to be required to be as scrupulously exact 
 as if he received a benefit. But no negligence, however gross, will of 
 itself amount to a fraud, though, when connected with other circum- 
 stances, and in bad faith, it may be evidence leading to it. For gross 
 negligence may be consistent with good faith and honest intentions, 
 arising from inadvertent carelessness ; but to constitute fraud, in our 
 law, there must be an evil design, or, at least, a want of good faith. 
 
 § 8. The next consideration is, how the law applies the various 
 degrees of diligence and negligence to the different sorts of bailment. 
 And here the doctrine adopted seems at once rational, just, and con- 
 venient. When the bailment is for the sole benefit of the bailor, the law 
 requires only slight diligence on the part of the bailee, and of course only 
 makes him answerable for gross neglect. When the bailment is for the 
 sole benefit of the bailee, the law requires great diligence on his part, 
 and makes him responsible for slight neglect. When the bailment is re- 
 ciprocally beneficial to both parties, the law requires ordinary diligence 
 on the part of the bailee, and makes him responsible for ordinary neglect. 
 
 § 9. It follows, as a natural consequence from these principles, that 
 bailees in general are not responsible for losses resulting from inevitable 
 accident, or irresistible force, although they may become so liable by 
 special contract, or (as we shall hereafter see) by some positive policy 
 of the law. By inevitable accident, commonly called the act of God 
 (actus Dei nemini facil injuriam), is meant any accident produced by 
 irresistible physical causes, such as a loss by lightning and storms, by 
 
CHAP. XI.] BAILMENT. 287 
 
 the perils of the sea, by inundations and earthquakes, or by sudden 
 death or illness. By irresistible force is meant such an interposition 
 of human agency as is, from its nature and power, absolutely uncon- 
 trollable. Of this nature are losses occasioned by the inroads of a hostile 
 army, i.e. the public enemy, or by pirates, who are deemed enemies by 
 the whole human race; or by robbery, whether such robbery be by 
 robbers on the highway or by breaking open a house, they are equally 
 considered irresistible. 
 
 § 10. But a loss by a mere private or secret theft is not considered 
 irresistible, and whether it excuses the party or not, depends upon the 
 nature of the bailment and the particular circumstances of the case. If 
 the proper degree of diligence has been used by the bailee, notwith- 
 standing which a loss by such theft ensues, he is not responsible. These 
 principles, it is understood, may be varied by any express contract be- 
 tween the parties, and subject to exceptions made by the policy of the 
 law as to a certain class of bailees, which will be hereafter explained. 
 And it may be here also mentioned that there are a number of legal 
 principles, which are elsewhere treated, that are applicable to bailments 
 in general, as who are competent parties to a contract, the transfer of 
 property to defraud creditors, confusion of goods, and the like. 
 
 I. BAILMENTS WHICH ARE BENEFICIAL TO THE BAILOR. 
 
 § 1 1. There are two species of bailments which are to be arranged 
 under this head : I. Deposits ; and II. Mandate.^ 
 
 I. A deposit is a naked bailment of goods to be kept for the bailor 
 without recompense, and to be returned when the bailor shall require it. 
 
 § 1 2. It is essential to this species of bailment that the thing be actu- 
 ally delivered to the bailee, for, as the bailment is gratuitous, no valid 
 obligation is as.sumed until the custody of the thing be received. The 
 deposit must ordinarily be to some other person than the owner; but 
 if, by mistake or otherwise, the real owner receive his property on de- 
 posit, his obligation to return it is extinguished, unless some other per- 
 son has acquired a right, interest, or lien which he is bound to respect. 
 But it is not essential that the depositor should have an absolute title ; 
 it is sufficient if he has a special property or possession, for even a 
 wrong-doer may lawfully deposit, and recover back against every one 
 but the true owner. 
 
 § 13. When a deposit is properly made, the obligation arising from 
 that fact, on the part of the depositary, consists of two things : first, 
 that he shall keep it with reasonable care ; secondly, that he shall, upon 
 request, return it to the depositor. 
 
 • > Post, I 20. 
 
238 PRIVATE LAW. [book ii. 
 
 § 14. First, then, as to what constitutes reasonable care. The gen- 
 eral rule is that it is proportioned to the nature and value of the article 
 and the danger of the loss ; and the measure of that care is slight dili- 
 gence, and consequently the bailee is responsible for gross carelessness 
 only. If he takes the same care of the goods bailed as of his own, that 
 ordinarily will repel the presumption of gross negligence ; but he may 
 be still chargeable, if the negligence oe such as even a person of slight 
 diligence would not be guilty of, for as a man may, with respect to his 
 own property, encounter risks from views of particular advantage, or 
 from a natural disposition of rashness, or from the spur of the occasion, 
 which would be entirely unjustifiable in respect to the custody of the 
 goods of another, so, on the other hand, he will not be excused on the 
 ground of the loss of his own goods, when he has shown a reckless or 
 wanton carelessness. 
 
 § 15. When a box or a casket is deposited, the value of the contents 
 of which is unknown to the bailee, the reasonable rule seems to be that 
 if he had no ground to suppose that the box or casket contained any 
 valuables whatsoever, he would be bound only to such reasonable care as 
 would be required of depositaries in cases of articles of common value ; 
 and in case of gross negligence, he ought to be held responsible to the 
 extent of what he might fairly presume to be the value of the contents. 
 If, however, there were a meditated concealment of the value of the 
 contents, with a view of inducing him to receive the bailment, which he 
 would not have received or exposed as he did if he had been made ac- 
 quainted with the facts, then the transaction would be deemed a fraud 
 upon him, or the loss would be deemed one occasioned by the bailor's 
 own folly or laches, and the bailee would not, even in case of gross 
 negligence, be responsible beyond the value of the bo.x or casket itself, 
 without the contents. 
 
 § Ifi. The depositary, as a general rule, ought not to use the thing 
 deposited, without the express assent of the bailor, or unless the assent 
 may be presumed from the nature and manner of the deposit. Where 
 the use would be for the benefit of the thing deposited, his assent may 
 be readily presumed ; but that presumption would be readily rebutted 
 where the use would be perilous, either from the value or the nature of 
 the thing deposited, or where the deposjitor retained such control over 
 it, or made the deposit in such a manner as would bo inconsistent with 
 such a presumption. Thus, if books are lodged in a trunk and locked 
 up, the use of, them would seem to be impliedly prohibited, especially 
 if the key is kept by the bailor ; but if the books are in an open chest or 
 bookcase, or are generally accessible, a consent to the use of them by 
 the depositary may be fairly presumed. 
 
 § 17. Secondly, as to the return. The depositary has no property in 
 the deposit, — the possession of the depositary is also the possession of 
 
CHAP. XI.] BAILMENT. 289 
 
 the bailor. He may therefore maintaia trespass against a stranger for 
 an injury to the thing deposited. And if the bailee should sell or other- 
 wise dispose of the deposit, the bailor may follow into whosever hands 
 they may fall, and recover by suit. 
 
 § 18. The deposit is to be returned, on request, to the bailor, or the 
 person who has the legal right, at the place where it is, or ought to be, 
 kept, where there is no other place agreed upon, with any increase or 
 profits which may have accrued from it, unless it be lost or injured with- 
 out the gross negligence of the depositary. Unless there has been a con- 
 version or gross negligence, no action lies for a return until demand and 
 refusal. Where a deposit is made by a party in a special character, or 
 in auler droit, the redelivery must be made to the party entitled to the 
 property, who must, if required, give a reasonable proof of title. But, 
 should different persons claim a return of the same thing, under differ- 
 ent rights, the bailee may be relieved by a bill of interpleader, by which 
 the two claimants are compelled to litigate the claims between them- 
 selves. 
 
 § 19. If the property deposited be attached, or arrested by process of 
 law, or taken into execution as the property of the bailor, from the pos- 
 session of the depositary, and without his negligence or fraud, he will be 
 excused from a redelivery. All necessary expenses in preserving the 
 deposit are to be reimbursed to the bailee before a redelivery can be re- 
 quired, and he has a lien upon the deposit for the payment. If the de- 
 positary improperly refuse to deliver the deposit, he afterward holds it 
 at his own peril, and upon a recovery, interest upon the value of the 
 deposit, since the refusal, will be added to it as compensation by way 
 of damages. 
 
 § 20. II. A mandate is defined to be a bailment of goods without re- 
 ward, to be carried from place to place, or to have some act performed 
 about them. This species of bailment is so nearly allied to deposit that 
 many of the rules and principles of law applicable to that is equally so 
 to this. It is necessary that the bailment should be gratuitous, and so 
 understood by the parties, but in all other respects, as to the contract, 
 it is governed by the same rules and principles as in other agreements, 
 particularly deposits, which, in their nature and reason, are applicable to 
 this kind of bailment. 
 
 § 21. The contract being of itself gratuitous, and without considera- 
 tion, it is a nudum, pactum, and therefore no action will lie upon the 
 naked promise to enforce the promise. At common law no action lies 
 in such cases for a mere non-performance ;' yet, if the mandatary entur 
 upon the execution of his agreement, he is bound to perform it faithfully 
 and according to the terms of it. The mandatary is liable for a niis- 
 
 1 Yelverton's E. (Met. ed.) 4, n. (11). 
 19 
 
290 PRIVA TE LA W. [book ii. 
 
 feasance, and not for a non-feasance ; for he is not permitted to commit 
 a tort, and then to defend himself upon the imperfect obligation of the 
 contract. He is at liberty to renounce his undertaking, but he must do 
 it in such a manner as not to commit an absolute wrong to the bailor. 
 
 §22. The mandatary is bound only to slight diligence, and of course 
 is responsible, like the depositary, for gross negligence only. If be vio- 
 late his trust by misuser, or does any act inconsistent with, or in fraud 
 of his contract, he will be liable for all the resulting losses or injuries. 
 And, in most respects, he is bound to return and account for the prop- 
 erty in the same manner as in case of a deposit, where the express or 
 implied terms of the contract do not alter his obligations and respon- 
 sibility. 
 
 II. BAILMENTS WHICH AEE BENEFICIAL TO THE BAILEE. 
 
 § 23. A loan for use (the only kind of bailment which falls in this 
 class) is defined to be a bailment of goods to be used by the bailee for 
 a limited time without rew.ard. In the civil law it was called cornmo- 
 datum, or mutuum, and the difference between them was, that in a 
 commodatum the goods were lent to be specifically returned ; in a mu- 
 tuum the goods were to be consumed, and to be repaid in property of the 
 same kind. Thus, corn, or wine, delivered to one to be consumed, and 
 to be repaid in kind, is a case of mutuum ; but if a horse be gratuitously 
 lent for a journey, it is a case of commodatum. 
 
 §■24. It is not necessary that the lender should have absolute prop- 
 erty, for even one having a special property, or lien, may lend to the 
 general owner. The loan must be gratuitous, and the use of the thing 
 confined to the use expressed or implied in the particular transaction. 
 It is strictly personal, unless from the circumstances a different intention 
 may be presumed ; and the borrower, as the loan is exclusively for his 
 benefit, is bound, upon the common principles of bailment already 
 stated, to use extraordinary diligence, and of course is responsible for 
 slight neglect in relation to the thing loaned. But he has no right 
 to demand a greater degree of diligence than the bailee, under the cir- 
 cumstances, is obviously capable of. Thus, if a spirited horse is lent to 
 an inexperienced youth, or to a weak or inefficient person, known to be 
 such by the lender, he must be satisfied with such degree of diligence 
 as the borrower, from his age, character, and known habits, may fairly 
 be expected to use, for that would be the natural implication of the 
 transaction. 
 
 § 25. What will be deemed slight neglect, or want of extraordinary 
 diligence, must depend upon the circumstances of each particular case. 
 The borrower is generally exempt from all liability for losses by inevi- 
 table accident, or by casualties, which could not be foreseen or guarded 
 
CHAP. XI.] BAILMENT. 291 
 
 against by a high degree of diligence, if they be not connected with 
 fraud or fault on his part. If there be an excess in the nature, 
 time, manner, or quality of the use beyond the contract, or what may 
 be fairly inferred to be within the intention of the parties, the borrower 
 will be responsible even for accidents. 
 
 § 26. The thing borrowed must be duly returned according to agreed 
 or implied terms of the loan, with the increase, and everything acces- 
 sional to it, to the real owner, or his legal representative, unless taken 
 from him by due process of law against the owner, as in case of deposit. 
 The loan passes no right of property to the borrower beyond the tem- 
 porary use, and the lender may revoke the loan whenever he chooses ; 
 or, should the borrower part with the property in any way whatever, 
 the owner may claim it wherever he can find it. Whenever the loan 
 amounts to a mutuum, i.e. articles to be consumed and returned in 
 kind, as provisions, money, and the like, the right of property is trans- 
 ferred by the loan, and an absolute property maj' be conveyed to any 
 bona fide holder. 
 
 III. BAILMENTS WHICH ARE BENEFICIAL TO BOTH PAETIES. 
 
 § 27. This species of bailment includes two kinds : I. Pledges and 
 pawns ; and II. Hiring and letting to hire. 
 
 I. A pledge or pawn is the bailment of goods to a creditor as security 
 for some debt or engagement. In the civil law that was property, called 
 a pignus (pledge), where the thing was delivered to a creditor ; if it re- 
 mained with the debtor, though pledged as security, it was called an 
 hypotheca (hypothecation). And in the common law there is a difference 
 between a mortgage of personal property and a pawn or pledge, which are 
 often confounded. A mortgage is an absolute pledge where the legal 
 property passes, with a condition of defeasance. A pledge or pawn of 
 goods is a deposit of them as security, and a delivery is essential. The 
 general property does not pass as it does in case of a mortgage.' 
 
 § 28. The bailee has a special property in the goods pledged, and may 
 maintain an action for an injury to them by either a stranger or the gen- 
 eral owner. He may transfer his interest to another, and this may be 
 done by an absolute sale, though such sale will not be operative beyond 
 his interest. After the debt becomes due and the pledge forfeited, in 
 case of a mortgage, the-property at law becomes absolutely vested in a 
 pledgee, but subject to be redeemed on payment of principal and by a bill 
 in equity, unless the right of the pledgor has been previously foreclosed. 
 But in case of a mere pledge, the property does not even become vested 
 until some proceedings to foreclose have taken place. After the debt 
 
 'Telverton's R. (Met. ed.) 179, n. (1). 
 
292 PRIVATE LAW. [book ii. 
 
 becomes due (and if there is no time set, it becomes due upon demand 
 or reasonable time), the pledgee may proceed in one of three ways to 
 foreclose or definitely fix the rights of the parties. 1st, he may proceed 
 to obtain a judgment upon the debt against the pledgor, and take the 
 goods in execution ; 2d, he may proceed to foreclose in equity ; or 3d, 
 he may give notice to the pledgor, and proceed to sell the goods at public 
 vendue, and apply the proceeds to pay the debt. 
 
 § 29. II. Hiring and letting to hire. This second division of the 
 third class of bailment has received an appellation in the law borrowed 
 from the civil law — that of locatio, which means a hiring ; and, as there 
 are many kinds of hiring, the subject has been divided and classified 
 thus : 1. Locatio rei — where a thing is hired, and the hirer acquires the 
 temporary use of the thing bailed. 2. Locatio operis faciendi — v.'here 
 the bailee is hired to do some work or bestow some care on the thing 
 bailed. 3. Locatio operis mercium vehendarum — where the bailee is 
 hired to carry the goods for the bailor from one place to another. 
 
 §30. 1. Locatio rei. Where a person hires a thing of the owner, and 
 is to pay a compensation therefor, the transaction is mutually beneficial 
 to both parties. In this case, in accordance with the principles adopted, 
 the bailee is bound onlj' to take ordinary care of the thing bailed. But 
 the degree of care will vary according to the nature of the thing and the 
 circumstances. A valuable watch or a valuable horse will require 
 greater care than ordinary articles of the kind. For the rule must be, 
 that the hirer is bound to render that care, in each case, the owner has a 
 right to expect that a man of ordinary capacity and caution would take 
 of the same thing, if it were his own, under the same circumstances. To 
 the same extent the hirer is responsible for those who act for him in his 
 employment. If such thing is sold, the owner may recover it against a 
 bona fide purchaser, for the rule here is, as in other like cases, caiieat 
 emptor. 
 
 § 31. The owner must deliver the thing hired in a good condition to 
 be used as contemplated by the parties, and should keep it in order 
 unless the circumstances implied the contrary. The owner has no right 
 to interfere with the property during the time agreed upon for the hire-, 
 unless under some extraordinary circumstances of abuse that might 
 excuse it. There is an implied obligation on the part of the hirer to 
 use the thing only for the purpose and in the manner contemplated, and 
 in no way tp abuse it. He is bound to return the property at the time 
 appointed, or within the usual or reasonable time, when none has been 
 specified ; and that must be determined by the nature and circumstances 
 of each particular case. 
 
 § 32. The hirer by the contract acquires a special property in the 
 thing hired, which he may maintain against any one except the owner, 
 and against him so far as the terms of the contract, expressed or implied, 
 
CHAP. XI.] BAILMENT. 293 
 
 will wan-ant. He who lets to hire is entitled to his compensation 
 according to the terms of the agreement expressed or Implied ; where no 
 price was determined by the contract, there is an implied promise to pay 
 a reasonable price. He is entitled to the return of his property at the 
 expiration of the time for which the thing was hired ; or whenever the 
 contract is terminated, which may be by the act of either party after a 
 reasonable time, when there has been no fixed time by the contract; or 
 by the mutual agreement of both parties ; or by operation of law when 
 the hirer becomes the owner of the property ; or by the destruction of 
 the thing hired. 
 
 §33. 2. Locatio operis faciendi. The instances in which the bailee 
 is bound to do some work or bestow some care upon or about the thing 
 bailed are numerous, but may be included in cases where — 1, mechanics 
 are employed in the manufacture or repair of the article bailed to them ; 
 2, warehousemen or wharfingers are charged with the custody of the 
 thing bailed ; 3, innkeepers receive the goods of guests ; and 4, common 
 carriers. 
 
 § 34. (1) Where mechanics are employed to make up materials fur- 
 nished, or to alter or repair a specific thing, the contract is one of mu- 
 tual benefit, and only ordinary care is required. But as the character 
 of their employment greatly differ, so will the caie ordinarily required 
 of them vary; for where lumber has been delivered to a joiner to 
 make a box, it is not expected that his care of the materials furnished 
 will be that vigilant kind expected of a goldsmith to whom a diamond 
 ring has been delivered to be repaired; yet in both instances only 
 ordinary care is required, and that is measured by the character of 
 the employment. This is not only the case as to the care to be be- 
 stowed upon the materials furnished, but it is so, also, as to the degree 
 of skill he is to apply on his work, for all mechanics and professional 
 men hold out an implied promise that their work or business shall be 
 well performed, or at least to an ordinary degree. But if the employer 
 should employ a person whom he knows does not possess the requisite 
 skill, he has no remedy for the lack of it, for it was his own folly to 
 employ him. 
 
 § 35. Where a workman is employed to make a thing out of bis own 
 materials, it is a case of purchase and sale, or hire of labor, and not of 
 bailment ; but if the principal materials are delivered to him, it is a case 
 of bailment, although he is to add his own materials to them. In the 
 materials so delivered to him he has a special property, upon which 
 he may maintain an action for any injury done to them. If they 
 perish in his hands, without his fault, the owner loses his property at 
 least, if not also bound to pay for the work put upon it at his request. 
 Where an article is delivered, and the person who delivered it is to have 
 another article for it ; where wheat is delivered, and he is to take his pay 
 
294 PRIVATE LAW. fBooK n. 
 
 in flour, without reference to its being from the same wheat ; or silver is 
 delivered, and he is to receive in return a goblet, it is not a case of 
 bailment, but a sale of property and a contract for the article that is to 
 be returned. But where the identical thing delivered is to be returned, 
 though in an altered form, the contract is one of bailment. In the first 
 case, it being a sale, the property is at the risk of the purchaser ; but in 
 the last case, it being a case of bailment, the risk is upon the bailor, 
 when lost without the fault of the bailee.* 
 
 § 36. Where materials are delivered to be improved or made into an- 
 other kind of an article, and the work on it is not done satisfactorily, 
 various rules have been adopted to determine the rights of the parties, 
 dependent upon the circumstances. If the work has been so badly or 
 unskillfully done as that the article has lost its value or use to the bailor, 
 he may abandon it, and may be entitled to damages from the workman, 
 who will be entitled to nothing for his work. If the bailor receives it 
 as of some use, the workman may claim what his work is reasonably 
 worth, and the bailor claim damages because the work was not done 
 as he had a right to expect it. But much will depend upon the special 
 contract made between the parties, in which case each party will bo 
 bound to make his part of the contract good. If the work is so unwork- 
 man-like and unskillfully done that it does not answer what was in- 
 tended, the employer may refuse to take the article, and be entitled to 
 the damages he has sustained ; but if he receives it, he will only be lia- 
 ble for what the work is reasonably worth, deducting his damages. 
 But for whatever the workman is entitled to receive, he has a lien upon 
 the thing until it is paid. 
 
 § 37. (2) Warehousemen are another class of bailees whose interests 
 are mutual with the bailor, and are therefore only held to ordinary dili- 
 gence. Where they only receive and deliver goods in the ordinarj' line 
 of their business at their wharf or warehouse, they are merely bailees, 
 and the ordinary rules apply to them ; but where the}' form a part of a 
 line of common carriers, while the goods are in their possession they 
 may be responsible as such common carriers, upon whom the law places 
 a higher degree of responsibility, as a matter of public policy. 
 
 § 38. (3) Innkeepers. Inns are a class of public-houses that pass 
 under the various names of inn, hotel, tavern, or house of entertainment, 
 
 iParson-s's Cont. G13 and n. (k) ; Johnson vs. Miller, 16 O. E. 431; Ingle- 
 bright I's. Hammond, 19 O. R. 337 ; Chase vs. Washburn, 1 O. S. E. 244. Wheat 
 delivered to a miller, and by agreement put into a bin by measure, and with 
 that of the bailee, the bailor does not lose his right of property, but he retains a 
 property in so many bushels of the common stock as he put in, which are held 
 by the miller as bailee. Nor would it alter the transaction that he might take, 
 when he pleased, a barrel of flour in payment of so many bushels of wheat. 19 
 O. R. 337. 
 
CHAP. XL] BAILMENT. 295 
 
 and have been defined to be, houses where the traveler is furnished 
 with everything which he has occasion for while on his way,' and are 
 distinguished from a mere coffee-house, or eating-house, or boarding- 
 house. Public policy imposes upon an innkeeper the highest degree of 
 responsibility, and makes him an insurer of the property committed to 
 his care by his guests, against every accident, except the act of God or 
 the public enemy, or the neglect or fraud of the owner of the property. 
 He would, therefore, be liable for any loss occasioned by his own ser- 
 vants, by other guests, or by robbery or burglary from without ; nor 
 will sickness or absence at the time fexcuse him, for he is bound to have 
 competent servants or agents. 
 
 § 39. The innkeeper will be excused if the, loss be occasioned by the 
 servant of the owner, or by his own companion, or by his own negli- 
 gence, or where he retained personally or exclusively the custody of his 
 goods. But it will not excuse the innkeeper that the guest exercised 
 some choice as to his room, or that a key was furnished him and he 
 neglected to use it. The guest, however, may be required to place his 
 goods in a particular place, or under lock, or the innkeeper would not 
 be answerable. If the precautions are reasonable, and the guest 
 neglects them and exposes his goods to greater hazard, the innkeeper is 
 exonerated. 
 
 § 40. The innkeeper is bound to receive and accommodate travelers 
 as guests, unless there be a reasonable excuse. If he refuses, without 
 such reasonable excuse, he renders himself liable to an action ; for all 
 persons who hold themselves as engaged in such public employment as 
 innkeepers, common carriers, and the like, are bound, under implied un- 
 dertaking, to servre those who call on them in the line of their business, 
 unless they have a reasonable excuse, — for he has a lien upon the goods, 
 baggage, and. property of the guest put into his care for the payment of 
 the bill. But mere boarders at his house are not included within these 
 rules as to his traveling guests. Itseems that the distinction between his 
 guests and boarders is this :^that all are guests who call as transient 
 or temporary customers, who are there without any bargain as to time, 
 and may go when they please, paying the customary price. This is the 
 general rule, but will not prevent an actual traveler being such guest, 
 becau.ie he has announced that he wishes to be so accommodated for a 
 certain number of days. 
 
 § 41. (4) Common carriers sxe those who are engaged, as a business, in 
 the transportation of goods or passengers, on their line of transportation, 
 for hire, either by land or water." Upon principles of public policy (as 
 in case of innkeepers) they are held to more stringent rules and respon- 
 
 ' Parsons on Cont. 613, and n. (h). 
 
 2 Bowman vs. Hilton, 11 0. E. 303 ; Samms vs. Stewart, 20 O. K. 69. 
 
296 PBIVATE LAW. [book n. 
 
 Sibility than a general bailee. They are not only responsible for any 
 loss of or injury to the goods they carry, caused by negligence, but the 
 law raises an absolute and conclusive presumption of negligence when- 
 ever the loss occurs from any other cause than that of the act of God, or 
 the public enemy. He is, therefore, held as an insurer of the goods except 
 in these two cases. Carriers of passengers are equally responsible for 
 the goods and baggage of their passengers, or goods they take for trans- 
 portation. Carriers are thus bound for the goods the}^ receive from the 
 time they are delivered to them, and so continue until they are de- 
 livered to the owner, or his agent, at the termination of the transporta- 
 tion, at the proper place of delivery. There is, also, an implied promise 
 that this shall be done by the usual route, and w'thin a reasonable 
 time. 
 
 § 42. A common carrier receiving goods in the ordinary course of 
 business, and in the proper line of transit, has a lien for the freight and 
 charges paid, although the goods may have suffered damage before they 
 reached him, while in the'hands of the preceding carrier. In so receiving 
 goods and advancing freight in good faith, he is to be regarded as the 
 agent of the owner, and not of the preceding carrier. A person who does 
 not make the carrying of goods a business, nor hold himself out as 
 such, is not a common carrier, though he may, occasionally, carry for 
 hire, and is therefore not responsible as such, but merely as an ordinary 
 bailee, of whom is required ordinary care and diligence. 
 
 § 43. A common carrier may, by special contract, restrict his liability 
 as insurer against losses in a particular manner; he cannot thus exempt 
 himself from losses occasioned by any neglect of that degree of diligence 
 pertaining to his peculiar character as bailee, and the burden of proof of 
 showing it to be within one of the excepted cases under the contract 
 rests upon him.' Such exemption cannot be secured by a general notice 
 to the public, which may or may not be known to the party engaging 
 the service of the common carrier. 
 
 § 44. Carriers are not liable for any loss from natural decay of perish- 
 able goods, such as fruit and the like, nor loss from insecure casks by 
 leakage or evaporation and the like. If there is any extrinsic value to 
 the goods that would not be indicated by their appearance, the owner 
 should communicate that fact to the carrier, for otherwise the carrier 
 would only be liable, in case of theft or accident, to the apparent value. 
 For it would be bad faith on the part of the owner to put on the carrier 
 a greater responsibility than he was aware of, and thereby put him off 
 his vigilance in guarding against it. 
 
 1 Davidson vs. Graham, 2 O. S. E. 131 ; Graham vs. Davis, 4 O. S. R. 362. 
 
CHAP, xii.] NEGOTIABLE PAPER, ETC. 297 
 
 CHAPTER XII. 
 
 NEGOTIABLE PAPER AND MONEY OONTEACTS, 
 
 § 1. Ix was an established principle of the common law, and one 
 founded upon the reason of the matter, that an action could not be 
 brought upon a simple contract by any one, except the person to whom 
 the promise was made and intended to be paid. Choses in action were 
 not so assignable as to enable the assignee to sue in his own name. But 
 contrary to this principle, there has come into practice a class of con- 
 tracts in writing, that through the commercial world are transferable 
 from hand to hand, and enable the holder to maintain suit on them in 
 his own name. These are known by the designation of negotiable paper, 
 and consist of promissory notes, bills of exchange, hank bills, bank 
 checks, and the like. When these are made payable to the payee "or 
 bearer," " or order," they are by universal law assignable when properly 
 transferred. It has been said that this was an exceptional law — that 
 they were mere choses in action, made negotiable by the policy of the 
 law merchant, and the necessities of trade and convenience of business. 
 But may it not be rather by the force of the promise itself, by which it 
 is made payable to order or bearer ;^ and therefore not exceptional, but 
 in accordance with the common law itself 
 
 § 2. The great difference between negotiable paper and ordinary con- 
 tracts consists in their capability of being assigned and transferred to 
 others, so as to enable the holders and real owners of them to make de- 
 mand and sue upon them in their own names. They are such natural and 
 simple expedients to facilitate trade and the transaction of commercial 
 business, giving such an extension to credit and circulation to capital, 
 as in some measure to answer the purpose of cash, that it seems that 
 they must have been in use at an early period in the commercial world, 
 as fragments of history prove ; but the origin of their general use, as 
 now known in commercial business, belongs to an early period in modern 
 history 
 
 I. PEOMISSOEY NOTES. 
 
 § 3. A promissory note is an express promise in writing to a person 
 named in it, or his order, or to him or bearer, to pay a certain sum of money, 
 at a certain time, or on demand. Such notes, as also bills of exchange, 
 
 1 Parsons's Cont. 202. 
 
298 PRIVATE LAW. [booIb: n. 
 
 are called negotiable paper, and have a higher validity and sanction 
 given to them when in the hands of innocent holders for valuable con- 
 sideration, and obtained in the regular course of business. The words 
 "value received" are frequently added, but they add nothing to its 
 validity ; for every promissory note, whether negotiable or not, implies 
 a consideration.^ But when made payable to the payee, without adding 
 the words "or order," or "or bearer," or in anything else than money, 
 or containing conditions or stipulations inconsistent with the character 
 of such negotiable paper, it loses its negotiable qualities and becomes a 
 mere chose in acition. When payable, however, in " current Ohio bank 
 notes," it has been held here to be negotiable, under our statute declar- 
 ing that notes for any sum of money certain shall be negotiable.^ 
 
 § 4. To constitute a negotiable note, it must be payable at all events, 
 and the event must be such that it must happen in the due course of 
 nature; therefore a note payable "on the final estimate of a job of 
 work" is not negotiable, for that event may or may not happen.' A 
 promissory note, payable on demand, or no time of payment mentioned, 
 is payable on delivery ;* and when payable a certain number of days from 
 date, and there being no date to it, the time will commence from the 
 day of delivery as the day of its date. The fact that the maker or in- 
 dorser of negotiable paper adds a seal to his name does not bring it 
 within the rules of a sealed instrument the same as a bond or other 
 " writing obligatory," but the paper is to be assimilated to commercial 
 paper, and subject to all its incidents as to mode of negotiation, the 
 filling of blanks, and the like, at least while in the hands of innocent 
 holders.^ 
 
 § 5. There are but few things that can be alleged against the recovery 
 
 on such negotiable paper in the hands of an innocent holder. If the 
 
 note or bill be a forgery, or, which is the same thing, be altered in a 
 
 material part, without the consent of the maker, or the person ostensibly 
 
 responsible, such are not binding, and the defense may be made against 
 
 even an innocent holder. So if a statute declare an instrument, under 
 
 certain circumstances, void. But the want or failure of consideration 
 
 cannot be so set up as a defense. If commercial paper is executed for one 
 
 purpose, but applied to a wholly different purpose, sucfi misapplication,, 
 
 if proved to have been made with the knowledge of the holder, would 
 
 defeat his recovery ; but if he were ignorant of such objection, and 
 
 received it in due course of business before it was due, the defense 
 
 would be rejected, except in such cases as gaming notes and the like, 
 _i 
 
 1 Duganw. Campbell, 1 0. R. 115; "White vs. Richmond, 16 0. R. 5. 
 
 a Swaetland vs. Oreig, 15 O. R. 118. 
 
 3 Werdler vs. Kauffman, 14 0. R. 455. 
 
 < Hill vs. Henry, 17 0. R. 9; Jones vs. Brown, 11 O. S. R. 601. 
 
 6 Bank of St. C. vs. Smith, 5 0. R. 222. See 10 O. S. R. 19. 
 
CHAP. XII.] NEGOTIABLE PAPER, ETC. 299 
 
 that are made void by statute.* And whea such innocent holder re- 
 ceives a negotiable paper in good faith, in payment of a pre-existing 
 debt, it is the same as though paid in money, and the maker cannot set 
 up equities between him and the payee without proving notice to the 
 holder at the time he received it ;' and even then he would be protected 
 in case he received it from a holder who was himself protected. 
 
 § 6. Although such hona fide holder is so protected from the defense 
 that the maker might have against the payee, yet in this case, as in 
 every other, it is the duty of every person to use at least ordinary care 
 and prudence in their transactions, to prevent their operating to the 
 prejudice of others.' But in order to protect such hona fide holder 
 against the equities of the maker, it is not necessary that he should 
 have paid the /ace of the paper, but he must have paid its fair and rea- 
 sonable value,* or the want of it would be evidence that he was not a 
 bona fide holder, or did not receive it in the due course of business. 
 Where suspicion is thrown over the rights of the holder, it becomes 
 him then to show the fairness of the manner in which he obtained it. 
 
 § 7. The object of having negotiable paper is to enable the holder to 
 rely upon it for absolute payment, without regard to any equities be- 
 tvreen the maker and the original payee. This is a matter of public 
 policy, and a great convenience in the transaction of business. It fre- 
 quently answers the same purpose as money, and saves the counting 
 and transfer of it, and eventually the paper may be settled by setting 
 off one set against another. In order that such paper (either promis- 
 sory notes or bills of exchange) should be negotiable, it must be pay- 
 able to order or bearer. When payable to order it is not negotiable by 
 delivery until the payee indorses it, as evidence of the order, which may 
 be done either by writing the order and signing it, or by indorsing it 
 in blank. If indorsed payable to the order of a particular person, then 
 that checks its negotiability by mere delivery until ordered to be paid 
 without such restriction ; but when payable to bearer, or indorsed with- 
 out restriction, then it is negotiable by delivery, and in that case the 
 holder is held to be, prima facie, the owner, and the production of the 
 paper itself will enable him to recover upon it, at least until the good 
 faith of the manner in which he obtained it is impeached.* 
 
 § 8. When such negotiable paper to order is properly indorsed, or is 
 made payable to bearer, it is transferable by mere delivery ; or it may be 
 indorsed-by the payee to another, who is his assignee, and called indorsee, 
 and so it may be indorsed from one to another without limit ; and each 
 time it is so indorsed it partakes of the nature of a bill of exchange, or 
 
 1 Williams vs. Bosson, 11 0. E. 62 ; Kelley vs. Pew, 18 O. E. 442. 
 
 2 Carlisle vs. Wishart, 11 O. E. 172. " McKesson vs. Stanbery, 3 O. S. E. 156. 
 * Baily vs. Smith, 14 O. S. E. 396. * sterling vs. Kious, 7 0. E. pt. 2d, 237. 
 
800 PEIVATE LAW. [book ii. 
 
 order to pay the amount by the indorser upon the maker to pay the in- 
 dorsee. But in order that any such transfer should have its full effect as 
 a negotiable paper, it should be transferred before it falls due ; for if it do 
 not pass out of the hands of the payee until after it becomes due, it is sub- 
 ject to any defense that the maker might make against it in the hands of 
 the original payee. When payable on demand, or no pay day mentioned, 
 then it becomes due in a reasonable time. If payable on a particular 
 day, by the law of merchants it does not become at maturity, or due, 
 until three days after that mentioned in the paper, and these are called 
 days of grace. In ordinary contracts, that are not negotialjle, when a 
 pay day falls on Sunday, or some day when, according to the custom 
 of the country, no business is done, then it is to be done on the next 
 day, for the law in such cases will not require the contract to be per- 
 formed before its own terms require it ; but where the third day of grace 
 falls on such holiday, then it becomes payable, and the demand should 
 be made on the day before. 
 
 § 9. The student will readily perceive that, between the original par- 
 ties, negotiable papers are subject to the same objection and defense 
 that might be set up in any other contract. It is only in the hands of 
 innocent holders, for valuable consideration, that such defenses are ex- 
 cluded, as before stated. But it will be recollected that there are a few 
 objections to the validity of such paper, that may be set up in the hands 
 of the indorsee, such as are declared void by statute or on the account 
 of forgery. It, therefore, frequently occurs, to ascertain what alteration 
 made in the paper, after delivery, will amount to forgery, or render the 
 instrument void even in the hands of an innocent indorsee. Any alteration, 
 that amounts to a forgery, will undoubtedly render it thus void. The rule 
 is, that a material alteration in a written contract, beneficial to the party 
 or holder making it, will vitiate it and render it void. The doctrine is 
 founded on a presumption of fraud, and an alteration to have such effect, 
 such as will effect some change in the meaning or legal operation of the 
 instrument. An alteration appearing on the instrument, not peculiarly 
 suspicious, and beneficial to the holder, will be presumed to have been 
 made either before its execution or by the agreement of the parties after- 
 ward. The erasure of the name of a surety, by an agreement between 
 the surety and the payee, or bolder, is not such an alteration as will 
 vitiate the instrument as against the principal.' 
 
 § 10. Where such paper has been executed with blanks as to amount 
 or day of payment, and intrusted to another to negotiate and fill up the 
 blanks, the rule is that he who intrusts his name in blank thus to be 
 used is liable to the extent that the person intrusted with it sees fit to 
 fill such blanks, though that be to a larger amount than was agreed 
 
 ' Huntington vs. Finch, 3 0. S. K. 445. 
 
CHAP. XII.] NEGOTIABLE PAPER, ETC. 301 
 
 upon, where the paper is taken in good faith without notice that the au- 
 thority given had been exceeded. The intrusting of such blank is the 
 same as giving a general letter of credit ; and, upon general principles, 
 that he wio trusts another, and puts it in his power to perpetrate the 
 injury, must sustain the loss, where one of two innocent persons must 
 suffer.^ 
 
 § 11. Where a numter of persons sign a note, usually, axiA prima fa- 
 cie, the first signer is considered as principal and the others as sureties, 
 but they may be all principals, and this, at any time, when it becomes 
 material, may be shown by evidence ; but they, are all makers, and in 
 the first instance are originally liable as such. And it has been re- 
 peatedly held that where a person at the time, or before the execution and 
 delivery, writes his name on the back of a promissory note for the pur- 
 pose of giving it a greater credit, prima facie, he is a maker and surety, 
 and maybe treated as such by joining him in the same action as maker, 
 upon the principle that it is immaterial where he puts his name if such 
 were his intentions. But whether he intended to be such, or was only to 
 be held as indorser, was a matter that might be shown by evidence to 
 defeat his being held as principal. In that case he will be held at least 
 as a conditional guarantor, like that of an indorser to an indorsee, only 
 liable upon demand and notice.'' If the holder of such paper and blank 
 indorsement should write over it a guaranty and waiver of demand and 
 notice without authority, the indorser will not be thereby discharged from 
 his contract, but the unauthorized portion of the filling up of the guar- 
 anty will be canceled or disregarded, and the actual contract will be en- 
 forced. It is considered that the holder of a blank indorsement is au- 
 thorized to fill up the indorsement by writing over it a guaranty, in 
 accordance with the contract and intention of the parties, and whatever 
 is so written contrary to it will be stricken out or disregarded. 
 
 § 12. The law governing the responsibility of indorsers is peculiar, 
 and involves only a conditional responsibility, dependent upon a demand 
 being made of the maker at maturity, and notice given of the non-payment 
 to the indorser. A note payable to some one, or bearer, need not be in- 
 dorsed in order to its being negotiable, for it is so by mere delivery, 
 though it may be so indorsed, as has just been seen. But an indorsement 
 in blank, by a third person, which would be disconnected from the note, 
 might readily be inquired into as to its consideration, unless because it 
 w,as in the hands of an innocent holder without notice ; for, if the note 
 were indorsed after its execution and delivery, the indorsement would 
 be void for want of a consideration, unless there be some new consider- 
 
 1 Fullerton vs. Sturges, 4 O. S. R. 529. 
 
 2 Seymour vs. Mickey, 15 O. S. K. 515 ; Bright va. Carpenter, 9 0. E. 139 ; 11 
 Mass. R. 436. 
 
802 PRIVATE LAW. [book ii. 
 
 ation, as the inducing a new holder to take it. Though prima facie, 
 such indorsement would be considered as being indorsed at its execu- 
 tion simultaneously, or subsequently, to induce a new purchaser to 
 - take it, — such would be its position in the hands of an innocent holder 
 without notice. 
 
 § 13. But a note payable to some one, or order, is not negotiable 
 until indorsed by the payee. Such indorsement may be filled up, or it 
 may be in blank. When -filled up, it may be restricted, as " without re- 
 course," or it may increase the responsibility by some guaranty, or 
 waiver of demand and notice, and such special indorsement must always 
 be governed by its own terms. But where the indorsement is in blank, 
 or merely " pay some one, or order," or " some one, or bearer," or " pay 
 the bearer," the indorsement not only orders and authorizes the pay- 
 ment to be made accoi;dingly, but, in law, raises an implied promise on 
 his part that in case the maker does not pay it upon due demand and 
 notice to him, he will himself pay it. Such indorser of a promissory 
 note becomes, by the indorsement, it is said, in precisely the situation 
 of a drawer of a bill of exchange, and the maker in the situation of an 
 acceptor, whose responsibility and duty will be considered when treat- 
 ing of bills of exchange. 
 
 § 14. The indorser, by his indorsement in the usual form, is only 
 liable for the payment of the note in case the holder makes due demand of 
 the maker, and gives due notice of the non-payment to the indorser. This 
 requires the holder, in order to preserve the liability of the indorser, to 
 make a demand of payment of the maker on the third or last day of 
 grace, and immediately give notice of the non-payment to the indorser, 
 as in cases of bills of exchange. But there nre many things that will 
 excuse such demand and notice, as where the indorser has funds in his 
 hands to pay ; or where the making of the note was to accommodate 
 the indorser, who was the real debtor; or where the terms of the indorse- 
 ment did not require it ; or where it is otherwise received. Where a 
 person is mere surety, by signing the note, as maker or guarantor, he 
 is not entitled to such demand and notice. 
 
 II. BILLS OF EXCHANGE. 
 
 §15. A bill of exchange is an order drawn by one on another, re- 
 questing him to pay a certain sum of money to a third person. It is 
 more usually found in the transactions of merchants and bankers, for 
 purpose of exchange, or transfer of money or credit, while promissory 
 notes are more common in every-day transactions of life. They are 
 frequently called mercantile paper ; and when either drawn in a foreign 
 country or made payable there, it is call a foreign bill ; but when both 
 drawn and made payable in this country, it is called an inland bill of 
 
CHAP. XII.] NEGOTIABLE PAPEE, ETC. 303 
 
 exchange. And the statute of Ohio provides that when any bill of ex- 
 change shall be prote.sted for non-acceptance or non-payment, the drawer 
 or indorser shall be subject to the payment of twelve per centum dam- 
 ,ages, if drawn on any person without the United States, and six per 
 centum thereon if drawn on any person within the United States, but 
 without this State. 
 
 § 16. A bill of exchange is transferred and negotiated from person to 
 person in the same manner as stated for promissory notes. If indorsed, 
 the indorser is liable in the same manner. The law implies that the 
 drawer undertakes that the drawee will accept the bill to be paid accord- 
 ing to its terms when presented, and will pay it when due to the holder, 
 in case it is duly presented for acceptance and payment. It being an 
 order on the drawee, it should be presented to the drawee for accept- 
 ance or refusal in due time, and as soon as convenient. If the drawee 
 refuse to accept, the holder has a right to call on the drawer for the 
 amount of the bill and damages, without waiting for the time to elapse 
 when it becomes payable. The liability of the drawer, and the amount 
 of damages to which he will be liable upon non-acceptance or non-pay- 
 ment, will depend upon the laws of the country where the bill was 
 drawn. But the bill itself, as a contract, will be considered according 
 to the law of the country where the parties intended it should be per- 
 formed or paid. 
 
 § 17. Where a bill is payable a number of days after sight, present- 
 ment for acceptance is absolutely necessary, for tiie time of payment is 
 fixed by that; and such presentment should be made in a reasonable time. 
 The same rule holds as to bills of exchange payable on demand, and 
 . the holder should either present it for acceptance, or negotiate it with- 
 out delay; for if it is not presented in reasonable time (and that time 
 is lengthened while it is in the course of negotiation), and the drawee 
 in the mean time becomes insolvent, the loss will fall on the holder.' 
 
 § 18. Upon presentation, the drawee is entitled to reasonable time to 
 determine what he shall do ; and usually, in case he accepts the draft 
 upon him, indorses "accepted," and signs it, or in some manner show- 
 ing an intention to do so, and then he is bound to pay it at maturity as 
 though it was a promissory note ; and in the same manner, at the expi- 
 ration of the days of grace, demand of payment should be made, and if 
 not paid, it should be protested, and notice thereof should be given to 
 the drawer and previous indorser, in order to hold them for the pay- 
 
 I As to the time when a contract becomes due and payable, see ante, chap. ix. 
 g 28-38. See McMurchey vs. Robinson, 10 O. K. 496, where a bill dated March 
 20th, payable in four months. The time would be calendar months, and the time 
 would expire July 20th, and the days of grace would make it fall due on the 
 23d day of July. 
 
304 PRIVATE LAW. Tbook n. 
 
 ment. The acceptance may be general, or it may be special,— as to 
 place or circumstances of payment, — but the holder is not bound to re- 
 ceive such special acceptance, but may treat it as dishonored or he may 
 receive it, and immediately give notice to the drawer and indorsers, 
 to whom he looks for ultimate payment, of the manner in which it is 
 accepted. 
 
 § 19. When the bill is drawn payable at a certain time (and not at 
 sight or on demand), the presentation for acceptance may be delayed, 
 and made with the demand of payment ;' and though this delay is not ad- 
 visable, yet the holder loses nothing, except the delay in going back on the 
 drawer or indorser, in case it is eventually dishonored. It is usual for 
 holders of bills, upon either acceptance or payment being refused, to have 
 the bill protested; but as to domestic bills, that is not essential, so that 
 the proper notice be given ; but as to foreign bills, the protest is essen- 
 tial, and it is equally so as to a bill drawn upon any person without this 
 State, in order to recover the statutory damages. When such protest is 
 duly made, and proper notice of the dishonor having been also given, 
 the holder is thereby entitled to recover the amount of the bill, damages 
 allowed, with interest and expense, occasioned by returning it to where 
 it was drawn. The protest in this case, as well as in relation to all 
 negotiable pg.per, must be made in writing, with a copy of the bill or 
 other negotiable paper, by some notary public; or in case there be no 
 notary resident in the place, then by any other substantial citizen in the 
 presence of two credible witnesses. 
 
 § 20. A bill, where acceptance is refused, is sometimes accepted supra 
 protest, for honor of the drawer or indorser, by some friend who inter- 
 venes to save the bill from being sent back upon him as unpaid, by sub- 
 stituting his own name upon it as acceptor, after the protest of its having 
 been dishonored by the drawee. This will amount to an engagement to 
 pay, only in the event of its being presented for payment to the drawee, 
 when it arrives at maturity, and of its being again dishonored by him, 
 and protested for non-payment, and of its being afterward presented to 
 him — the acceptor for honor — for payment'. Upon these conditions only 
 is such acceptor liable, as though he had accepted in the capacity of 
 drawee, so far as any one whose claim is subsequent to him for whose 
 honor the acceptance was made ; and in case of being obliged to pay, 
 he has a right of recourse against the person for whose honor he had 
 accepted it, and against any party antecedent to him in the order of 
 responsibility.^ 
 
 § 21. Where the bill has been dishonored, the notice to the drawer and 
 
 1 This is so stated by Mr. Stephens, see 2 Stephens's Com. 167 : but such delay 
 is unadvisable. See ante, J 16-17 
 » 2 Stephens's Com 167. 
 
CHAP. XII.] NEGOTIABLE PAPER, ETC. 305 
 
 indorser is required to enable them to look after their interest and se- 
 cure it if they can. If the notice is not given, they are released, unless 
 the demand and notice have been in some manner waived. What the 
 law requires is reasonable diligence in the time, manner, and place of 
 giving the notice ; and when the facts are ascertained, the sufficiency of 
 the notice is partly a question of law for the court to settle. But there 
 are certain rules as to the diligence required in giving notice settled by 
 the practice and decisions of courts ; and these are the same, as regards 
 both bills ,and promissory notes, as to indorsers. Where the parties re- 
 side in the same place the notice should be sent by special messenger, 
 or penny post, if there be one ; but where they reside in different places, 
 the notice may be sent the same day by the post-office, or at least as 
 early as reasonable hours should require for the mail the next day, 
 directed to the proper person at his usual residence or place of business. 
 This notice may be severally to every person responsible on the paper; 
 but the holder is not bound to give notice of the dishonor to any more 
 than his immediate indorser. And each party to the bill has the same 
 time for giving notice to parties prior to him, that the holder had him- 
 self.^ An agent for collection who has the paper in his possession, may 
 be considered as a holder, and should, as holder, give notice to his prin- 
 cipal, who should, in the same manner as an indorser himself, give notice 
 to those on the paper whom he wishes to hold responsible for its ulti- 
 mate payment. 
 
 § 22. There are several other classes of written contracts that are, 
 in common usage, negotiable, to which all the doctrines of negotiable 
 paper are not applicable, as bank checks, bank notes, government bonds, 
 and the like. To these, usually, days of grace do not apply ;^ and when, 
 on account of non-payment, the holder intends to have recourse to 
 those from whom it was received, due diligence should be used in giv- 
 ing notice of such non-paj''ment and intention. Bank bills pass from 
 one person to another as money, though no one is bound to receive 
 them unless he chooses to do so, except they are made legal tender by 
 the sanction of a general act of Congress. A contract to pay a certain 
 sum in current bank notes is a contract to pay so much money.' By 
 universal consent they pass as money ; and in the course of business 
 they are charged and credited as cash. They pass by will in a bequest 
 of all money, and are never considered as securities for money, but as 
 money itself. When received in payment of a debt or otherwise for a 
 consideration, after the bank has stopped payment, when its failure was 
 not known by either party at the time, the loss must fall on the parly 
 
 > Lawson vs. Farmers' B. 1 0. S. E. 206 ; Townsend vs. Lorain B. 2 0. S. E. 
 345. See also 6 O. S. E. 168 ; 14 O. S. E. 96. 
 2 Andrew vs. Blachly, 11 0. S. E. 89. ' Edward vs. Morris, 1 0. E. 189. 
 
 * 20 
 
806 PRIVATE LAW. Tbook ii. 
 
 paying the bills, unless there be some special arrangement to the con- 
 trary, or the party receiving them has been gui ty of laches in not giv- 
 ing notice and returning them in due time.' This loss is so placed upon 
 the principle that a person shall not be compelled to part with something 
 for that which turns out to be nothing or worthless, contrary to the inten- 
 tion of the parties at the time. If the payor were aware of the failure 
 and the payee not, then the payor would be responsible upon the prin- 
 ciple that, in passing them as solvent money, he was both suggesting a 
 falsehood, and suppressing the truth. 
 
 § 23. There are a number of contracts, contemplating the payment 
 of money, upon some condition or another, not yet treated of, in the 
 course of the means of acquiring title to personal property, which will 
 require notice, and it is the purpose now to take them numerically 
 and alphabetically. They are— I. Annuities; II. Assignments; III. 
 Guaranties; IV. Insurances; V. Mortgages and securities; and this 
 will conclude the observations on the "title to personal property by 
 contracts." 
 
 § 24. I. Annuity is a certain sum of money to be paid annually to 
 the annuitant, chargeable only upon the person and personal estate of 
 the grantor, and may be granted for life, or for years, or in fee.^ When 
 the annual payment is chargeable upon and issues directly out of land, 
 it is rent rather than annuity; and the close resemblance and analogy 
 between them have caused them frequently to be confounded, though 
 the distinction between the terms rent and annuity appears now to be 
 well settled. The obligation of the grantor to pay the annuity, and the 
 means of enforcing it, are the same as that of any other debt. It is 
 true that the payment, like that of any other debt, may be secured by a 
 mortgage or other pledge, without its changing its character or its be- 
 coming a rent. The annuity may be made payable to the annuitant 
 for life or for years, and after that to another, like a remainder, as to 
 a wife, a child, or another, or to him and his heirs, and it is then said 
 to be annuity in fee. This fact, and the similarity between them, to- 
 gether with the original Latin phraseology, in both cases annua reditus, 
 have caused annuity and rent to be confounded, though the difference is 
 suflBciently obvious. 
 
 § 25. Although the annuity does not belong to the class of things 
 real, yet a man may have an estate of inheritance in it, as it may be 
 made payable and descendible to his heirs, and it is then sometimes 
 called a personal fee, and is a personal estate in fee, sub modo.' This 
 is a singular instance of what is strictly personal property going to 
 
 1 Westfall vs. Braley, 10 0. S. R. 188. 
 
 2 2 Blackst. Com. 40; 3 Kent's Com. 406; 2 Stephens's Com. 26-144. 
 » 2 Stephens's Com. 26 ; Co Litt. 2, a. 
 
CHAP xii.J NEGOTIABLE PAPER, ETC 307 
 
 the heir instead of the executor or administrator ; but of course it must 
 be subject to the settlement of the estate and payment of the debts of the 
 first annuitant, and the heir must receive it subject to the payment of 
 the debts in case they cannot be otherwise paid. But its going to the 
 heir must be by fofce of the express words of the grant; and if that be 
 so, why not other choses in action of incorporeal nature go to the heir 
 in the same manner ? ' 
 
 § 26. In some countries, where the principal is subject to forfeiture 
 on account of its including usurious interest, annuities have been used 
 as a pretense to cover usury, and as the best mode to lend to irre- 
 sponsible debtors. Thus, a loan is made, and the debtor agrees to 
 pay during his own life an annuity for the number of years agreed 
 upon, into which the loan is divided up, and the interest is added, 
 and also an additional compensation for the extraordinary hazard run 
 of losing that principal entirely by the contingency of the borrower's 
 death, — all of which considerations being added together, would consti- 
 tute the amount of the annuity granted.^ It is said that the hazard run 
 will avoid the illegal usury, though there be taken at the same time a life 
 insurance on the life of the debtor. If such annuity be taken in good 
 faith, there might be some reason in calling it good, but if done viala 
 fide to cover up illegal interest, it would be strange if the court would 
 not be able to unravel it, and discover it in its true character. 
 
 § 27. II. Assignments means any transfer of right or property, real 
 or personal, either in possession or in action, from one person to another. 
 Although it is variously used, and frequently where a more appropriate 
 term might be used, to designate the transfer, yet it may be said that 
 it is more appropriately used in the following instances, and more au- 
 thoritatively in this order : 1. The sale and transfer of any written instru- 
 ment or any other chose in action. Although such sale or transaction 
 might be accomplished orally, yet it is usual, and the better way, to have 
 the transfer made in writing ; and whenever the chose in action is a 
 written instrument, it is usual, if not required, to have the transfer 
 indorsed on the instrument. All such sales and transfers are most 
 appropriately called assignments ; the person who so assigns, the 
 assignor, and the person to whom it is transferred, the assignee. 2. 
 When a person for some certain purpose transfers to another a parcel 
 of his property; and although such transaction might properly be 
 termed a sale, it is more appropriately called an assignment, — as 
 where a person assigns his whole store of goods to another to be 
 appropriated to some public enterprise ; or where a person in fail- 
 ing circumstances transfers some portion or all his property, real or per- 
 
 • See ante, Special Occupant, ch. xi. 
 » 2 Stephens's Com. 144. 
 
808 PBTVATE LAW. [book n, 
 
 sonal, or both, to some person, in trust, to apply the proceeds of the 
 same, pro rata, to the payment of his creditors. ; and though this trans- 
 action might be called a sale of property, yet it is most appropriately 
 called an assignment. If such assignment contains the transfer of any 
 title to real property, it should be executed precisely in the manner of 
 a deed of conveyance ; • and such assignments usually contain the words 
 sell, convey, transfer, and assign the specified property, and state the 
 object. 3. Any sale or conveyance might be termed an assignment, 
 but in ordinary transactions the former terms are more appropriate. 
 4. Where a lessee again leases the property to another for a shorter 
 term than his own, the transaction is usually called a sub-lease or under- 
 lease ; but where he transfers his whole interest in the leased property, 
 it is called an assignment of his lease. 
 
 § 28. Any species of property that may be sold and transferred may be 
 the subject of an assignment. Any vested interest may be even a vested 
 contingent interest, though a remote contingency cannot ; nor can a 
 chose in action, which is a mere claim to damages for a personal injury, 
 that does not survive to his personal representative. The assignment 
 of choses in action of other sort of claims than those just mentioned, is 
 a very common transaction, and one that is protected and enforced both 
 at law and in equity. 
 
 § 29. In cases of assignments for the benefit of creditors, the statutes 
 of Ohio provide that the assignee shall file in the probate court a copy 
 of the assignment, give bonds, and proceed to settle up the assignment 
 very much in the same manner as executors and administrators are re- 
 quired to do. The law provides that assignments, made by any debtor 
 in failing circumstances and in contemplation of insolvency, to trustees 
 for the benefit of creditors, shall inure to the benefit of all his creditors. 
 Any restriction or condition in any sale or assignment, for the benefit 
 of the debtor, for the purpose of hindering or delaying creditors, is 
 fraudulent and void. But this does not prevent a sale or mortgage in 
 good faith and absolute in its character, and not in trust to pay other 
 creditors, either to pay or secure a creditor. When, however, the con- 
 veyance is fraudulent, it is subject to be treated and administered upon 
 as in cases of assignments, and to the supervision of the probate court.' 
 
 §30. The statute of frauds and perjury provides that all deeds of 
 gifts and conveyances of goods and chattels, made in trust for the use 
 of the person making the same, shall be void. And every gift, grant, or 
 conveyance of lands, tenements, rents, goods, or chattels, and every 
 bond, judgment, or execution made or obtained with intent to defraud 
 creditors, or to defraud or deceive persons who shall purchase such prop- 
 
 iSee the Acts of April 6, 1859, also March 16th, 1860, and also February 
 12th, 1863. 
 
CHAP. XII.] NEGOTIABLE PAPER, ETC 309 
 
 erty, shall be deemed utterly void.' Although fraudulent conveyances 
 are thus declared void, yet such conveyances pass the title to the 
 grantee, subject to the claims of creditors or bona fide purchasers. The 
 conveyance is absolute between the parties to it, and cannot be ques- 
 tioned by them, or strangers, without claims ; nor will a court relieve a 
 fraudulent grantor from the consequence of his conveyance, or those 
 claiming under him. So far as the parties are concerned, the court will 
 leave them and their property where they have placed themselves, and 
 only relieve in favor of bona fide creditors and innocent purchasers.^ 
 
 §31. Although by the laws of this State the delivery of possession 
 is in no wise required in the transfer of personal property by sale, yet 
 where the vendor remains in the possession and use of the property, it 
 is so manifestly inconsistent with a bona fide sale, that it has always been 
 deemed as one of the principal badges of fraud. Where the possession, 
 therefore, is so retained, it is considered prima facie evidence of fraud, 
 entitling the creditors to impeach the transaction ; but if shown to be 
 consistent with the honest and apparent object of the transaction, that 
 the possession for the present should remain with the vendor for an 
 honest intention, and not that of delaying and hindering creditors, the 
 sale will be sustained in law.' 
 
 § 32. III. Guaranty is a promise by one person in behalf of another 
 to pay or perform the obligation in case the original promisor does not. 
 Like all other promises, it must be founded upon a suiScient considera- 
 tion, or it is void. The guarantor is bound by his contract, even if the 
 original contract should be void or voidable, as where the purchase or 
 contract of a minor or a married woman is guarantied. Though such 
 undertakings are generally made under the expectation that the princi- 
 pal debtor and primary party will pay or discharge the obligation ; 
 but the guarantor takes that risk upon himself at his own hazard. The 
 position of a guarantor, an indorser, and that of a surety, is often con- 
 founded. They may all be considered as sureties, for they are all in a 
 different manner bound for the debt or miscarriage of another, and are 
 discharged from their liability by anything or circumstance that on 
 principle will discharge a surety. Usually a surety becomes bound for 
 another as a joint maker of a note, or a joint obligor in a bond, and is 
 liable in the same action and in the same manner as the principal. An 
 indorser is only liable upon due demand and notice ; but a guarantor be- 
 comes bound by a separate and different act from the original debtor, 
 though not, like an indorser, entitled to demand and notice. 
 
 1 See the Act of Feb. 19th, 1810. 
 
 2 Burgett vs. Biirgett, 1 0. E. 469; Brice vs. Myers, 5 0. E. 121 ; Wilcox vs. 
 Kellogg, 1 O. E. 394 ; Conrad vs. Pancoast, 11 0. S. E. 685 ; Hyde vs. Olds, 12 
 O. S. K. 591. 
 
 3Barr vs. Hatch, 3 O. E. 527. 
 
310 PRIVATE LAW. [book ii. 
 
 § 33. The contract of guaranty must be in writing, or it will be void, 
 under the statute of frauds and perjury, for it is a promise for the debt 
 or miscarriage of another. The obligation may be incurred in various 
 ways. As where a person was about to borrow money of another, 
 upon his own note, upon condition of obtaining some one to guaranty 
 the payment of it, an indorsement was not acceptable on the account of 
 the necessity of due demand and notice. C agrees to become a guaran- 
 tor for the borrower, and for that purpose writes his name at the foot 
 of it, or indorses it on the back. may write and fill up his guaranty, 
 which is the better and safest way, or be may leave it in blank, which 
 authorizes the holder of it to fill up the blank in any terms consistent 
 with the original guaranty or agreement. If, in such guaranty, in fill- 
 ing it up, any terms be added inconsistent with the original agreement, 
 the court will rectify it, and order the improper matter to be stricken out. 
 But a blank indorsement on a promissory note, if negotiable, might be so 
 arranged as to appear as an indorser instead of a guarantor ; and this, in 
 the absence of evidence of due demand and notice and of the terms of 
 the indorsement and guaranty, might throw difficulty in the case. 
 Where the guarantor writes the guaranty in full, he may, and should, 
 add to it any condition that may be agreed upon, as that be guarantied 
 the payment by due course of law ; when he would be only liable accord- 
 ing to the express terms of the guaranty. 
 
 § 34. The guaranty is frequently given by means of a letter of credit, 
 guarantying the payment of a loan or sale on credit to the bearer. Such 
 letter of credit, unless it be a general letter to any person, would only 
 be available in the hands of him to whom it was directed ;' for no one 
 has a right to make another, and especially a surety, his debtor, except 
 by the strict terms of his agreement. Where the guaranty is made in 
 the course of procuring the original credit, and for that purpose, the 
 credit becomes the consideration not only for the original promise, but 
 also for that of the guaranty." But when the guaranty is procured at a 
 subsequent time, there must be a new consideration for it, or it would 
 be void for the want of a consideration. But that would be accom- 
 plished by a new extension of credit, or any other matter that vrould 
 form a consideration in any other contract. 
 
 § 85. Ordinarily, a guaranty does not require a demand and notice to 
 be given by the guarantee, for the guarantor takes upon himself to see 
 that the original promise is fulfilled.' But notice of the acceptance of the 
 guaranty, or non-payment by the original promisor, may be necessary, 
 wherever the terms of the guarant}^ either expressly or impliedly, seem 
 
 iParker vs. Riddle, H 0. R. 102. 
 
 » Leonard vs. Sweetsor, 16 O. E. 1 ; 12 Ibid. 158; 18 Ibid. 336. 
 
 8 Reed vs. Evans, 17 0. E. 128; Bashford vs. Shaw, 4 0. S. R. 263. 
 
CHAP. XII.] NEGOTIABLE PAPER, ETC. 311 
 
 to reqaire it. Such demand and notice are requisite only where the 
 fact on which the liability is made dependent rests particularly within 
 the knowledge of the guarantee, or depends on his option, or is required 
 by the terms of the guaranty. For where each party has, in legal con- 
 templation, equal means of information, the guarantor must take notice 
 at his peril. 
 
 §36. Where notice is necessary, and the guarantor liable to be dis- 
 charged for the want of it, there must be not only a want of the notice 
 within a reasonable time, but there must be also some actual loss or 
 damage thereby caused to the guarantor. And if such loss or damage 
 does not go to the whole amount of the claim, the guarantor is not wholly 
 discharged, but only pro tanio. If the principal debtor be solvent when 
 the debt fell due, and afterward became insolvent, and the debt thereby 
 became wholly lost by want of a reasonable notice or due prosecution, the 
 guarantor should be discharged. But if the principal debtor has all the 
 time been insolvent, so that the guarantor has lost nothing by reason of 
 want of notice, he is not discharged on the account that the notice has 
 been neglected. Where the guaranty is the payment of a note " after 
 final process," or that is collectable by law, or on any similar event, the 
 guarantor is only liable after a failure to collect upon a due proceeding 
 at law ; but if entitled to notice at all, is only when the default occurs 
 upon which his liability depends — the final failure to collect upon pro- 
 cess, unless the terms of the guaranty provide otherwise ; and he can 
 claim a discharge only to the extent of his loss or damages, on the ac- 
 count of the want of due prosecution or notice.' But the guarantor, like 
 all other sureties, is only bound by the strict measure of his contract; if, 
 therefore, the creditor do anything to render the guarantor's situation 
 worse than it might be, as upon a valid contract, he gives an extension 
 of time to the debtor, without the actual consent of the guarantor; or 
 neglects or refuses to receive the payment of the debt from the principal 
 debtor, when it was potentially within the power of the creditor to do 
 so, the guarantor is discharged. 
 
 § 37. IV. Insurance is a contract by which the insurer, in considera- 
 tion of a certain stipulated premium, agrees to indemnify the insured 
 against certain risks, in money or money's worth. It is invariably made 
 bymeansof a written instrument, as the parties may agree, called upolici/ 
 of insurance. The effect of it is, that the parties by means of the policy 
 and premium divide the risks between them — the insured, that he has paid 
 the premium and no risk or accident has occurred; and the insurer, the 
 risk of the accident and the payment of the indemnity. When the in- 
 surance has been made upon fair principles and with responsible insurers, 
 the contract is mutually beneficial to both parties, and frequently great 
 
 1 Porest vs. Stewart, U O. S. R. 246. 
 
312 PBIVATE LAW. [book ii. 
 
 relief to the unfortunate, but subject to great abuse. In case of loss in 
 any of the risks enumerated in the policy, the insurer is bound to place 
 the insured, as nearly as possible, in the situation be was before it 
 happened, to the extent of the amount insured in money or otherwise. 
 It is an established principle in regard to this class of contracts, that 
 they should only be a contract of indemnity upon fair and honest prin- 
 ciples, and should not be used as a cover for any kind of gambling trans- 
 action. 
 
 § 38. The policy usually contains, besides the parties as the insurer or 
 insured, the particulars of the whole contract between them — the speci- 
 fication of the property or other matter to be insured — a statement of 
 all risks to be run — the time when the risk begins and ends — the pre- 
 mium or rate of insurance, and other matter in relation to the interest 
 of either party that may be agreed upon. The policy may be made 
 with the valuation set upon the property insured, which, in case of a total 
 loss, is to be received as its true value, without the necessity of any 
 proof in relation to it. It is then called a calued policy. Or it may be 
 made without any value set upon it. It is then called an open 
 policy ; and in that case it will be necessary to establish by proof the 
 value for which the indemnity was intended. 
 
 § 39. Insurance may be effected upon any kind of risks and upon 
 any sort of property subject to loss by casualty ; as insurance upon 
 houses ; upon goods and merchandise ; upon ships and freight ; and 
 upon lives. The policy taken in any of these classes of cases may be 
 confined to some particular peril or risks as may be agreed upon, and 
 peculiar to the class of interest insured; thus it may be against fire; 
 the perils of the sea ; the dangers of the voyage or transportation ; or 
 it may be upon the very existence of the thing, or the life of the person 
 or animal, without reference to any particular peril. At present we 
 find insurances upon all kind of interest and upon all varieties of risks 
 and perils combined, or classified to suit business and the vocations of 
 life. They may all be classified and divided into — 1, insurance against 
 fire ; 2, marine insurance ; and 3, life insurance. 
 
 § 40. (1) Fire policies engage, in consideration of a single or periodical 
 payment of premium, to pay the assured such loss as may occur by fire 
 to the property insured (either house or goods or both) within the 
 period specified, to an amount not exceeding the sum fixed for that 
 purpose by the policy, as the parties have agreed. Such policies usually 
 contain a particular description of the property and its circumstances, 
 and frequently it is accompanied by what is called a survey, describing 
 the property and its surroundings. The policy usually contains pro- 
 visions against particular exposures and alterations, which may in- 
 crease the risks. In all this the law requires good faith and honest 
 dealing. Any violation of the express provisions of the policy will 
 
CHAP, xii.] NEGOTIABLE PAPER, ETC. 313 
 
 avoid it. And so will the suppression of a material fact in the descrip- 
 tion or survey, or alterations that increase the risk ; but usual altera- 
 tions which do not materially increase the risk, unless expressly pro- 
 vided against, do not so afifect the insurance. But if a new invention 
 or improvement, not in common use, be introduced, materially increasing 
 the risk, wilhout the consent of the underwriter, it may render the 
 policy inoperative.^ If the insured had no interest in the property at 
 the time of entering into the policy, or afterward alienates his interest, 
 it renders the policy void, or operates to avoid it from the time of the 
 alienation.^ 
 
 § 41. (2) Marine insurances are such as belong to shipping and mari- 
 time matters, and usually include insurance upon ship or goods, or both ; 
 and frequently upon the freight which the vessel is about to earn, or 
 profits expected from the cargo. In ordinary policies of this kind the 
 risks usually insured againsD are stated a.a perils of the seas, which in- 
 clude all the dangers incident to navigation ; capture by public enemy, 
 or by pirates or thieves ; Jire ; jettisons, or the voluntary throwing 
 overboard in times of distress ; arrests or embargo by public authorities ; 
 and barratry, or fraudulent conduct of the master or mariners. Insur- 
 ances against any or all these risks are taken by the underwriters, in 
 consideration of a premium paid, as to the particular voyage specified in 
 the policy. The policy will remain good, though at the time the vessel 
 was either lost or safe in port, in case the fact at the time was unknown 
 to both parties. But the exact voyage specified in the policy must be 
 pursued, for any deviation from it, except under circumstances of neces- 
 sity, will avoid the insurance. In every such policy there is an implied 
 warranty that the ship, at the time of her setting sail, shall be sea- 
 worthy; and in case she was in a condition unfit to perform the voyage, 
 the insurance cannot be recovered, in the event of a loss, whether it 
 proceeded from the defect or from other causes. 
 
 §42. Whenever there is a loss, the insured is entitled to recover 
 upon his policy ; not only where there is a direct proof of the loss, but 
 where the vessel has been so long unheard of as to raise a presumption 
 that she is foundered. Where there is a direct evidence of the loss, the 
 question arises whether such loss is total or partial. Numerous other 
 questions may arise in cases of this kind: such as where the loss was 
 not an absolute total loss, whether the insured had right under the 
 circumstances to relinquish the voyage, or to abandon the wreck or 
 goods. Also questions of salvage, and of average of the amount prop- 
 erly paid for salvage among the owners of the ship and cargo, being a 
 mode of contribution according to commercial usages. Where there 
 
 ' Washington In. Co. vs. Merchants and M. Co. 5 O. S. E. 450. 
 2 Mt. Vernon Co. vs. Summit Ins. Co. 10 O. S. R. 347. 
 
314 PRIVATE LAW. [book ii. 
 
 has been a total loss, the underwriter is liable to pay the whole amount 
 of his subscription ; but where it is only partial, then only such propor- 
 tion of the amount subscribed as the damages sustained bear to the 
 whole value of the subject insured at the time of the insurance. These 
 subjects form a code of interesting commercial law which cannot be 
 further pursued here. 
 
 § 43. (3) Life insurance is where the underwriter agrees that if the 
 person whose life is insured dies within a certain time, he will pay to the 
 person in whose favor the insurance is made, a certain sum of money. 
 The person in whose favor the insurance is made must have some in- 
 terest in the life insured, or the policy, like all other policies without an 
 interest, would be a mere wager, and therefore void. But any interest 
 will be able to protect it, such as a near relation, or having a pecuniary 
 interest in him, as being a debtor to him. The death of the person 
 whose life is insured is generally a well-known fact and circumstance. 
 But where such person has gone to sea, and is never afterward heard 
 from, it becomes a question of fact, to be determined by presumption 
 arising from the circumstances, whether he died before or after the 
 policy expired. 
 
 § 44. Where there is no warranty, the insurer runs the risk of its being 
 a good life ; there is no implied assurance as to his condition, but there 
 must not-be any concealment ; and when a statement is made, there must 
 be no omissioli of circumstances which naturally abridge life ; for the ab- 
 sence of such honesty and frankness would be considered as a fraud, 
 and would render the policy void. But where even there is a warranty 
 expressed that the person is in good health, it does not mean that the 
 person is free from the seeds of disease, nor that he has no infirmity, if 
 it has no necessary tendency to shorten life. 
 
 §45. There are a number of principles of the law of insurance equally 
 applicable to the various classes of policies, as that the insured should 
 have an interest in the subject-matter insured, so that it shall not be- 
 come a mere matter of gambling or speculation. These contracts, like 
 all others, must be founded upon a proper consideration and mutuality. 
 They usually contain all the particulars of the contract ; but frequently 
 the several classes of policies are governed by rules and customs pecu- 
 liar to its own, and so as to matters of necessary implication and con- 
 struction. If the policy has been made out contrary to the understand- 
 ing of either party, with a fraudulent intention, it will be void, at the 
 option of the person whom it was intended to defraud ; but the party 
 attempting the fraud may be held to the contract as written, for other- 
 wise it would be in the power of the person who perpetrated the fraud 
 to take advantage of his own wrong. 
 
 § 46. These contracts require, as all contracts do, honesty and fair 
 dealing ; but in making statement or disclosures by the insured, if a 
 
CHAP. XII.] NEGOTIABLE PAPER, ETC. 315 
 
 material fact is left out as a casualty and not as an intended fraud, nor 
 increasing the risk in the casualty that has happened, it will not viti- 
 ate the policy.* When all the terms of the contract have been agreed 
 upon with the agent of the underwriter, and a casualty happens within 
 the terms of the policy, the insurer is bound, though it happens before 
 the principal has received and accepted the papers.* Where the policy, 
 by mistake or accident, is reduced to writing, contrary to the intention 
 of the parties, a court of equity will reform or modify it accordingly, 
 and compel a specific performance, as in like cases in other contracts.' 
 
 § 47. A person may have the same property insured by more than 
 one underwriter, — that is what is called double insurance, — but in case 
 of a casualty he can recover but one indemnity, and the insurers may 
 have a contribution with each other, so as to equalize the loss between 
 them. Although the law does not encourage insurance beyond the 
 interest of the insured in the property, yet every one who has an inter- 
 est in it may insure, as both the mortgagor and the mortgagee may 
 insure ; and the mortgagee cannot claim the benefit of the insurance pro- 
 cured by the mortgagor. Each has an insurable interest, and neither, as 
 a general rule, can take advantage of an insurance effected by the other.* 
 
 § 48. A return of the premium is sometimes had under certain rules 
 attached to some classes of insurance. The general rule is, that where 
 there has been no risk the premium should be returned, as where a ship 
 has returned safely in port before the policy was executed ; or where 
 there is an open policy and a larger premium paid than the value of the 
 goods, when ascertained, required, the surplus premium must, be re- 
 turned. But when the risk once attaches, there is no claim for any part 
 of the premium. As where the parties, by their own estimated value 
 of the goods, paid a premium accordingly, it was held that they were 
 bound by it, unless there was a fraud or mistake, and if the risk once 
 attaches, and commenced running, there can be no apportionment or 
 return of the premium.^ 
 
 § 49. V. Mortgage of personal property or chattel mortgage (as fre- 
 quently called) is now, in its execution and validity, much regulated 
 by statute ; which requires that all mortgages of personal property' shall 
 forthwith be filed with the clerk of the township, and within thirty days 
 next preceding the expiration of a year from its execution it shall be 
 refiled, with a statement of the amount due and claimed, or such mort- 
 
 1 Lexington Co. vs. Paver, 16 0. R. 324. 
 
 2 Palm vs. Medina Co. 20 0. K. 529. 
 
 3 Flint vs. Ohio Ins. Co. 8 0. R. 501 ; Harris vs. Columbiana Co. 18 0. E. 116. 
 * McDonald vs. Black, 20 0. K. 185. 
 
 6 Fulton vs. Lancaster Co. 7 0. E. pt. 2d, 284. 
 
 « Wilson vs. Leslie, 20 0. K. 161 ; Brown vs. Webb, Ibid. 389 ; 10 0. S. E. 372j 
 5 Curd vs. Wunder, 5 0. S. E. 92; 16 E. 547 ; 7 0. S. E. 218. 
 
316 PRIVATE LAW. [book ii. 
 
 gage shall be void as to creditors and subsequent purchasers in good 
 faith, when the possession of the mortgaged property is left with such 
 mortgagor. This statute does not operate upon mortgage of personal 
 property where the delivery and possession has been taken and held by 
 the mortgagee. The object of the law was, that where the possession of 
 the mortgaged property was retained by the mortgagor, there should be 
 a public declaration and evidence of the existence of the mortgage, so that 
 creditors and subsequent purchasers should be relieved from the effect 
 of secret mortgage while the possession was in the hands of the mort- 
 gagor. The doctrine, that the vendor by the sale conveyed no greater 
 right than he himself possessed, and, caveat emptor, made an unknown 
 mortgage with the possessioQ in the hands of the mortgagor a danger- 
 ous thing to purchasers and creditors, which this law intended to 
 obviate. 
 
 § 50. Under this statute the courts have held that the mortgage is 
 void as to execution creditors who levy upon the property before the 
 mortgage is filed with the clerk, but the mortgage is valid against a 
 person taking a subsequent mortgage, with actual notice of an unsatis- 
 fied prior mortgage not duly filed ; for such subsequent mortgagee, with 
 actual notice, is not, within the words of the statute, a bona fide mort- 
 gagee, though constructive notice will not have this effect, for such notice 
 merely does not create him a mortgagee mala fide. The neglect to file 
 or refile the mortgage does not render it absolutely or in toto void, but 
 only so against creditor's levy and subsequent mortgagees and pur- 
 chasers in good faith, and will become effective from the time it is filed. 
 Such mortgages, though duly executed and filed, are still subject, as in 
 cases of sale of personal property, to be considered void as to creditors 
 on the account of fraud between the mortgagor and mortgagee, and sub- 
 ject to the same badges as evidence of the fraud ; and where the mort- 
 gagor retained possession, with power to sell, though accompanied with 
 a provision that the sale should be accounted for, and go in liquidation 
 of the mortgagedebt, still the power to sell was so inconsistent with the 
 object of a mortgage and the safety of others, it was held that it ren- 
 dered the mortgage void as against subsequent purchasers and execution 
 creditors. 
 
 §51. Where the mortgage contains an express stipulation that the 
 mortgagor should retain possession of the mortgaged property until the 
 debt it was intended to secure should become due, it gave to the mort- 
 gagor a beneficial interest, that could not be in the mean time interfered 
 with by the mortgagee, and such an interest that it might be taken by 
 an execution creditor, subject to the ultimate claim of the mortgagee. 
 Such a right given to the mortgagor greatly endangers the security of the 
 mortgagee, and disables him, at law, to reclaim the property during the 
 time, or to bring replevin or trover for it ; — until the time expired, the 
 
CHAP, xii.] NEGOTIABLE PAPEB, ETC. 317 
 
 only remedy would be in equity, for his ultimate interest. Ordinarily, 
 the mortgagee has a right to take possession of the mortgaged prop- 
 erty whenever he deems best; but if there be a provision in it that 
 the mortgagor might retain possession until the mortgage debt should 
 become due and payable, then it should contain a further provision 
 that the mortgagee might, at any time he should consider his debt 
 on the mortgaged property unsafe, be at liberty to take possession of 
 the property, and hold the same, subject to and for the purpose of 
 satisfying the debt, notwithstanding any provision in the mortgage to 
 the contrary. 
 
 § 52. These mortgages frequently create conflicting claims, as where 
 there are three mortgagees of the same property, of whom the first has 
 lost his lien as against the third, by failure to refile within the year ; and 
 the second had taken his lien with actual notice of the first, and has pre- 
 served his priority of lien over the third, and the proceeds of the mort- 
 gaged property is insufficient to satisfy all the liens, distribution will be 
 made in the following manner ■} To the third mortgagee what would be 
 applicable to his mortgage, after satisfying the prior lien of the second. 
 To the second, so much of the whole fund as would be applicable to his 
 debt, after satisfying the prior lien of the first, and without reference to 
 the third. And to the first mortgagee, the residue. The third mort- 
 gage took precedence of the first, because of his neglect to refile, as the 
 statute made it void by such laches as to subsequent mortgages, etc., in 
 good faith ; and the court holds that actual and not constructive notice — . 
 arising from the filing instance — would prevent the priority of lien for 
 the want of good faith ; and that a mortgage on file would take prece- 
 dence of a prior mortgage, by the neglect to refile within the year — that 
 the statute, by the words subsequent mortgages, etc., in good faith, has 
 reference to the execution of the prior mortgage, and, therefore, it made 
 no difference whether the filing of the second mortgage was before or 
 after the failure to refile before the end of the year. 
 
 § 53. In all the contracts which ultimately require the payment of 
 money, it frequently becomes a material question to consider the rules 
 of law as to time and interest as an incident to the principal. By the 
 laws of Ohio a creditor may contract with his debtor for the payment 
 of interest, at a rate not exceeding six per cent, per annum, and he is 
 entitled to such interest upon all debts and claims after they become due 
 and are unreasonably delayed.' But all contracts for the payment of a 
 higher rate of interest are illegal ; and the payment of such illegal interest 
 may be applied to the payment of the principal, or recovered by virtue 
 
 1 Day vs. Manson, 14 0. S. E. 488. 
 
 2 By a recent statute, parties may contract in their written agreement for eight 
 per cent, interest per annum. 
 
318 PBIVATE LAW. [book ii. 
 
 of a provision of the same law. Previous to this positive law, the courts 
 would not aid one of the parties to such illegal contract, to recover such 
 illegal interest after it was paid or liquidated, unless it constituted 
 a part of tiie contract then to be settled, on the principle that the party 
 was in pari delicto, and therefore the court would not aid him. Our 
 law in relation to interest does not forfeit the principal on the account 
 that illegal interest is included, or agreed to be paid, but makes invalid 
 the agreement to pay illegal interest, and enables the party to recover it 
 when paid. 
 
 § 54. It is a principle of law that interest shall not be compounded, 
 although where payments are made at different times, to do justice to 
 both creditor and debtor, there may be to some extent a compounding 
 of interest ; this consequence should be avoided as much as possible. 
 But where partial payments are made, the rule is to calculate the in- 
 terest up to the time of payment, which goes first to pay the interest, - 
 and the balance deducted from the principal. Where the payment is 
 less than the interest, it must be carried along without compounding 
 until the payment exceed the interest. When payment is made before 
 principal or interest is due, the payment should be so applied as 
 to extinguish its relative proportion of the debt and interest to that 
 time. Thus, if a note be given for one hundred dollars and interest, 
 payable in one year, and at the termination of six months there is a 
 payment of fifty-one dollars and fifty cents, this sum will pay fifty dol- 
 lars of the principal and the interest accumulated on it ; so that at the 
 end of the year there will be due on the note only fifty dollars, principal 
 and interest on that sum for the year.' 
 
 § 55. The courts are astute in unraveling and discovering contrivances 
 to disguise and cover up illegal interest, were it in the same contract 
 then before the court ; but independent of the statute, which enables a 
 party in some instances to recover money illegally extorted by way of 
 interest, the general rule is, that interest once voluntarily pai(i and liqui- 
 dated cannot be recovered, for the reason that the payment is volun- 
 tary, and the parties are in pari delicto. And although courts will 
 not compound the interest as it comes due, yet where the parties have 
 themselves compounded the interest, and paid or liquidated it, the 
 court will let it stand as the parties have agreed upon it. Where the 
 interest is agreed to be paid annually, or at stated times before the prin- 
 cipal becomes due, an action will lie to recover such interest from time 
 to time ; but the court will not compound such interest where the par- 
 ties have neglected to recover such interest themselves. 
 
 1 Miami Ex. Co. vs. Bank U. S. 5 0. R. 260 ; 2 Parsons's Cont. 146. 
 
CHAP. XIII.] RELATIVE CIVIL BIGHTS. 319 
 
 CHAPTER XIII. 
 
 RELATIVE CIVIL RIGHTS. 
 
 § 1. The rights of persons in their private capacity have been divided 
 into absolute and relative. The subject of this book is private rights ; 
 and thus far it has been in relation to the absolute rights of a person, 
 appertaining to his person and property. But man, as a private citizen, 
 is a social being, and as such has, and must have, relation and intercourse 
 with his fellow-beings. This creates a new set of rights, which have 
 been denominated the relative rights of private persons. These rela- 
 tive rights are divided into two classes: 1, those which relate to him 
 in his civil relation with others, as agents, partners, etc.; and 2, those 
 which relate to him in his family connections, and are called his domes- 
 tic relations, which consist of those of husband and wife, parent and 
 child, etc. 
 
 § 2. Man, as a private citizen, must have more or less intercourse 
 with others, and in the transaction of almost any business he must, to 
 some extent, depend upon the agency he confers upon others, whose 
 powers depend upon the authority he bestows upon them. These 
 agencies and powers are regulated and controlled by rules and princi- 
 ples of law, so as to protect the unwary and restrain the dishonest. 
 The first principle of law, applicable to this subject, — and which runs 
 through all powers, authority, and agency, — is that the principal is re- 
 sponsible for whatever authority he legally confers by the agency upon 
 his agent, and is bound by whatever his agent may legitimately do 
 under his authority, — agent being viewed simply as the medium 
 through which it is effected:' qui facit per alium facit per se That 
 the authority extends no further than that which can be reasonably 
 deduced from the authority given f and that the authority may be re- 
 voked at the pleasure of the principal, except vchere it is given accom- 
 panied with an interest in others 
 
 § 3. The questions of agency, power, and authority arise in almost all 
 the various transactions of human life, where more persons are inter- 
 ested in the transaction than the two immediately engaged in it. There 
 are many instances where one person is bound by the acts of another, 
 or a person is authorized to act for another, as warranted by law, that 
 are based upon an assumed agency and authority, not expressed but 
 
 > Broom's Legal Max. 734. » See Caveat emptor, in index. 
 
320 PRIVATE LAW. [book n. 
 
 njerely implied. This is apparent not only in cases of principal and 
 agent, — so usually called, — but it is the same in eases of partnership, 
 of merchants, factors, and salesmen for their principals, transactions of 
 wives and children for their husbands and parents, and transactions of 
 servants and employees in the business of their masters and employers, 
 where the agency and authority may clearly appear ; but in many cases 
 the agency is only assumed from the circumstances of the manner in 
 which the transaction was permitted to be done, — the usual course of 
 business, or necessarily implied, from the express authority given in rela- 
 tion to the matter. 
 
 I. PKINCIPAL AND AGENT. 
 
 § i. The general principles of law in relation to agency, or principal 
 and agent, will be collected in this chapter, and is intimately connected 
 with that of partnership. 
 
 An agent is one who performs any act in the name and by the au- 
 thority of another, — sometimes called an attorney in fact. The manner 
 in which he should receive his authority will depend upon the nature 
 of the act, and the manner it is to be performed. Sometimes the power 
 or authority intended to be conferred and assumed will be void for 
 the want of the formalities required by law ; and sometimes it will 
 serve the purpose to justify the transaction of some business in con- 
 nection with the principal matter when it will not fully authorize the 
 completion of the matter itself. 
 
 § 5. Thus, if it relates to real estate, the authority should be given 
 by a formal power of authority under seal, executed with all the formal- 
 ities required by law for a deed of conveyance. If the owner of a lot 
 of land should, by a simple writing, request his agent to sell his lot for 
 him on certain terms, and the agent should do so, taking a writing from 
 the purchaser in accordance with the request, though the power was 
 intended to authorize a conveyance to be executed by the agent to the 
 purchaser, and so accepted by them, still in law it will not authorize 
 the agent to execute the deed of conveyance, but it will be sufficient to 
 constitute a contract in writing; and should the principal refuse to exe- 
 cute a conveyance in conformity with the contract, a court of equity 
 would decree a specific performance. But if the transaction related to 
 personal property, then a letter from the owner to his agent, or any 
 other writing, or even by parol, the authority would be sufficient to 
 warrant the sale by the agent, and would bind the principal. 
 
 § 6. The cases are numerous, where no express authority can be 
 shown, that the law will imply or presume that the authority existed, 
 either from the previous course of dealing between the parties, or from 
 the subsequent acts or acquiescence of the principal, or from the rela- 
 
CHAP, xiii.l RRLATIVE CIVIL RIGHTS. 321 
 
 tions between the agent and principal.^ When these circumstances 
 exist in the case, and the matter has been transacted in the name and 
 for the benefit of the principal, it would often work a case of gross 
 wrong and injustice, not to presume the authority from the circum- 
 stances, though it cannot be expressly proved. Where such circum- 
 stances have existed, and such principal wishes to prevent such results 
 in the future, the law will require him to use diligence in giving public 
 notice of his dissent and revocation of the authority ; and when there 
 has been a course of dealing, or a partnership, actual personal notice 
 should be given to those with M'^hom such business has been usually 
 transacted, and published in the gazette. In most instances, as to new 
 subsequent cases, such public notice will be sufficient notice of the 
 revocation. 
 
 § 1. Cases frequently occur, where, from the neglect of the agent in 
 disclosing the principal, and that he acted as agent for him, or had ex- 
 ceeded his authority, much difficulty occurred in determining the respec- 
 tive liabilities of the parties. As aid in determining such questions, the 
 following rules have been sanctioned v' 1st, an agent, contracting as 
 principal — not disclosing his position — is liable ; and even if the real 
 principal be known to the vendor at the time, and the agent dealing 
 wholly in his own name, and credit being given to him, the agent only 
 can be sued on the contract ; 2d, if the principal be unknown at the 
 time, whether the agent discloses his being such or not, the vendor may, 
 on discovering the principal, charge either, at his election ; but 3d, if a 
 person acts as agent without authority, he is personally and solely 
 liable ; and if he exceeds his authority, the principal is not bound by acts 
 done beyond the scope of his authority, unless he subsequently ratifies it. 
 
 § 8. It is required of all agents to act in good faith, and where the 
 transaction is for the mutual benefit of both parties, to transact the busi- 
 ness with ordinary diligence, and in the manner that business in which 
 he is employed is usually conducted and transacted. In case of failure 
 in any of these respects, he is liable to his principal for any damages he 
 has sustained by such failure ; and he may also lose thereby all right 
 to recover compensation for his services ; at least they should be reduced 
 to what such services as rendered were worth. 
 
 § 9. An agent may be either general or special ; the former, when a ■ 
 person is employed to act generally in the affairs of another, or, at least, 
 to act for a time generally in some particular capacity ; the latter, where 
 he is authorized to transact for him only in some particular matter." So 
 far as the rights of strangers who deal with him are concerned, a general 
 agent shall be presumed to have authority for what he does, providing 
 
 1 Broom's Max. 737. ' Broom's Max. 739. 
 
 » 2 Stephens's Com. 118. 
 
 21 
 
322 PRIVATE LAW. . [BOOKn. 
 
 it falls within the limits ordinarily belonging to the kind of employment 
 which he exercises, even though in fact he may be violating the directions 
 privately given. But the power of a special agent is strictly bound by 
 the authority he has actually received. A stranger who deals with him 
 ought to strictly inquire into the authority, and ascertain its extent ; and 
 he has no right to consider his acts binding on the employer in case the 
 authority of the agent has been exceeded. But wherever any excess of 
 authority is subsequently ratified by the principal, all parties are bound 
 by it as though the authority originally existed. 
 
 § 10. It is said that the agent's authority should be evidenced by as 
 high authority as the act he is authorized to perforin — if it be to execute 
 a deed, it should be by deed. And in the case of an attorney or agent of 
 a corporation, his power should be evidenced by an authentic act of the 
 corporation, under its seal, as that is the only way that a corporation per- 
 forms its acts ; but in all cases the authority of the agent is presumed where 
 the act in question naturally results from the nature of the employment. 
 
 § 11. An agency, however constituted, determines ipso facto by the 
 death of the principal. It may also, in general, be revoked or counter- 
 manded at any time, during the life of the principal, at his pleasure, so 
 it is done before the act or agency is executed, with as little ceremony 
 as it was created. Before the agency is determined, by either a revo- 
 cation or death of the principal, the agent must have notice of it ; for 
 acts done in good faith before such notice are valid, notwithstanding 
 the actual priority of the revocation or death. But otherwise, after such 
 termination of the power of the agent, his acts are void. 
 
 § 12. Where, however, the agency or power was given coupled with 
 an interest, or given to aid in the accomplishment of another transac- 
 tion, or as auxiliary to it; as where it is given in aid, and for the pur- 
 pose of accomplishing an assignment or transfer of any property or 
 choses in action ; or a trust created where another has an interest, it re- 
 mains like a part of any other contract, unaffected by the revocation or 
 death of the principal. On the other hand, a mere power not connected 
 with an interest, is subject to be revoked,. though in the instrument con- 
 ferring the power it be stipulated to be irrevocable. When the agency 
 is given for the accomplishment of a particular purpose, it terminates 
 ■ and its power is spent when that object is effected. 
 
 § 13. The principal is responsible for the consequences of the acts of 
 his agent done in his employment, and this principle extends to all kind 
 of employees, as servants, laborers, and the like.' He is bound, so far 
 as strangers are concerned, that in the transaction of his business the 
 agents he employs have sufficient skill, and that others do not suffer 
 for the want of it, or by their carelessness or misfeasance ; for the act 
 
 » See Master and Servant, ch. xiv. J 57-62. 
 
CHAP. XIII.] RELATIVE CIVIL RIGHTS. 323 
 
 of the agent in the course of his employment is that of his principal, and 
 he is responsible for it.^ But he is not liable for what is done not in con- 
 nection with the transaction of his business or a willful trespass. Where 
 the agent commits a wrongful act in pursuance of his employment, he 
 himself is responsible as well as the principal, for no one can excuse him- 
 self of a wrongful act by the authority or command of another. 
 
 § 14. Generally speaking, a person may employ an agent to perform 
 for him whatever he may lawfully do himself. But to this there are 
 exceptions. There are certain personal rights and privileges that cannot 
 be committed to another, as the political right of voting at a State elec- 
 tion. Nor can any delegated authority be transferred to another, as an 
 agency, unless specially authorized to do so. All special authorities 
 given to others must be strictly performed, or the act is void, as if an 
 authority is given to two or more, it must be performed by all. It 
 being apri vate authority, it must be performed according to its terms, and 
 no deviation will be tolerated, unless the authority itself provides for it. 
 
 § 15. Another private relative right — that of principal and surety — 
 may be here considered. A surety is in some measure a volunteer, and 
 is more for the benefit of the creditor than for any one else ; and, there- 
 fore, the law holds the creditor to the strict terms of the contract and 
 pei'fect good faith. If, therefore, without the consent of t he surety, ho alter 
 the terms of the contract in any way, as by giving the principal, upon 
 some new consideration, further time, he thereby releases the suretj-. 
 For it is the surety's right, when the obligation becomes due, and the 
 principal neglects to pay, to take it up himself and immediately pro- 
 ceed to collect it from the principal for his own indemnity ; but if the 
 creditor upon any new consideration be given further time, it becomes 
 a new -contract, and the surety could not take it up and prosecute it 
 when originally due, and consequently the surety is discharged. So if 
 the creditor has his pay actually or potentially in his power, and he 
 neglects or refuses to receive it, the surety is also discharged. The 
 creditor can only hold the surety by the strict terms of the original con- 
 tract, and if he do anything by which the surety is placed in a worse 
 situation, or in bad faith refuses to receive his pay when he can, he has 
 in law or equity no further claim upon the surety. 
 
 § 16. The law sympathizes with the surety, and gives him relief in 
 various ways without doing the creditor any injustice. By the statute, 
 when the debt becomes due, the surety is authorized to serve a written" 
 
 • The maxim respondeat superior is more appropriately applied in actions e.r 
 delicto, where both principal and agent are liable — the principal, because he 
 ordered or authorized the act ; the agent, because it was a wrong or a tort. See 
 Broom's Max. [759] and [59]. 
 
 2 The notice must be in writing, 7 0. B. pt. 1, 72. A plea setting up this de- 
 fense must state the notice was in writing or it will be bad on demurrer. Ibid. 229. 
 
324 PRIVATE LAW. [book u. 
 
 notice on the creditor requiring him to proceed to collect the claim; and 
 in case he neglects to do so in a reasonable time, the surety will be 
 thereby discharged. The code also provides for proceedings by which 
 the surety, upon the proper affidavits, showing the danger of the failure of 
 the principal, and loss of the debt by the delay, may proceed against the 
 principal, even before the claim becomes due. 
 
 § 17. There are various other civil, private relations, such as factors, 
 clerks, merchants, shippers, etc. But the law of master and servant, 
 principal and agent, together with that of partnerships, which will be 
 next treated, will, in a great degree, involve the whole law in relation 
 to those private rights, and supersede a separate and further considera- 
 tion of them here. 
 
 II. PAETNEESHIP. 
 
 § 18. Partnership embraces another class of the relative rights of per- 
 sons, in their civil relation, and frequently ranked as a part of the laws 
 of merchants. But in reality it is applicable to all the civil relations of 
 life, wherever two or more persons unite in business for their mutual 
 benefit. In treating of it, it- is purposed to consider: I. Its nature and 
 creation ; II. The rights and duties of partners ; III. Its disolution ; 
 and IV. The legal remedies in cases of partnership. 
 
 § 19. I. Its nature and creation. Partnership is a contract between 
 two or more persons, to place their money, effects, labor, and skill, or 
 any or all of them, in lawful commerce or business, and to divide the 
 profits or loss of it in certain proportion. It is a community of interest, 
 which may be created either by an express stipulation or agreement, or 
 it may result by implication of law, from an agreement to share, or the 
 actual participation in the profits or loss of any business or undertaking. 
 It is the participation in the loss and profit which is the test whether 
 there is a partnership or not. A joint purchase or possession only ren- 
 ders persons joint tenants, and does not of itself constitute partners. 
 There must be not only a joint concern in the purchase, but a joint 
 interest in the future sale, with a view to the profits and loss in the 
 transaction. Therefore the possession of joint tenants, or that of sur- 
 viving partner with the representatives of deceased partners, does not 
 of itself constitute them partners, though they have a community of 
 interest in the joint stock. Nor is a person a partner who only takes a 
 part of the profits for his expenses, trouble, or services, as an agent, 
 clerk, or other employee.^ 
 
 § 20. But not only the participation in the profit and loss, but the 
 holding out to the world that he is a partner, and inducing others 
 
 1 This is said if he is to share in the profits only, but if he shares in both profit 
 and loss, he naustbe held as a partner. Choteau vs. Eaitt, 20 0. E. 132. 
 
CHAP. XIII.] RELATIVE CIVIL EIGHTS. 325 
 
 thereby to give credit on that assurance, which also renders a person 
 responsible as a partner. There is no necessity that the partners should 
 share alike in the profit or loss. This may be as the parties shall agree ; 
 but if there should be no agreement between them about it, the general 
 conclusion of law is, that it shall be equally divided between them. 
 
 § 21. A partnership may be formed in relation to any kind of busi- 
 ness, and it is by no means confined to mercantile transactions.' This 
 may be as the parties will or may have agreed. This, however, should 
 be settled by their agreement of copartnership, as well as the share of 
 stock, that each should contribute, the part of the business that each 
 should perform, the proportion of profit or loss that each should have 
 or bear, and the like matters ; for otherwise, in the absence of any evi- 
 dence on the subject, the law would have to divide all these matters 
 equally between them. And especially should there be a specific un- 
 derstanding as to compensation where the services are unequal ; for in 
 contemplation of law, partners are under promise to each other that they 
 will faithfully and diligently apply their skill,' industry, and experience 
 to the mutual interest of the concern, and therefore where one has ren- 
 dered more, or more extraordinary service than the other members of 
 the firm, he cannot charge and collect extra compensation for such ser- 
 vices, unless there be a special arrangement of the kind, for the law 
 would otherwise contemplate that such diligent services Avere promised 
 in entering into the partnership. 
 
 § 22. There may be a general partnership at large, or it may be con- 
 fined or limited to a particular branch of business, or a particular object. 
 This subject, as well as the amount of stock, the services and the 
 division of the profits, are matters that should be stipulated; for other- 
 wise the law would only hold each partner for what he has actually put 
 into the firm, and then divide the loss and profit upon that. But there 
 is a striking difference between the liability of partners as it respects 
 themselves and as it respects the public. Though the law allows part- 
 ners to regulate their concerns as they please in regard to each other, 
 they cannot, by arrangement among themselves, control their responsi- 
 bilities to others. Each individual member is answerable in solido to 
 the whole amount of the debts, without reference to the proportion of 
 his interest, or the amount of profits he may have received. 
 
 § 23. In commercial partnerships the business is usually carried on 
 under a firm name, by which, as by a sort of corporate denomination, 
 the associate body is described in its dealings, without using the names 
 
 1 It may exist in the purchasing of real estate. Ludlow vs. Cooper, 4 O. S. R. 1. 
 
 ' Stidger vs. Reynolds, 10 O. R. 351. A partner who has undertaken the entire 
 control of the business of the firm is chargeable with the ordinary profits, and it 
 lies on him to explain his failure to realize such profits. 
 
326 PRIVATE LAW. [book ii. 
 
 of the several members, though each member will be equally responsi- 
 ble. Each member becomes the authorized agent of the company in 
 the transaction of its legitimate business. The contracts and acts of 
 the several members in the business of the firm become, in point of 
 law, the contracts and acts of the copartnership, binding upon the 
 whole. This responsibility is placed upon the principle of agency, and 
 that agency is assumed by the law as a principle necessary for the pro- 
 tection of all others. The authority and powers of each member may 
 be limited and regulated among themselves, but so far as the public is 
 concerned, a general agency exists, unless in each individual case there 
 is a special notice to the contrary.' 
 
 § 24. Although each member of the partnership is equally responsi- 
 ble to the public, j'et their relation to each other may be very different, 
 and are thus usually distinguished : an ostensible partner is he who is 
 actually interested in the profit and loss of the copartnership, and .suf- 
 fers his name to appear as one of the firm, though he may not be one 
 of the active and business members of the company. A dormant^ or 
 sleeping partner is one who, to the public, is a secret partner, but one 
 who, by an agreement among themselves, is to participate in the profits, 
 though he does not suffer his name to appear as one of the firm. A 
 nominal partner is one who suffers his name to be used in the firm in 
 order to give it credit and influence, without sharing in the profits, and 
 often under an arrangement with the actual members to indemnify him 
 for any loss he might sustain in consequence of his arrangement with them. 
 
 § 25, A limited partnership has frequently been attempted by a mere 
 arrangement and agreement of the parties ; but such attempts, though 
 binding and valid between the parties themselves, are utter failures as 
 to others and the public in general. For the law holds every one vi'ho 
 participates in the partnership as personally responsible to others for 
 the debts and liabilities of the company, and this upon the principle that 
 public safety and policy require it, and as necessarj' to the due adminis- 
 tration of justice. A person, by participating in the profits, reduces the 
 fund which ought to be applied to the payment of the debts of the com- 
 pany. As he receives a benefit in the one case, so ought he to sustain 
 the loss in the other. And where any one has given a credit to a com- 
 pany by the use of his name, or holding himself as a member, thereby 
 inducing public confidence and credit, as a matter of justice he should 
 be held responsible for the consequences. Each individual, therefore, 
 is made responsible to strangers, leaving the final settlement of the 
 matter to be adjusted among the partners themselves according to the 
 terms of their own arrangements. 
 
 1 Broom's Max. 743 ; 2 Stephens's Com. 151 ; 10 East. E. 264. 
 a 20 0. K. 132. 
 
CHAP. XIII.] RELATIVE CIVIL RIGHTS. 327 
 
 § 26. In Ohio, and in some other States, however, there is a special 
 law enabling persons to form limited partnerships ; making a distinction 
 between the general and the limited partners, requiring a public decla- 
 ration of the position of each, and restraining the limited partners from 
 interfering with the general 'business of the firm. By general restric- 
 tions and limitations, which must be strictly observed and complied 
 with, or the party would become liable as a general partner, the law, 
 without danger to public justice, enables one to aid in a partnership 
 transaction with his capital without becoming responsible beyond the 
 capital invested for the general result. This law, in relation to limited 
 partnership, is well guarded by numerous conditions and restrictions 
 for the purpose of protecting public justice ; at the same time it encour- 
 ages the investment of capital in aid of the public enterprise and in- 
 dustry. 
 
 § 27. II. The rights and duties of partners. When the relation of 
 partners has been finally entered into between the parties, each one 
 becomes, by law, the agent of the other for all purposes necessary for 
 carrying on their particular partnership, or the business usually be- 
 longing to it, whether general or special. For a partner is considered 
 as the accredited agent of the rest, and will consequently bind the firm 
 by his act or assurance made with reference to their business in the 
 absence of any notice to the contrary, or collusion between him and the 
 other contracting party .^ 
 
 § 28. Each partner has also complete control of the whole partner- 
 ship property ; and generally, by his sole act, in the name of the firm, 
 may either sell, pawn, or pledge the whole, or any part of it, or make 
 contracts in relation to it, which shall be binding on all the partners. 
 But in relation to matters not within the ordinary scope of the business 
 of the firm, no presumption of such agency exists, and the consent of the 
 other partners is necessary to its binding effect on them. One partner, 
 therefore, cannot give the partnership as surety or guaranty for the 
 debtor miscarriage of a third person, unless such has been the previous 
 course of dealings. Neither can one partner bind the copartnership by 
 any sealed instrument or deed.^ For generally such signing and seal- 
 ing, though in the partnership name, will only bind that partner, unless 
 he has been so authorized by a power of attorney from the others. But 
 if such instrument, under seal, be executed by one partner in the pres- 
 ence and at the request of the other partners, in their firm name, they 
 will be bound by it. 
 
 1 Broom's Max. 743. 
 
 2 But this rule does not extend so far that an agreement is no evidence against 
 the firm because a seal happens to be attached to it. Purviance vs. Sutherland, 2 
 O. S. K. 478. 
 
328 PRIVATE LAW. [book ir.' 
 
 § 29. A person by joining a partnership, as a member, does not thereby, 
 without a special promise, assume the previous debts of the firm, nor is 
 he individually any ways bound by them, though the property that he 
 puts into the firm, as firm property, is subject to be applied to the pay- 
 ment of such previous firm debts. To render a person jointly liable 
 upon a contract as partners they must have a joint interest cotempo- 
 rary with the formation of the contract. If a person contracts a debt 
 for property, with a view of going into a partnership, and afterward does 
 so, and takes the property with him, the firm is not liable for such debt, 
 though his interest in the firm is subject to the satisfaction of his debt, 
 subject first to payment of the debts of the firm. The interest of a part- 
 ner in the property of the firm is subject to his individual debts, and 
 may be levied upon by an execution against him and sold, subject, how- 
 ever, in equity, to the final settlement of the partnership accounts.^ 
 The execution should be levied upon the whole property taken in exe- 
 cution, and his individual interest or share in it sold ; for if the levy be 
 made on a moiety only, only a moiety of that moiety can be sold. If the 
 other partners, upon being informed of the levy, do not object to the 
 sale, the whole interest might be sold, and the firm would have a right 
 to charge that partner with the value of the property so taken and applied 
 to the use and benefit of such partner ; but if they objected to it, only his 
 interest or share could be sold ; and if the partnership be insolvent, 
 they may apply, in equity, to have the partnership debts first settled, 
 and only the individual interest, after such settlement, applied to the 
 satisfaction of the execution. 
 
 § 30. A partner has no right to appropriate the property of the firm 
 to the payment of his individual debt, or to embarrass it therewith, with- 
 out his partners' consent. A creditor who would take such firm prop- 
 erty or security to satisfy what he knew to be the separate debt of the 
 partner, would be subject to the imputation of perpetrating a fraud 
 upon the partnership, which would render the transaction void as to 
 them. Unless the partners have done something to mislead, one part- 
 ner cannot make a valid partnership engagement, except on the partner- 
 ship account, as the partnership business is defined and known. Wliere 
 there has been nothing to mislead, every one is presumed to know the 
 extent of the partnership with whose members he deals. Negotiable 
 paper, however, in the hands of innocent holders, is not subject to the 
 inquiry as for what debt the paper was issued. 
 
 § 31. The acknowledgment of one of the partners, while the partner- 
 ship continues, is considered sufficent to take a debt due from the firm out 
 of the statute of limitations. But after the dissolution of partnership, 
 
 1 Place vs. Sweetser, 16 0. R. 142 ; Nixon vs. Nash, 12 0. S. E. 647; Sutcliffe 
 vs. Dohrman, 18 O. E. 181. 
 
CHAP. XIII.] RELATIVE CIVIL RIGHTS. 329 
 
 such acknowledgment is not considered sufficient for that purpose, unless 
 in cases where such single partner has a general authority from the rest 
 to adjust and settle the partnership concerns. A partner, after the dis- 
 solution of the firm, may release or compromise any debt due to the 
 firm, for this is what all joint creditors may do. It is said that one 
 partner has no authority to submit a partnership question or claim to 
 arbitration, for it seems that for that purpose the assent of all is neces- 
 sary. But still it may well be supposed that under a general authority 
 to settle and adjust the affairs of the company, either before or after the 
 dissolution, such submission to arbitration would be valid. 
 
 § 32. In partnership transactions the law requires good faith and 
 honest dealings, as in all the transactions of life, and will not allow the 
 property or interest due to one to be diverted or used to the special benefit 
 of another. Therefore, one partner will not be permitted to transact 
 business or derive a profit from any source which would be within the 
 scope of the business of the partnership, unless expressly authorized by 
 the partnership to do so; for otherwise the partnership might claim the 
 profits of the transaction for the benefit of the firm, or those benefits 
 which were expected for the advantage of the firm might be diverted 
 to the use of someone individual of the firm who might be more knavish 
 than the rest. And although such outside business might be trans- 
 acted in the partner's individual name, so that the partnership might 
 not be responsible, yet if the transaction turns out a profitable one, the 
 firm might hold him accountable, but if a bad investment, leave it on 
 his hands as a just retribution. 
 
 § 33. Partnership property, under the rules of the common law as to 
 survivorship, became the property of the survivor, which applied to all 
 other joint property ; and this was extended there to real as well as 
 personal property ; so that all property, whatever be its nature, pur- 
 chased with the partnership capital for the purposes of the partnership 
 trade, continued to be partnership capital, and to have, to every intent, 
 the quality of personal estate." In Ohio the right of survivorship in 
 any joint property is obsolete and unknown, and the courts have been 
 most liberal in preserving the rights of the partnership to all kind of 
 property in which the capital of the firm may happen to be invested.^ 
 If that should be in land, equity will consider the person in whom the 
 legal title is vested as a trustee for the whole concern, and the proceeds 
 of the property will be distributed as personal estate. 
 
 § 34. III. Dissolution of the partnership. Where the contract for 
 the copartnership fixes the time of its duration, or where it is formed 
 for a single transaction, or the accomplishment of some particular ob- 
 je^.t, the partnership terminates when that time arrives, or that trans- 
 
 1 Broom's L. Max. 407. '^ Ludlow vs. Cooper, 4 O. S. E. 1. 
 
330 PRIVATE LAW. [book II. 
 
 action is completed, or the particular object accomplished. But by 
 common consent it may continue; and if there be no new contract 
 modifying its terms, its continuance will be under its former stipula- 
 tions. But without reference to any stipulations in the contract of 
 copartnership, limiting its duration, the partnership may at any time 
 be dissolved by mutual consent. And even contrary to such stipula- 
 tions for its duration, the copartnership may at any time, at the will 
 and pleasure of any one of the partners, be dissolved, without any 
 previous notice, and without the consent of his partners. But if that 
 is done in violation of the terms of their copartnership, he may be 
 liable to an action and damages for such breach of the terms of his 
 contract, unless there be some good justification for so doing. 
 
 § 35. Besides this express dissolution by the act of all or any one of 
 the partners, a firm may be dissolved in a number of other ways. The 
 death of one of the partners dissolves the partnership, however numer- 
 ous the partners may be. But such a contingency may be provided 
 for in the contract of copartnership by some provision ; as, for instance, 
 that the survivors shall continue after settling with the estate of the 
 deceased partner, or that the heir, or some one representing the deceased 
 partner, shall be admitted into the firm in his stea^, upon the terms 
 agreed upon. 
 
 § 36. The partnership may also become dissolved by other acts, as 
 by the assignment of one of the parties of all his interest in the firm, 
 or by his interest having been attached or sold upon execution or in 
 bankruptcy. But in all cases the interest which may be thus disposed 
 of must be taken subject to the settlement of the concern, and the pay- 
 ment of all the partnership debts; for the creditors have a lien upon 
 the partnership effects for the payment of the debts due them in prefer- 
 ence to any such new acquired rights. The assignee, or others claim- 
 ing under such outgoing partner, can claim only what the partner 
 himself could claim after all debts are settled and paid and the rights 
 of the partners are satisfied, for which they have a lien for their share, 
 not only of what they put in as the original stock, but whatever may 
 be acquired since, subject to the payment of all debts and claims against 
 the firm. 
 
 § 3t. When there is a reasonable excuse for the dissolution of the 
 partnership before the expiration of the time for its own limitation, it 
 may be dissolved by a decree and proceedings in a court of equity, 
 founded upon the existence of such reasonable excuse. Such excuse and 
 reason for dissolution may be, that the partner is acting fraudulently, 
 or in violation of the terms of the copartnership,^ or contrary to his duly 
 as a partner. Such causes might justify the other partners in dissolving 
 
 'Durbin vs. Barber, 14 O. K. 311. 
 
CHAP. XIII.] RELATIVE CIVIL BIGHTS. 331 
 
 the partnership of their own accord ; at any rate, would go in mitigation 
 of damages, if any were claimed, on the account of the dissolution be- 
 fore the time limited by the contract. 
 
 § 38. The dissolution of the partnership works an absolute revo- 
 cation of all implied authority in either of the parties to bind the other 
 to new engagements made with persons having notice of the dissolution, 
 although founded upon a previous indebtedness of the firm ; nor could 
 it be implied from such partner having general authority to settle up and 
 close the affairs of the firm.' But persons having had previous dealings 
 with the firm, and having no notice of the dissolution, may in good faith 
 deal with the partners as though the partnership still continued. Such 
 dealings, however, must be limited to matters within the scope of the 
 authority of the partners, and in the usual and ordinary course of part- 
 nership business.^ Upon the dissolution of a firm, care should be taken 
 to give general notice thereof, and special notice to all with whom there 
 had been previous dealings, in order to cut off liability for further credit. 
 
 § 39. IV. The legal remedies in cases of partnership. When there 
 is any cause for legal proceedings between partners in any way in- 
 volving their partnership business, there is great difficulty of proceed- 
 ing at law, on the account of the complication of matters necessarily 
 involved, as trusts, confidence set-off, and the settlement of complicated 
 accounts. In case, therefore, one partner has any cause of action 
 against another, in his partnership capacity, the usual course is not to 
 commence a suit at law, but to institute proceedings in equity for the 
 settlement of accounts, and such other redress as the case may require. 
 In such proceedings, whenever it becomes necessary for the advance- 
 ment of justice, courts of equity will allow an injunction against any un- 
 warranted proceedings, appoint a receiver, or refer the case to a master 
 or referee to take and settle the accounts. For these purposes the mode 
 of proceeding in equity or chancery is peculiarly well adapted, and that 
 at law is not. 
 
 § 40. An action at law might be maintained by one partner against 
 another upon some promise or covenant in connection with their part- 
 nership which did not involve their account and partnership business. 
 Thus, where there was a stipulation in the articles of copartnership by 
 which a person promised to do or perform something independent of the 
 profits or business of the firm, it was held that an action at law might 
 be sustained, for not doing it upon such independent promise or cove- 
 nant, without regard to the partnership matters, for it does not neces- 
 sarily involve the whole settlement of accounts to ascertain the damages ; 
 
 I Palmer vs. Dodge, 4 O. S. E. 21. 
 ' Myers vs. Standart, 11 0. S. E. 29. 
 
332 PBIVATE LAW. [book ii. 
 
 as if a partner covenanted to advance stock, or not to withdraw, or the 
 like independent covenants."^ 
 
 § 41. The creditors of the partnership have a claim upon the partner- 
 ship property preferable to the creditors of individual members, which has 
 often been called a lien ; and the courts will protect such claim, and follow 
 it, into whosoever's hands it may be found, except as to bona fide pur- 
 chasers. The general creditors of a firm, before a levy or seizure, have 
 no specific lien on the assets of the firm. Their claim must rest on the 
 rights still remaining in the firm, not having been in good faith disposed 
 of by the firm by a transfer to a bona fide purchaser. While the prop- 
 erty remains in the possession and under the dominion of the firm, their 
 right to dispose of their joint assets in good faith is not impaired by 
 their insolvency, and their creditors can only operate upon such assets 
 as still remain the property of the firm, or such as have been fraudu- 
 lently transferred.^ 
 
 § 42. In the administration of justice between partners and their credi- 
 tors courts labor to ascertain the rights and property of each, — of the 
 firm and that of the individual members, and of the several creditors of 
 each, — and to keep the assets belonging to each separate and distinct, 
 so as to preserve the rights of each and do justice to all. It is therefore 
 a rule, in the distribution of the joint and separate assets of insolvent 
 partners, that the partnership assets be first applied to the partnership 
 debts, and the individual assets of a partner be first applied to the debts 
 due to his individual creditors ; the preference of the separate creditors 
 in the individual property results as a necessary consequence from the 
 priority that has always been given to the partnership creditors in joint 
 effects. These rules result as necessarily inseparable from the nature 
 of the partnerships and the relation of partners and their creditors to 
 and with each other. 
 
 § 43. The rule does not apply when there is no joint estate for distri- 
 bution, and no living solvent partner; for then the joint creditors are 
 equally the creditors of the individual estate with his separate creditors, 
 — they are all the creditors of that estate to be distributed among them, 
 and are put on a par with each other. But where there are joint and 
 separate effects for distribution, the joint creditors can, in equity, only 
 look to the surplus of the separate estate of a partner, after the payment 
 of his individual debts. And the individual creditors can, in the like 
 manner, only seek distribution from the partnership effects, out of the 
 surplus of the joint funds, after the payment of the partnership debts.* 
 
 1 McArthur vs. Ladd, 5 O. K. 521. 
 
 2 Sigler vs. Knox Co. Bank, 8 0. S. E. 511 ; Gwin vs. Selby, 5 0. S. B. 96; 
 Mullen vs. Estell, 5 0. S. E. 508. 
 
 8 Rogers vs. Meranda, 7 0. S. E. 179. 
 
CHAP, xiii.] RELATIVE CIVIL RIGHTS. 333 
 
 § 44. TJpon the death of a partner, the partnership is dissolved, but 
 the right to the partnership property surv^ives to the surviving partner, 
 who, as such, has a right to collect the outstanding assets, and account 
 to the personal representative of the deceased partner for his interest in 
 the partnership, after the debts of the firm are satisfied. The surviving 
 partner holds the interest of the deceased partner purely as trustee, and 
 is bound to account to the personal representative as soon as practicable. 
 And in case this is not so done to the satisfaction of the personal repre- 
 sentative, he may apply for the aid that a court of equity can render 
 him in settling up the estate's interest in the partnership. The surviv- 
 ing partner has no right to continue the partnership, for that is dissolved 
 by the death of a partner, — his right is only to collect, settle, and to 
 account, in case the personal representative is satisfied with his doing 
 so, without applying to a court of equity to do it for them.^ 
 
 § 45. The statute of Ohio, in aid of the common law and equity in 
 "regulating the duties of surviving partners," has provided^ that when 
 any person shall die who was a member of any partnership, it shall be 
 the duty of the surviving partner, within thirty days, to make applica- 
 tion to the probate judge, first giving notice to the administrator or 
 executor of the deceased partner, for the appointment of three appraisers, 
 whose duty it shall be to make, under oath, a full inventory and ap- 
 praisement of the entire assets and liabilities of the partnership, and 
 return the same to the probate court. If the surviving partner shall 
 neglect or refuse to have this done, it shall be the duty of the adminis- 
 trator or executor to have the same done. The statute further provides, 
 it shall be lawful for the surviving partner, with the consent of the ad- 
 ministrator or executor, and the approval of the probate court, to take 
 the assets as appraised, first deducting therefrom the debts and liabilities 
 of the partnership, and giving the administrator his promissory note, 
 with approved security, for the payment of the Interest of the deceased 
 partner, and also giving security for the payment of the debts and liabili- 
 ties of the partnership. This may facilitate the matter if all the parties 
 interested agree to it, and comply with its provisions ; but otherwise, it 
 would be left as it was before the passage of the statute, except the 
 taking of the inventory. 
 
 1 Lockwood vs. Mitchell, 7 O. S. E. 387. 
 
 2 Statute of March 21, 1861. 
 
334 PRIVATE LAW. Ibookii. 
 
 CHAPTER XIV. 
 
 DOMESTIC RELATIONS. 
 
 § 1. In pursuing the division of the law as proposed, we have now 
 before us that portion which relates to the rights of private persons in 
 their domestic relations.^ These relative rights are — I. Husband and 
 wife ; II. Parent and child ; III. Guardian and ward ; IV. Master and 
 servant. 
 
 § 2. I. Husband and wife. The first in importance of these domestic 
 relations is that of husband and wife, usually denominated in law books 
 baron and feme, and placed first because of its great importance to the 
 State, to morals, and to the welfare of mankind. The laws of every coun- 
 try have manifested a deep concern over this relation, and great anxiety 
 to mould it in conformity to their notions of morality and the happiness 
 of the people. The object has generally been to make the transaction 
 notorious and certain, and that the rights of all in relation to it might be 
 easily asserted and protected. In some countries it has been considered 
 a religious institution, and the marriage vow to be a sacred and Chris- 
 tian rite, only to be performed by an ecclesiastic. But in Ohio, as well 
 as in the Union generally, so far as the law is concerned, it is treated 
 wholly as a civil institution, regulated by the civil law, in conformity 
 with right and justice to individuals and the best interest of society. 
 The law of husband and wife, as it exists here, is founded much on the 
 common law, modified by our statutes. This relation between the par- 
 ties is an assumed obligation between themselves, called the marriage 
 as regulated by law. In pursuing the subject, the inquiry shall be : 
 first, how marriage may be contracted ; secondly, the legal effect and 
 consequences of the marriage ; and thirdly, the manner in which the 
 marriage obligation may be varied or dissolved. 
 
 § 3. 1. Sow marriage may be contracted. The law considers mar- 
 riage, by which two persons, male and female, become husband and 
 wife, in the light of a civil contract, and applies to it, with some excep- 
 tions, the general principles that govern other contracts. In order 
 that it should be valid, the parties should be able and willing to con- 
 tract, and then, that they did actually contract and declare it in the 
 
 1 Keeve's Dom. Eela. passim ; 2 Kent's Com. xxvi-xxxii.; 2 Stephens's 
 Com. 280. 
 
CHAP. XIV.] DOMESTIC EELATIONS. 835 
 
 manner required by law. It is an obligation entered into between 
 the parties, under a solemn promise to live and cohabit together as 
 husband and wife, and to love and cherish each other for life. 
 
 § 4. In order that the contract of marriage should be valid, like all 
 other contracts, it should be contracted by and between parties who 
 are morally capable of giving their consent to it, and have those requi- 
 sites that the law requires previous to its consummation. It should 
 have the free assent of each of the parties, — at least it must not be 
 extorted by fraud or duress, — and they should have sufficient intellect 
 to understand common affairs of life, — at least each one of them must 
 be neither an idiot nor a lunatic at the time. Each must have the requi- 
 site age, be free from the restraints of a former marriage, and not within 
 the prohibited degrees of consanguinity. Our statutes provide that 
 male persons of the age of eighteen years, and females of the age of 
 fourteen years, not nearer of kin than first cousins, and not having a 
 husband or wife living, may be joined in marriage, provided that the 
 male, when under the age of twenty-one years, and the female under 
 eighteen, shall first obtain the consent of their respective parents or 
 guardians. It is also required, as a preliminary step, that either bans 
 be published, or a license be obtained from the probate court. The 
 marriage may then be solemnized by any minister of any religious 
 society who has obtained previously a license for the purpose from the 
 probate court, or by a justice of the peace, or some other civil officer 
 authorized, who are required to make return of such marriage to the 
 probate court, for the purpose of preserving a record of the trans- 
 action. 
 
 § 5. Some of these requisites and preliminary steps are absolutely 
 required, or the marriage will be void ; others are only directory, and 
 their violation only subjects the person guilty to a penalty, or the 
 payment of damages to the person injured by the fault. Where the 
 mental capacity necessary to a proper assent is wanting ; or the parties 
 within the prohibited consanguinity ; or where one of the parties bad 
 a former husband or wife living, the marriage so solemnized is abso- 
 lutely void, and may be disregarded. But a better and safer way than 
 to treat such marriage void upon one's own motion, would be to pro- 
 cure a decree of a court having jurisdiction of divorces, declaring the 
 same void. The want of some of the other requisites would render the 
 marriage voidable only, while others again would have no injurious 
 effect upon the obligation of the ceremony, or the validity of the mar- 
 riage, but might subject the person guilty of such misfeasance or non- 
 feasance to the penalty of the law. Thus, if one of the parties be under 
 the age of consent, where the male is under eighteen or the female 
 under fourteen, the marriage contract is voidable, and may be avoided 
 
336 PRIVATE LAW. [book n. 
 
 or conSrmed upon the party arriving at the proper age.' And where 
 the party by whom the marriage ceremony is performed has no legal 
 authority to officiate, still, if the parties consented, and the marriage was 
 consummated by the parties, the marriage will be valid, though the 
 person so illegally pfficiating might be punished.^ So it would be if 
 any one neglected to make a proper return or record of the marriage. 
 
 § 6. The law of marriage differs in various countries, and its validity 
 or nullity depends upon the laws of the place where it is solemnized. 
 It is considered as a part of the jus gentum, and the general rule is that 
 a marriage, valid by the laws of the place where contracted, is valid 
 everywhere. In some countries, however, marriage is considered void, 
 not only on account of the want of those essential requisites required 
 here, but also on account of the want of certain forms and ceremonies 
 required by the laws of the place. It is to be presumed that a marriage, 
 void by the laws of the country where solemnized, on account of any 
 such requisites, would be considered void here, unless such marriage 
 should be confirmed by cohabitation here. 
 
 § Y. It seems to be the acknowledged principles of the common 
 law that marriage is not void on account of its being irregularly cele- 
 brated ; nor does it require any ecclesiastical sanction to give it validity.' 
 It is considered in the light of a civil contract merely, and no par- 
 ticular form is required. If made per verba de prsesenti, and is not fol- 
 lowed by cohabitation, or per verba defuturo, and followed by consum- 
 mation, it amounts to a marriage.* This doctrine of the common law 
 forms the basis of the law upon the subject in most of the States, mod- 
 ified by their own statutes, which establish a variety of rules, and which, 
 with the decision of the courts upon them, produce quite a conflict as to 
 the result to be derived from them. In some of the statutes it is declared 
 that the marriage entered into, not in conformity with it, is void. Yet 
 it is doubtful whether in any case it will be held that the issue of such 
 irregular marriages are illegitimate. Where the parties were not within 
 the prohibited degrees of consangainity, and were persons within the 
 age of consent, — were persons intellectually capable of giving consent, 
 and did actually consent, — there the result to be gathered from the 
 cases is this : 1st. Where the marriage is celebrated in conformity with 
 the requirements of the statute, such marriages are valid, though the 
 parties separated and never thereafter lived together as husband and 
 
 • Such marriage is voidable, unless confirmed by cohabitation after arriving 
 at those ages ; and without such confirmation it will not subject a person to pun- 
 ishment for bigamy for contracting a subsequent marriage while the first husband 
 or wife is still living. Shafher vs. the State, 20 O. B. 1. 
 
 2 See Duncan vs. Duncan, 10 0. S. K. 181 ; Carmichael vs. State, 12 O. S. B. 553. 
 » 2 Kent's Com. xxvi. 75; Eeeve's Dom. Bel. 310 and n. 1. 
 
 * Beeve's Dom. Eela. 310 and u. 
 
CHAP. XIV.] DOMESTIC RELATIONS. 337 
 
 wife. 2d. Where the marriage had been celebrated Irregularly, as be- 
 fore persons without the regular authority, or without complying with 
 the law in other respects, such marriage is considered valid if followed 
 up by cohabitation as husband and wife, — though the persons aiding in 
 the ceremony may be liable to a penalty for the violation of the law, and 
 though without being so followed up by cohabitation, it might be invalid 
 to secure marital "rights, as dower, etc., or to support a prosecution for 
 bigamy. And 3d. An agreement to marry, made between a man and 
 woman, by words declaring such agreement and intention, followed by 
 continued and uninterrupted cohabitation, though not solemnized accord- 
 ing to law, has been considered a valid marriage.' It is to be observed 
 that the circumstance of the parties afterward living and cohabiting as 
 man and wife, in confirmation of such irregular marriage, has had much 
 force in holding it valid. 
 
 § 8. 2. The legal effects and consequences of (he marriage. By 
 the marriage the condition of the woman is materially changed ; that 
 of the man remains much the same, except the new obligation he has 
 taken upon himself to protect and support his family. This union, 
 the law contemplates, shall continue so long as they both shall live, for 
 the mutual and joint interest and happiness of the parties, and for the 
 purpose of promoting the welfare of the State. Their interest being 
 joint and the same, and their capacities, tastes, and strength being 
 unequal and dissimilar, their joint interest is promoted, as in all human 
 vocations, by a division of labor and responsibilities. He assumes the 
 immediate duties of providing for and protecting the family ; she, with 
 more taste and better adaptation to it, the care and arrangement, the 
 discipline and endearments of the family and home ; he to be called — 
 often at the peril of his life — to the masculine duties of supporting and 
 protecting the interest and welfare of his country and government, in 
 war and in peace ; she, to those more feminine duties of caring for those 
 things that endear to the human heart wife, children, and home. 
 Accordingly, the law has arranged and adapted itself to accomplish and 
 provide for this difference in the sexes, and to promote this natural divi- 
 sion of labor and responsibilities. 
 
 § 9. Although by the law of marriage the wife is placed in some 
 measure under the protection and guardianship of the husband, so that 
 in the sale of her property, the consent and united act of the husband 
 are required to its validity, still, the law surrounds her with numerous 
 safeguards to protect her interest, and save her from imposition, fraud, 
 and crime. In the execution of a deed of conveyance of any kind touch- 
 ing her interest, it is required that the wife should be joined with the 
 
 1 See the cases of Carmichael vs. the State, 12 0. S. E. 553 ; Duncan vs. Duncan, 
 10 O. S. K. 181. 
 
 22 
 
53S PRIVATE LAW. [book ii. 
 
 husband in the act, and that there should also be a separate examination 
 of the wife by an officer, to ascertain and certify tiiat the act was free 
 and voluntary, and that stie was satisfied therewith ; otherwise such 
 deed, as to her interest, would be absolutely void. She may also have 
 a separate property, Avhich will be protected from the improper inter- 
 ference of the husband ; and in equity he is frequently made and held 
 as a trustee, for the purpose of protecting her separate' rights. The law 
 further protects her against the neglect and desertion by the husband, 
 • — secures to her, as far as possible, her claims upon him for protection 
 and support ; and punishes bigamy. For any gross violation of the 
 marriage contract (the statute provides) she shall be entitled to a decree 
 of the court for divorce and for alimony. The law also protects the 
 wife from all violence or injuries of the husband, and he may be pro- 
 ceeded against in cases of personal injuries, and compelled to give bonds 
 to preserve the peace, and be of good behavior tovvard her.' 
 
 § 10. By the common law, upon the marriage, the husband and wife 
 were regarded as one person, and her legal existence in some measure 
 suspended during coverture. This has been in some degree modified 
 and improved by our statutes ; still, the marriage relation here is based 
 substantially upon the principles of the common law. The supposed 
 identity of person of the husband and wife interferes in law with the 
 capacity of contracting with each other, and of passing and conveying 
 property from one to the other ; upon the same principle that one person 
 cannot make a conveyance to himself ; for in contemplation of law there 
 must be two parties to all conveyances or contracts — one to convey and 
 the other to receive — one to give and the other to take. Whenever, 
 therefore, it is desirable to make a conveyance or any contract between 
 the parties, it should be through the medium of a trustee ; as in case 
 where the husband and wife convey to a trustee, and the trustee convey 
 again, upon the terms agi'eed upon, to either the husband or wife. A 
 devise may be made by the husband to the wife, for the reason that the 
 instrument does not take effect until after his death ; and for the same 
 reason, as a wife in Ohio may make a will, she may bequeath any prop- 
 erty to her husband. But should the husbaud, by writing, execute a 
 note or any agreement with the wife, upon any consideration that would 
 be binding upon other individuals, a court of equity will enforce it.* 
 There arc, however, difficulties in enforcing such inchoate contracts 
 against the wife, even in equity, for the reason that contracts on her 
 
 ' In such cases, contrary to general principles, the wife is admitted as a compe- 
 tent witness against the husband, upon the ground of the necessity of the case. 
 2 Steph. Com. 297 ; 1 BLackst. Com. 443. 
 
 2 See the case of Wood vs. Warden, 20 0. E. 518. 
 
CHAP. XIV.] , DOMESTIC RELATIONS. 339 
 
 part are considered void,' unless on the account that justice demands 
 them, as otherwise there would be a fraud or gross injustice. 
 
 § 11. The general rule is, that the husband becomes entitled, upon the 
 marriage, to all the goods and chattels of the wife, and the rents and 
 profits of her lands ; and becomes liable to pay her debts, and to per- 
 form her contracts. He is also, at her death, in case he survives her, 
 entitled to enjoy her real property, either as survivor as to chattels real, 
 or as tenant by the curtesy as to the freehold. This has been in some 
 measure modified by our statutes. By the common law, the interest 
 that the husband might have, and permitted to exercise in the property 
 of his wife, depended on the kind of property she had — 1st, in real prop- 
 erty, and whether it be freehold estate or chattels real ; 2d, In personal 
 property, and whether it be in possession or choses in action. As to 
 the freehold estate, he has the right to recover possession of it, and 
 enjoy the rents and profits during her life, and to claim, by the curtesy, 
 if he survive her. Of the chattels real, he may enjoy them, assign or 
 dispose of them absolutely as he pleases ; but in case he does not con- 
 vert them as his own in his lifetime, they survive to his wife. If he 
 creates a charge on them, without altering the estate, the charge be- 
 comes void at his death. If he survive the wife, such property becomes 
 absolutely his by survivorship, iu case he had possession, and thereby 
 had a joint ownership with her. 
 
 § 12. As to personal property which the wife had in possession at the 
 time of the marriage, in her own right, and not in auter droits it 
 vests immediately and absolutely in him, and he may dispose of it 
 as he pleases, and on his death it goes to his personal representative 
 as the assets of his estate. As to choses in action, he has the right to 
 sue for and recover all her claims, or release and compromise the sanve 
 as he pleases, and what he by these means reduces to his possession 
 becomes absolutely his f but where he does not reduce them to his pos- 
 session, or where he recovers judgment in their joint names, not satis- 
 fied, and she survives, such choses in action and judgments survive to 
 her, and are absolutely hers again.* In case he survives her, the choses 
 in action not reduced to possession, or disposed of, will go to her estate 
 
 1 1 Broom's Max. 621. 
 
 * As trustee or administratrix, etc., and does not extend to her wearing appa- 
 rel, etc., termed her paraphernalia. But so liherally is the subject treated here, 
 that It is never called in question. 2 Bl. Com. 436 ; 2 Stephens's Com. 302. 
 
 » Where the husband and wife have joined in the conveyance of the land of the 
 wife, and he receives the consideration, unless there be an arrangement to the 
 contrary, that becomes his also. If laid out in other lands, and the title in his 
 name, it also is his property. Eansdale vs. Oraighill, 9 O. R. 197 ; Welden m. 
 Welden, 7 0. S. R. 30. 
 
 * Curry m. Falkinson, 14 O. E. 100; Dixon va. Dixon, 18 0. R. 113. 
 
340 PRIVATE LAW. [book ii. 
 
 and become assets in the hands of her representatives ; and upon the 
 settlement of her estate the distributive share will go to her next of 
 kin ; and, according to the English law, would go to the husband as 
 next of kin. 
 
 § 13. The laws of Ohio, by statutes, have materially modified the 
 common law in respect to the rights of husband and wife, as to prop- 
 erty, and have made the most ample provisions for her protection. 
 First. All conveyances or incumbrances of the husband's interests in 
 the real estate of the wife, which belonged to her at the time of the 
 marriage, or shall come to her by devise, gift, or inheritance, or shall 
 be purchased with her separate property during coverture, and held in 
 her own name or in a trustee, shall be void during the life of the wife 
 and the heirs of her body, unless executed by her, and acknowledged 
 as other deeds of husband and wife are required to be by the laws of 
 the State. And it is further declared that the interest of the husband 
 in Such real estate of the wife shall not be liable to be taken by any 
 process for the payment of his debts during the life of the wife or the 
 heirs of her body.^ 
 
 § 14. It is further provided, that no interest of the husband in any 
 choses in action,' legacy, or bequest of his wife, shall be liable to be 
 taken by any process for the payment of his debts, unless such husband 
 shall have reduced the same to his possession, so as to have become his 
 own property in his marital rights. All articles of furniture and house- 
 hold goods which the wife brought with her at her marriage, or shall 
 come to her after marriage, by bequest or gift, or have been purchased 
 with her separate property, shall be exempt from liability for the debts 
 of the husband during the life of the wife and that of any of the heirs 
 of her body.' 
 
 §15. Secondly. The law not only thus protects the wife during their 
 
 1 Act of Feb. 28, 1846, 1 S. & C. E. Stat. 693 a, and see n. (c.) next section. 
 
 2 The choses in action of the wife may be reduced to possession by the husband 
 during coverture — 1st, by obtaining payment ; 2d, by a judgment in his own 
 name; 3d, by an assignment in good faith ; 4th, by a compromise in his own 
 name. Dixon, adm. vs. Dixon, 18 0. R. 113. 
 
 3 See the statutes of April 3, 1861, and March 23, 1866, S. & S. Kev. Stat. 
 389-391. These statutes enable the wife to hold and manage, as her separate 
 property, under her sole control, until reduced to the possession of the husband, 
 with her consent, her property, both real and personal, which was hers at the 
 time of marriage, or which came to her since by gift, inheritance, or devise, or 
 purchased with her separate means ; and in relation to such property enabled her 
 to contract as a feme sole, and when necessary on account of the misconduct of 
 the husband, may be authorized to sue and be sued as such. It also protects 
 such property, consisting of furniture or household goods, from levy to satisfy 
 the debts of the husband, even when such property has been reduced to the con- 
 trol and possession of the husband. 
 
CHAP. XIV.] DOMESTIC RELATIONS. 341 
 
 joint lives, but at the death of the husband secures to the wife, and chil- 
 dren under fifteen years, a liberal allovFance out of the estate, and a 
 year's support even against creditors ; and upon the settlement of the 
 personal estate, after paying debts, the residue is distributed to the wife 
 and children, or their heirs, by giving to the wife one-half of the first 
 four hundred dollars, and one-third of the residue. And where- there 
 are no children to represent them, then by our law the husband and 
 wife are made heirs and next of kin to each other, and take the whole 
 estate where the deceased died intestate. 
 
 § 16. Thirdly. Not only is the wife thus protected by our laws in the 
 disposition of the property which was hers, but they give to her im- 
 portant rights over the property of the husband in which she had no 
 claims previous to the marriage. (1) She has the recognized right of 
 dower as known at common law, but greatly extended by our statute, 
 so as to include' all real estate of the husband at his decease, held in fee- 
 simple, in remainder, or reversion ; and in the like manner be endowed 
 of one-third part of all the right, title, or interest the husband had at 
 his decease in any lands and tenements held by any evidence of claim; 
 and shall remain in the mansion-house of her husband, free of charge, 
 for one year after his dg-ath, if her dower be not sooner assigned her. 
 (2) Under the law in relation to executions against the husband, the 
 husband, and especially the wife, is entitled to hold a large amount of 
 specific personal property free from the levy by the execution, and also 
 a homestead not to exceed five hundred dollars in value. And if the 
 husband attempts to dispose of such property so exempt from execution 
 without her consent, the wife may recover it by action in her own 
 name against any one who may have been the purchaser even for value 
 and without notice. She may also proceed in equity for an injunction 
 to enforce her enjoyment of such property. Such are the liberal provi- 
 sions made by the laws of Ohio for the protection of the interest of 
 married women. 
 
 § 17. The husband, by the marriage, becomes liable for the debts of 
 his wife, yet such liability could only be enforced during coverture by 
 a joint action against both. After . the death of either no such joint 
 action could be brought, and therefore the property thus acquired by 
 the marital rights, however large in amount, after the death of the wife 
 would be the property of the husband ; and after his death, would belong 
 to his estate, and the creditors of the wife would have no means of en- 
 forcing their claim against the property thus acquired by the husband. 
 But if a judgment was recovered in due time by a joint action against 
 both, it might be enforced against him or his estate, or against either 
 surviving, until satisfied. This is frequently referred to as an instance of 
 
 1 Stat. Jan. 28, 1823 : 1 S. and C. R. Stat. 516. 
 
342 PRIVA TE LA W. [book ii. 
 
 the imperfection and injustice of the common law.' Daring the cover- 
 ture he is liable for her debts contracted before marriage, whether he 
 received by her any property or not. The amount of the property does 
 not diminish or increase his liability ; but he is only liable during the 
 coverture. 
 
 § 18. By the marriage, the existence of the wife becomes so identified 
 with the husband that she cannot be sued alone for her previous debts ; 
 and the husband being necessarily joined with her in the action, when 
 a judgment is so recovered, it must be a joint judgment against both, 
 and as a consequence it may thereafter be collected from his property, 
 though she does not survive the recovery ; and in this manner he may 
 become liable to pay her debts contracted before marriage even after 
 her death. But after her death suit cannot be brought against the 
 husband ; the right of action, however, survives against the wife, and a 
 judgment against her can only be satisfied out of her individual property. 
 
 § 19. The husband is not liable for the contracts of the wife after 
 marriage ; and, as a general principle, her contracts are void, unless 
 they are contracted by his authority.' But as he is liable by the mar- 
 riage for the support of his wife and family, ficb articles as may be fur- 
 nished, or contracts made by her, for necessari'&s suitable to their estate 
 and position in society, he will be liable for, and in such case the law 
 will imply his authority and assumption to pay. To this extent, at least, 
 he is liable, if he turns s.\\&y his wife without a justifiable cause (as 
 adultery), and if they live together, his authority and consent will be 
 presumed, unless the wife goes beyond what is reasonable and prudent, 
 then the tradesman trusts her at his peril, and the husband is not bound, 
 but by his as.sent either expressed or implied.* If the wife elopes from 
 the husband and lives with another man in adulter}', the husband is not 
 bound for her support ; nor is he when she leaves him without cause, 
 so long as she remains absent from him. Adultery will excuse him 
 from obligation to support her, even if she had excuse for leaving him 
 on account of cruel treatment* 
 
 § 20. The husband is liable for the torts and frauds of the wife, com- 
 mitted during coverture, and the action for such causes must be a joint 
 action against both. But if the acts complained of were committed 
 by the wife in his company, or by his orders,^ he alone is liable, for the 
 
 1 Reeve's Domestic Kelations, 50 (ed. 1862). 
 
 ' It is the policy of the law to regard the contracts of a married woman abso- 
 lutely void, except those executed in the prescribed form. Worthington vs. 
 Young, 6 0. K. 313 ; see also, 10 O. E. 85 ; Hall vs. West, 8 O. E. 22G ; Carr vs. 
 •Williams, 10 O. E. 305 ; and 11 O. S. E. 644 ; Miller vs. Wine, 13 0. S. E.5J5. 
 
 3 2 Kent's Com. 126. 
 
 * Howard vs. Whetstone Tp., 10 O. E. 365. 
 
 5 A wife, by the authority of the husband, may act as his agent or attorney in 
 any transaction, for then her acts are his by his own assent. 
 
CHAP. XIV.] DOMESTIC RELATIONS. 343 
 
 reason that the law will presume, from his control over her, and his 
 identity with her, that he alone is culpable, and the responsible person. 
 
 § 21. 3. How the marriage relation may he varied and annulled. 
 The various principles of the law of husband and wife may be modi- 
 fied by arrangements, or an agreement made between the parties 
 themselves, or by the interference of a court of equity in protecting the 
 rights of married women. By the agreement or arrangement of the 
 parties, this may be effected in a number of ways, as — 1st. By jointure,' 
 which is an ante-nuptial agreement in writing, duly executed between 
 the parties in contemplation of marriage, by which an estate in lands 
 and tenements is conveyed and settled upon the woman, to be enjoyed 
 after the death of the husband, in lieu and release of dower. Such 
 agreement and conveyance might contain other stipulations between 
 the parties as to their several property, besides the release of dower, 
 which would be binding upon the parties, and in case they were just 
 and fair might be enforced in equity. Our statute contains a number 
 of provisions in relation to jointure, directing how it shall be executed, 
 and to protect it from fraud and undue influence in the execution, and, 
 when tinctured with wrong, to declare it to be no bar to the dower. 
 
 § 23. 2d. By an ante-nuptial agreement between the parties (which 
 should be in writing, and properly executed), by which they stipulate as 
 to the rights of either party in relation to the property and interest of 
 each after marriage, such agreements, besides stipulations as to the 
 division of property upon the death of either, sometimes stipulate as to 
 separate property and spending of money for the wife, and provisions 
 for the family and children. And 3d. By what is usually called a mar- 
 riage settlement, which is a contract very much the same as the last- 
 named agreement, and may be made before or after marriage. When 
 it is made before marriage, it is called an ante-nuptial, and when after 
 marriage, post-nuptial agreement or settlement. The two need not differ 
 in the form or execution only with this exception : that in any such agree- 
 ment, executed before marriage, there is not the same necessity for trus- 
 tees as there is in such agreement between husband and wife after 
 marriage ; and before marriage, it b^ing in consideration of marriage, 
 there is a sufficient consideration for the transaction even against credi- 
 tors. But where it is a post-nuptial agreement, the relation between 
 the parties is a sufficient consideration as to themselves, but as to credi- 
 tors it might be otherwise. After marriage, the contract between hus- 
 band and wife being void, in strict law, there is a necessity that it 
 should be made through the medium of a trustee ; yet, a fair arrange- 
 ment of the kind, made between husband and wife, especially if there 
 is any new consideration inducing the husband thereto, and there being 
 
 1 Stilley et al. vs. Folger et al., 14 0. E. 610. 
 
344 PRIVATE LAW. [bookii. 
 
 no creditors in the way, though void at law for the want of the aid of 
 a trustee between the husband and wife, will still be sustained in equity, 
 and enforced according to the agreement of the parties. 
 
 § 23. Such post-nuptial agreement may not only be an aiTangement 
 as to property, but may contain stipulations for support and separation, 
 which are then usually denominated articles of separation, and usually 
 contain stipulation for separation and maintenance of the wife and chil- 
 dren. A contract of this kind, though very much like the marriage set- 
 tlement last treated of, should be drawn up with greater care to meet 
 the exigencies of the case, and greater necessity for a proper motive as 
 to consideration, and for a trustee.' It being after the marriage, the 
 marriage being a past fact, at law it is generally considered as volun- 
 tary, and may be questioned by creditors, and is not valid without the 
 medium or aid of a trustee. But even where wanting in these respects 
 before a court of law, still, if such agreement be fairly made, upon a good 
 and proper consideration, and providing for a reasonable support for 
 the wife and famUy dependent upon the husband, and having nothing 
 in them cpntrai-y to good morals or public policy, as to the laws of mar- 
 riage, they will be enforced in equity, and informality in their execution 
 supplied. 
 
 § 24. The marriage itself can only bo dissolved by the death of one of 
 the parties,^ or by divorce. Divorces in this State are wholly regulated 
 by the statute and proceedings in the civil courts. No ecclesiastical 
 courts have any authority over them. The law provides for proceedings 
 in court, in proper cases for divorce and alimony, or either. The party 
 aggrieved is authorized to file a petition in court, stating the case, and 
 praying the proper relief, which may be for a, divorce, or alimony, or 
 both. The causes of complaint, as authorized by the statute, are : (1) a 
 former wife or husband living at the time of their marriage ; (2) willful 
 absence for three years ; (3) adultery ; ^4) impotency ; (5) extreme 
 cruelty; (6) fraudulent contract; (1) gross neglect of duty ; (8) habitual 
 drunkenness for three years; (9) conviction and imprisonment in the 
 penitentiary; and (10) where the party complained of has procured a 
 divorce in another State. Upon^ filing the petition alleging either of 
 these causes and the proper prayer for relief, process is issued summon- 
 ing the opposite party to answer the charge, and in case the defendant 
 
 ' Where the husband has used the separate property of the wife, it is a good 
 consideration for a conveyance for the use of the wife, where there is no evidence 
 of its being done to defeat creditors. Hill vs. West, 8 0. R. 222. See also 
 Huber vs. Huber, 10 0. E. 371; Lewis vs. Baldwin, 11 O. E. 3-32; StiUcy vs. 
 Folger, 14 0. E. 010 ; Wood vs. Warden, 20 O. E. 518. 
 
 2 As to the rights of the wife upon the death of the husband, see Administra- 
 tion, ch. viii. I 23-25. As to the rights of children, see post, Parent and Child, 
 ch xiv. i 28-36. 
 
CHAP. XIV.] DOMESTIC BELATIONS. 345 
 
 is a non-resident of the State, he is made party by publication. The 
 defendant is called on to answer, a;nd iu due time the case comes on to 
 a hearing before the court. If, on trial, it appears from competent evi- 
 dence that the alleged cause is true, the court renders a decree for the 
 divorce — makes proper provision as alimony for the wife, according to 
 her merits and circumstances, for the support of herself and children, as 
 the circumstances of the case may require. 
 
 § 25. According to our laws,' the court renders no decree for a divorce 
 a mensa et thoro; but if the parties are at all divorced, it is a vinculo 
 matrimonii; and both parties are absolved from the obligation of the 
 marriage, and at liberty to contract marriage again. The wife is authorized 
 to petition on similar grounds for alimony alone, and the court may, upon 
 a proper case made, decree in favor of the wife such alimony out of the 
 husband's real or personal property as may be just and equitable, to be 
 paid in gross or in installments ; and decree such care and custody of 
 the children as may be deemed advisable ; and may decree in the wife 
 the power to acquire, manage, and dispose of property, and to maintain 
 suits in her own name, free from the control of her husband ; and may 
 decree certain property in trustees for her use and benefit. 
 
 § 26. In these proceedings the law and the court^ hold a strict super- 
 vision over them, to prevent fraud in obtaining a decree for divorce or 
 alimony. The law requires that the plaintiff should actually be a resident 
 of the State at least one year before filing the petition, which shall be filed 
 in the county where the complainant bona fide resides, or in the county 
 where the cause of complaint took place. The court requires the com- 
 plainant to prove the allegation of the petition by evidence that is free 
 from suspicion, and that the complainant show a good character, and 
 that he or she has not been the cause of the difficulty. The following 
 rules have been adopted as to the form and allegations of the petition •? 
 
 1, that the petitioner at the time is an actual resident of the county; 
 
 2, that he or she had a bona fide residence in the State at least one year 
 before the application ; 3, the time and place of marriage, and the name 
 and ages of the children, if any ; 4, a specific brief statement of the cause 
 for the divorce, and if that be adultery, the time and place, and the 
 name of the person with whom, if known, and if unknown, show that 
 excuse for the omission ; and 5, in case alimony is sought for, it should 
 state as nearly as may be the kind and amount of the personal property, 
 and describe the real estate of the defendant. These rules are adopted 
 to prevent a decree to be obtained by fraud and imposition ; and gen- 
 
 1 Statute of March 11, 1853, and 1 S. and C. Eev. 509. 
 
 2 The Court of Com. Pieas has jurisdiction. 
 
 s See Latimer vs. Latimer, 5 0. K. 538 ; Mattox vs. Mattox, 2 O. E. 233 ; Parish 
 vs. Parish, 9 0. S. E. 531 ; Stoutenburg vs. Leyhrand, 13 0. S. E. 228. 
 
346 PRIVATE LAW. [book ii. 
 
 erally the court shows great astuteness in discovering the real character 
 of the case, and deciding according to its true merits. 
 
 § 27. Besides the case where the wife is authorized by the decree of 
 the court to sue and be sued as a feme sole in cases of decrees for ali- 
 mony, our courts have recognized the right to maintain and defend suits 
 in her own name notwithstanding the existence of the marriage. As 
 where a wife is abandoned by her husband, and a separation de facto 
 exist, she living and maintaining herself as a single woman, she may 
 maintain an action at law in her own name, without the joinder of her 
 husband, in regard to her separate property; and is competent to con- 
 tract in respect to necessaries for her support and maintenance, and to 
 sue and be sued as a. feme sole.^ Courts of equity will sometimes per- 
 mit a married woman to prosecute a case in her own name, where her 
 rights arc adverse to those of her husband and where it is necessary for 
 the end of justice.^ But the usual rule is, to prosecute such cases by 
 some next friend either against the husband or others for any separate 
 interest she may have. Whenever a married woman has an interest or 
 right withheld from her either by the husband or any other person, 
 courts will always maintain an action in some manner for her relief; 
 and the cases where she is permitted to sue as a feme sole are con- 
 stantly increasing. 
 
 § 28. II. Parent and child. The next in importance, of the domestic 
 relations, is that of parent and child. This relation results from that of 
 husband and wife ; and the law that governs it is founded on the strongest 
 ties of our nature, and more is left to the force of those natural attach- 
 ments than is found in the positive law. The duties of parents to their 
 children are those of parents to their offspring, — that of protection, sus- 
 tenance, and education ; and that of the child to its parent are reverence, 
 obedience, and gratitude. Some of these duties may be enforced by the 
 law; others are left with an imperfect sanction, and wholly dependent for 
 their enforcement upon the moral sense of the individuals. These duties 
 are discharged by different persons, — the enlightened and the uneducated 
 in society, in different degrees, more dependent upon the development 
 of natural feelings, than upon the conventional or educated sense of 
 parental duties and attachments. The more the people are educated and 
 enlightened, the better these duties will be discharged, whether prima- 
 rily directed by natural impulse or education. 
 
 § 29. Although the law much depends upon the natural sympathy of 
 the parent and child for the discharge of their reciprocal duties, and does 
 not, in every instance,' enforce by positive enactment their proper dis- 
 cbarge ; yet, when neglected to the offense and injury of society, the 
 
 1 Benadiun vs. Pratt, 1 O. S. R. 403 ; "Wagg vs. Gibbons, 5 0. S. E. 580. 
 
 2 Laughory vs. Laughery, 15 0. K. 406. 
 
CHAP. XIV.] DOMESTIG RELATIONS. 347 
 
 law, in most instances, does declare and enforce them. The parent is 
 the natural guardian of the child, and as such is bound to the extent 
 of his abilities to maintain and educate it, during its infancy and mi- 
 nority, and to make for it reasonable provision for Ks future usefulness 
 and happiness. 
 
 § 30. By our laws children are declared to be infants and minors 
 until females arrive at the full age of eighteen years, and males at that 
 of twenty-one. As the parent is bound for the support and maintenance 
 of the child, so he is entitled to be obeyed by the child, and to command 
 and control him. If, during the minority of the child, the parent should 
 palpably neglect his duty, or abandon it, the parent, to the extent of his 
 abilities, would become liable to those who would furnish such necessa- 
 ries as he stood in need of, which he was unable to procure by his own 
 exertion and labor. But what is necessary for the child is left to the 
 discretion of the parent ; and where the infant is under the care and 
 power of the parent, there must be a clear omission of duty, as to neces- 
 saries, before a third person would be warranted in interfering and fur- 
 nishing them, and charging them to the father. This obligation exists 
 upon the parent to support his minor child though it may have property 
 of its own. 
 
 § 31. The father is not liable for the contracts of his son, even for 
 articles suitable and necessary, unless an actual authority be proved, or 
 the circumstances be sufficient to imply one, nor is he for his U)rts, un- 
 less the evidence is sufficient to implicate the father in them. Unless 
 the father be so implicated, the prosecution should be against the son 
 alone, who would be subject to the judgment as any person in h's ma- 
 jority would be, and the father would not be bound to relieve hv^, ex- 
 cept from motives of parental sympathy. 
 
 § 32. Children in relation to their parents may be arranged in three 
 classes. First, legitimate children ; second, illegitimate children ; and 
 third, adopted children. The law governing the relation subsisting!; be- 
 tween the parent and the child, in these several classes, will be treated 
 in this order. A legitimate child (as defined by the common law) is 
 one between whose parents the relation of marriage subsisted at the tJme 
 when he was begotten, or at the time when he was born, or at some in- 
 tervening period: and all persons otherwise circumstanced are, by the 
 laws of England, bastards.^ But by our law legitimate children will 
 include all those whose pa-ents were married at the time they were 
 begotten, or born, or where they are married after the birth of the 
 child, and acknowledged by them as their child. And the issue of mar- 
 riages deemed null in law are also declared legitimate.^ This places 
 the law upon the most liberal basis. 
 
 1 2 Steph. Com. 314 ; 1 Blackst. Com. 446 ; Co. Litt. 7 b. 244, a. 
 
 2 Law of descent and distribution. 
 
348 PRIVATE LAW. [book ii. 
 
 § 33. Though the parents have been legally married, still there are 
 sometimes questions as to the legitimacy of the children. The presump- 
 tion is always in favor of the legitimacy of the children of married pa- 
 rents ; yet, as it regards the ostensible issue of married persons, the 
 law permits it to be brought in question. As if the husband be so far 
 absent that no access to his wife can be presumed, or the access abso- 
 lutely rebutted. The legitimacy may also be contested upon other co- 
 gent evidences, — as proof of the impotency of the husband, or some 
 positive proof to show that there was an entire absence of sexual inter- 
 course within such period as is inconsistent with their being the parents, 
 or of such circumstances as tends to establish, beyond question, the in- 
 ference that no such intercourse in fact took place. In England, divorce 
 in some instances renders the issue illegitimate ; but here, with more 
 humanity and liberality, our law declares that no divorce shall render 
 the children illegitimate. 
 
 § 34. With regard to the rights and duties of parents toward their 
 children, our law furnishes little or no coercive means to enforce them, 
 leaving them almost entirely to the promptings of nature, where nature 
 and duty so forcibly coincide. The means furnished by law, where 
 there are any, are those which are indirect rather than direct. The 
 plain duty of maintaining and educating one's own offspring, when neg- 
 lected by the parent, — a case which manifests so perverse a heart and 
 insensibility as seldom to occur, — would be enforced by the law raising 
 an implied promise, by presumption, from the moral obligation, that the 
 parent would pay for necessaries furnished for his infant and needy child, 
 suitable to the parent's rank and condition. The parent may enforce 
 his right to obedience by moderate correction ; if carried beyond such 
 moderation, he might subject himself to a criminal prosecution for an 
 assault and battery, as in any such case upon a stranger. The parent 
 is the natural guardian of the child, and entitled to its services and earn- 
 ings, and may bind it out to apprenticeship. The earnings of his child 
 he may claim and recover, and apply them to his own use, as his own 
 sense of humanity and justice may dictate. But as to the separate 
 property of the child, he is only permitted to protect it, and not to 
 change ownership, or to convert it to his own use. To control such 
 property of the child, real or personal, the parent should become the 
 actual guardian under the statute, and give security for the faithful dis- 
 charge of his duties as such.' 
 
 § 35. The rights and duties of the child are reciprocal to those of the 
 parent ; wherever there is a right on the one side, there is a correspond- 
 ing duty or obligation on the other. Their relations and reciprocal 
 duties will prevent either party to claim a legal obligation or debt from 
 
 1 See the sovoral heads Gu.ardian, Apprentice, etc. 
 
CHAP. XIV.] DOMESTIC BELATIONS. 849 
 
 the other, as the law will not raise an implied promise between them as 
 it will between strangers, even after the child arrives at its majority, 
 unless there be an express promise between them, as where a son (even 
 after he comes of age) performs extraordinary service for the parent, or 
 the parent has furnished board or other necessaries, neither can recover 
 upon any implied promise as between strangers. It will be presumed 
 to be on account of the reciprocal consideration of the duties of father 
 and son, unless there be an express promise to make it otherwise. 
 
 § 36. The law gives the parent a great degree of discretion as to what 
 benefits he may confer or withhold from his child, who has no absolute 
 claim upon his property, as the wife has for dower. The father may 
 therefore dispose of his whole property by will or otherwise, without 
 providing a portion for his child, if that was his intention. And ordi- 
 narily, it is only in cases of want, arising from infancy or disease, where 
 the child by his own efforts is unable to provide for itself, that the law 
 implies an obligation and compels payment for even necessaries, for it 
 will not compel a father to provide for an idle or disobedient child who 
 might be able to support itself. It is not the policy of the law to en- 
 courage extravagance, idleness, or disobedience of the child whose 
 claims, beyond actual necessaries, are left to the discretion of the parent, 
 according to the measure of his means and abilities. The law of this 
 State manifests great anxiety for the education of all the youths of the 
 land, and has made the most liberal provision by common schools ; it 
 nevertheless uses no coercive means, but leaves the consequences and 
 responsibilities depen(^ent upon the will of the parents. The care and 
 control that the parent has over his child may be extended beyond his 
 own life, for he may by his will appoint a testamentary guardian for the 
 child until it attains its age of majority. Thus, the law in a great 
 measure leaves the performance of these reciprocal duties between the 
 parent and child to depend on the principles of natural justice and their 
 consequent retribution. 
 
 § 3Y. Second. Illegitimate children or bastards are fully as much 
 the objects and care of the law as those born of lawful wedlock ; 
 and perhaps there is in relation to them more positive law. By our 
 law the mother stands in relation to her bastard child in the same 
 position of duties and obligations as that of a legitimate child. They 
 are bound by the same laws. Such child is here no such outcast, in- 
 nocent as he may be, as he is made to be by the common law, " for 
 there he can neither be heir to any one, nor have an heii', the issue of 
 his own body excepted — because, being nullius filius, he has no ancestor 
 from whom inheritable blood can be derived, and no collateral rela- 
 tions."' Here, with greater degree of justice to the innocent objects of 
 
 1 1 Blackst. Com. 459 ; 2 Steph. Com. 329. 
 
350 PRIVATE LAW. [book ii. 
 
 illicit connection, the law provides that bastards shall be capable of in- 
 heriting, or transmitting inheritance, on the part of the mother, in like 
 manner as if born in lawful wedlock; and if the mother be dead, the 
 estate of the bastard shall descend to the relatives on the part of the 
 mother as if the intestate had been legitimate. The subsequent mar- 
 riage of the parents of a bastard, and acknowledgment of it by the father, 
 renders such child legitimate.' 
 
 § 38. But it is on the part of the father that the great distinction exists 
 between the legitimate and the illegitimate child. With regard to him, 
 the bastard has no inheritable blood, and the principles of the common 
 law are in a measure true. By our law the bastard is left without any 
 legitimate claim upon his father. The only relief is that given by the 
 statute to the mother or the township for a temporary support of the 
 child. It provides that an unmarried woman who is pregnant, or de- 
 livered of a bastard child, may make complaint, on oath, before a justice 
 of the peace, upon which a warrant may issue for the imputed father. 
 When he is brought to a trial, if he make no compromise'' of the com- 
 plaint, the examination of the mother and the proceedings, together with 
 the recognizance of the accused, is sent up to court for further trial. If 
 on that trial he is found guilty, he may be sentenced to pay a limited 
 amount for a temporary period for support of the child. From this 
 judgment of the court he may be relieved by the insolvent law in the 
 same manner as other insolvents. 
 
 § 39. Third. Children by adoption. The statutes of Ohio provide 
 that persons, by certain proceedings in court, may adopt a child as their 
 own, or constitute it an heir, confer upon it their name, and make it to 
 all intents and purposes their child and heir at law. To accomplish this, 
 the statute authorizes any person of proper mental capacity to appear 
 before the probate judge of his county, and by a written declaration, at- 
 tested by two disinterested persons of his acquaintance, designating any 
 person who shall stand as his or her heir at law; thereupon the judge, 
 if satisfied that all is right, enters the fact upon his journal, and makes 
 a complete record thereof; and thenceforth such person so designated 
 becomes the heir of the declarant, as though a child born in lawful 
 wedlock.' 
 
 § 40. Another act provides that any inhabitant of this State not mar- 
 ried, or any husband and wife jointly, may petition the probate court of 
 their county for leave to adopt a minor child, not theirs by birth, and 
 
 1 See OUT Statute of Descent nnd Distribution, March 14, 1853. JHcld, that 
 illegitimacy is no defense to an action by a son for injury to a mother where death 
 ensued. Muhl vs. Michigan S. R. E. Co. 10 0. S. R. 272. 
 
 2 The settlement before the justice must substantially conform to the statute or 
 it is no defense to another action, 8 0. S. R. 267 ; 4 O. S. K. 668. 
 
 s Statute of April 29, 1851. 
 
CHAP. XIV.] DOMESTIC RELATIONS. 351 
 
 for the change of its name. "With the petition there must be the written 
 consent of the child, if of the age of fourteen, and of each of its parents, 
 if living and known; and in case they are dead or untnown, then of the 
 guardian, or some suitable next friend. If the petitioners are husband 
 and wife, the judge must refuse the leave, unless, upon a separate exami- 
 nation of the wife, he is satisfied that the wife of her free will desires 
 such adoption. Thereupon the judge, being satisfied of the ability of 
 the petitioners, and of the fitness and propriety of such adoption, the 
 court shall order that henceforth such child, to all legal intents and pur- 
 poses, is the child of the petitioner ; and the name of the child is thereby 
 changed.^ 
 
 §41. III. Guardian and ward. Another domestic relation is that of 
 guardian and ward. In this State there are guardians only for two 
 classes of persons: 1, of infants; and 2, of persons incapable of con- 
 ducting their own affairs. All countries have their peculiar laws and 
 regulations in regard to guardian and ward ; and under the common 
 law there were classes of guardians and wards, and also a great variety 
 of distinctions as to the several ages at which the ward would be com- 
 petent to perform certain acts, or be more or less freed from the restraint 
 of the guardianship. In this State the relation of guardian and ward 
 is almost entirely governed and regulated by the statutes upon the sub- 
 ject, which have much simplified the common law, but which have so 
 enlarged the regulations and minutia of the duties and responsibilities 
 that it is impossible to generalize them so completely as to supersede a 
 general reference to those statutes for such minutia. 
 
 § 42. 1. OuardiansMp of infants. lufancy or minority has refer- 
 ence to that period of life which precedes the attainment of the age 
 which the law has fixed as of full age and capacity to transact business 
 for one's self, and to be suijnris. This period in Ohio is fixed, for females 
 at the age of eighteen years, and for males at that of twenty-one. As 
 to guardianship in this State, all the distinctions known in the common 
 law as to the several ages at which a minor was competent to transact 
 certain actions, have been abolished or become obsolete ; and the only 
 ones here recognized as periods in their ages, previous to the age of 
 their majority, are those of twelve in females, and fourteen in males, 
 when they are respectively entitled to choose and select their guardians, 
 who supersede those previously appointed ; and the several ages of four- 
 teen in females, and eighteen in males, when they are each capable of 
 contracting marriage by the consent of their parents or guardians.' 
 Marriage previous to those respective ages is voidable, and may be 
 
 1 Statute of March 29, 1859. 
 
 2 Bj' a recent statute, males at eighteen and females at sixteen years of age, not 
 nearer of kin than second cousins, may contract marriage. See stat. May 5, 1869. 
 
852 PBIVATE LAW. [book ii. 
 
 annulled, unless confirmed by either party when such minor arrives at 
 full age ; and even in cases of marriages after those respective ages of 
 fourteen and eighteen, without the consent of parents or guardians, the 
 persons officiating in them are liable to prosecution. But as those ages 
 are recognized in the law as the respective ages at which they arrive at 
 their ages of maturity and of consent, such marriages are binding and 
 valid. 
 
 § 43. In the computation of time the law generally allows no fraction 
 of-a day, and it is said that if a person was born on the first day of Jan- 
 uary, he is of age to do any legal business on the morning of the last 
 day of December, though he may not have lived twenty-one years by 
 nearly forty-eight hours.^ Subject to this computation, the minor is 
 surrounded with certain rights and protections, and certain restrictions 
 and disabilities, in regard to suing and being sued, contracting and 
 being contracted with, saving in the exceptions of the statute of limita- 
 tions, etc., all of which will be found in their several proper places. 
 Most of these restrictions are for the benefit of the minor ; and most acts 
 that would be binding on others, as to a minor would be either void or 
 voidable. 
 
 § 44. Guardianship by nature. Of the various kind of guardian- 
 ship l£nown to the common law none are now recognized in Ohio, having 
 been superseded by the statute regulating guardianship, and rendered 
 obsolete, except guardian by nature, which still depends for its principles 
 upon the common law, and scarcely noticed in the statute. Guardian by 
 nature is the father, and on his death, the mother, — and it is that guar- 
 dianship that the parent has over his legitimate children, conferred upon 
 him by the common law, without any statutory support. It exists during 
 the minority of the child, until it arrives at its full age of majority, 
 which is in females at the age of eighteen years, and in males twenty- 
 one, or until it is superseded by statutory appointment. It is not ap- 
 prehended that here there is any difference between the father and 
 mother in this class of guardians in regard to their rights and duties, 
 except that the father is first acknowledged, and then the mother after 
 his death or in his absence. 
 
 § 45. The duties of a guardian by nature are the same as those of a 
 parent toward his child. His rights are the same to command, con- 
 trol, and to be obeyed. He has the right to the services and earnings of 
 his ward, and bound, as parent, to support and care for him. Such 
 guardian, here, has no right to demand ai)d receive the money or other 
 property of the ward, except those arising from its services ; his receipt 
 would not be considered a discharge for any claims of the ward, as an 
 inheritance or legacy, unless it would be by common consent. A guar- 
 
 'See ante, B. ii. oh. ix. §38. 
 
CHAP. XIV.] DOMESTIC RELATIONS. 353 
 
 dianship, by the statute, in a great measure supersedes this, and the pa^ 
 rent or guardian by nature has a preferable claim for this appointment, 
 and would be entitled. to the custody and care of his ward, unless such 
 guardian by character and temperament is an unfit person to have such 
 custody and guardianship ; and for the purpose of securing to him his 
 rights, he is entitled to a writ of habeas corpus, to enable him to assert 
 his rights, and the court to determine how proper a person he is to have 
 those claims awarded to him. Courts frequently have questions of this 
 kind before them, and though the father is entitled to this guardianship 
 where everything is right, yet the court will exercise a liberal discre- 
 tion, and frequently, on the account of the improper character of the 
 father, will prefer the mother, or make some other appointment of a 
 guardianship under the statute. Formerly it was considered that the 
 father was invariably entitled to the care and custody of his minor child. 
 It is not so now. The mother frequently has the preference where the 
 child is a female, or quite young, and needs its mother's care and atten- 
 tion. In all such cases the court will exercise a liberal discretion, even 
 without the appointment of a regular guardian, and thereby interpose 
 and control the authority and discretion the father usually has in the 
 custody, education, and management of his child. 
 
 § 46. Guardianship by statute. Guardians appointed in pursuance 
 of the provisions of the statute are of two kinds: (1) those dependent 
 upon the testamentary appointment by the parent ; and (2) those ap- 
 pointed by the court. 
 
 (1) Testamentary guardians are those whose appointment depends 
 upon an authority in the statute, which enables a parent, — father or 
 mother, — by his or her last will, to appoint a guardian to a minor 
 child. The person so designated by the will of the father, or in case of 
 his death without such appointment, then of the mother, should not 
 act under such appointment by the will until his appointment is con- 
 firmed by letters of guardianship from the probate court, and he has 
 given the proper bonds and surety as in other cases of guardian. This 
 is required in order to secure, at least, the pecuniary interest of the 
 ward in proper hands. The guardian, when so appointed and qualified, 
 will discharge his duties in the same manner as other guardians, except 
 as he may be properly controlled by the will. The effect of such ap- 
 pointment, by the will, is only to require the court to give him a prefer- 
 ence, and prevent the ward from selecting another at the age of choice, 
 unless there be a serious objection to his appointment. 
 
 § 4t. (2) Guardianship by appointment of the court. The statute 
 provides that the probate court in the several counties shall, when 
 necessary, appoint guardians of minors resident in such county. No 
 distinction is made between infants and minors, which terms include 
 indiscriminately all persons under their majority — females under the 
 
 23 
 
354 PRIVATE LAW. ' [book n. 
 
 age of eighteen years, and males under that of twenty-one. The only 
 distinction recognized in our laws, as to the ages of minors in relation 
 to their guardianship, is, that females under twelve years of age, and 
 males under fourteen, have their guardians appointed at the discretion 
 of the court ; but after that age they have a right to come into court and 
 make choice of their guardian, who will be accordingly appointed when 
 such selection is made as can be approved by the court. Such appoint- 
 ment supersedes the former appointment, and continues until the ma- 
 jority of the ward, unless, for some good cause, his letters and appoint- 
 ment are previously revoked. The guardian must give bond and surety, 
 and take an oath to discharge his duties honestly and faithfully. Such 
 guardian may be appointed either for the person of the ward, or for its 
 property, or for both, at the discretion of the court ; and it is usually for 
 both, unless the court perceive some good reason for the separate guar- 
 dianship, and they are always so considered unless the contrary plainly 
 appears. 
 
 § 48. In making the appointment, the court should be restricted to 
 such persons as are competent, and, as far as may be, qualified. No 
 one should be appointed who is not of age, or who is not of sufficient 
 intelligence to transact the business, or who may be a married woman. 
 The law provides that a female, upon becoming a married woman, shall 
 cease to be a guardian. It is questionable whether any person can 
 be appointed a guardian who is not a resident of the county, for it is 
 provided that in case a guardian should remove from the county where 
 he has been so appointed, he may be removed. No person who has 
 been administrator or executor of an estate, can be appointed guardian 
 of a ward interested in such estate. As to these exceptions, it may be 
 otherwise as to testamentary guardian. Parents, when qualified, should 
 be appointed the guardians of their own children, in preference to any 
 other ; and when such appointment is necessarily made to another, it 
 should not Interfere with the natural guardianship, without a good cause. 
 
 § 49. The general duties of a guardian, whether of the person or 
 property, or both, are those of a prudent parent ; and so far as the 
 estate in his charge will permit, to see that the ward is properly cared 
 for and educated. For these purposes the personal property, and the 
 rents and income from the real property of the ward, are entirely under 
 the control of the guardian, who may, according to the dictates of his 
 own prudence, dispose of such property and income as he may deem 
 best for the interest and welfare of his ward. As to the real property, 
 it is his duty to care for and make it as productive as prudence, with 
 ordinary care and skill, will allow, and for this purpose he may lease or 
 otherwise dispose of the use of the real property during his guardian- 
 ship. 
 
 § 50. But the law does not permit the guardian to sell the real prop- 
 
CHAP. XIV.] DOMESTIC RELATIONS. 355 
 
 erty, except upon a petition to the probate court, showing the necessity 
 of the sale, or that the property was unproductive, or that a better in- 
 vestment could be made, etc. Then, upon a proper notice or process 
 being served upon the wards and others interested, who are made de- 
 fendants ; and if the court, at the hearing of the case, is satisfied of the 
 truth of the allegations of the petition, and that due service had been 
 made on the wards and other defendants, the court may order the 
 premises to be appraised and sold, at not less than two-thirds of its ap- 
 praised value, at public vendue, after its being advertised four consecu- 
 tive weeks. When the order for the sale and the report thereof are 
 made to the court, and it being found that the sale was made in due 
 conformity with law, the court will confirm the sale, and order the 
 guardian to make and execute a deed of conveyance in fee to the pur- 
 chaser, in conformity with the terms of the sale. Such great caution 
 does the law take to protect the right and title of minors in their real 
 property. ' 
 
 § 51. The validity of such sale made of the real estate by the guar- 
 dian, depends upon the probate court having jurisdiction. If the ward 
 was not a resident of the county, or domiciled therein (for the whole 
 jurisdiction depends upon that), or in case there was no proper process 
 served upon the parties defendants, so that their appearance was made, 
 giving them a day in court, the whole proceeding would be void for want 
 of jurisdiction, and said to be coram nan judice. For the jurisdiction 
 of the court would depend at least on those two facts, — the domicile of 
 the ward at the appointment of the guardianship, and the due process 
 on the parties giving them a day in court.^ If the court had original 
 jurisdiction of the case, by the ward having his residence in the county 
 at the time of appointing the guardian, then they have, by the statute, 
 authority to proceed to sell the land of the ward anywhere in the State. 
 The proceedings may also be voidable, and upon that ground subject to 
 be reversed in error, for the want of observing in the proceedings some 
 of the material requisitions of the statute, such as the want of the neces- 
 sary statements in the petition, or the want of the requisite order of sale, 
 or confirmation of the court, etc. But if the court had jurisdiction over 
 the parties and the case, errors which did not render the proceedings 
 void, but only voidable, would not, upon being reversed, it is appre- 
 hended, affect a sale actually perfected, and in the hands of a bona fide 
 purchaser, without notice ; for it is the rule that such purchasers at 
 judicial sales shall not suffer by such intermediate errors of the court, 
 
 1 A recent statute authorizes the probate court to allo-w a private sale by the 
 guardian in case the sale brings not less than the appraised value. Otherwise 
 the proceedings are the same. Laws of 1868. 
 
 2 Maxon vs. Sawyer, 12 O. R. 19-5. 
 
356 PRIVATE LAW. [book ii. 
 
 where it had juvisdiction of the parties and the case. A minor who is 
 a non-resident of the State, having property here, may have a guardian 
 appointed here to care for such property; and in that case such guar- 
 dian or the foreign guardian may petition to sell. 
 
 § 52. It is the duty of the guardian to settle his accounts with the 
 court every two years, and finally when the ward comes of age, or when 
 superseded by another guardian. In doing this he files his account in 
 court, either partial or final, in which he charges himself with all receipts 
 and interest thereon, and then credits himself with all payments right- 
 fully made, accompanied with proper vouchers, numbered in each case. 
 After being examined and approved by the court, it is ordered to be 
 advertised, and set for hearing at some future time (about four weeks), 
 which gives an opportunity to every one interested to take exceptions 
 at the hearing, which is there finally settled, and the balance ascertained 
 and ordered to be properly invested for the benefit of the ward. The 
 guardian is allowed reasonable compensation for his services, and he is 
 not allowed to make any profit for himself out of his ward's estate or 
 funds. The law holds the guardian to a strict rule of accountability 
 and compliance with his duties. If a loss is sustained for want of due, 
 or at least ordinary care, he makes himself responsible. The object of 
 the appointment of a guardian is to keep and manage his ward's funds 
 safely, and render them productive. If he fails to invest them produc- 
 tively when he could do so, he is chargeable with the interest.' Over 
 all this accountability, courts of equity hold guardians to a strict respon- 
 sibility for whatever has been, or might be, made out of the funds in 
 his hands, in such fiduciary capacity. 
 
 § 53. 2. Guardianship of persons incapable of conducting their own 
 affairs. There is another and last class of persons for whom guardians 
 may be appointed, and who are governed by the same rules and regula- 
 tions, when appointed, as other statutory guardians. These are persons 
 who, from some intellectual defects, are incapable of managing their 
 own affairs. These may be in this condition, — 1, because he is deaf 
 and dumb; or 2, because he is an idiot, who is one that has had no un- 
 derstanding from his nativity, and therefore is by law presumed never 
 likely to attain any ; or 3, because he is a lunatic or non compos mentis, 
 who is one that has had understanding, but who, by disease or some 
 other cause, has lost the use of his reason, and is a person incapable of 
 conducting his own affairs. Among the last class may be enumerated 
 persons who have become, in consequence of old age, of unsound mind 
 and memory, and are incapable of conducting their own affairs. Upon 
 application and proper complaint, the probate court is authorized to hold 
 an inquest for the purpose of determining whether the particular patient is 
 
 ' Armstrong vs. Miller, 6 0. K. 118-124. 
 
CHAP. XIV.] DOMESTIC RELATIONS. 857 
 
 in the condition of one of tliese classes or not. When the condition is es- 
 tablished by inquest in the case, the probate judge can proceed to appoint 
 a guardian for such incapable person, whose authority will continue 
 while his appointment may last, or until the incapacity of the ward is 
 removed, or determined by the death of his ward. The duties of such 
 guardian are regulated by almost precisely the same rules of proceeding 
 as in cases of minors. 
 
 § 54. Foreign minors are permitted to have the benefit of the statute, 
 in case they have lands in this State ;' and in case they have guardians 
 in another State, such guardians are authorized to apply in a certain man- 
 ner to the probate court of any county in this State where the property 
 may be situate, for an order to sell real estate, or transact other business 
 as guardians in this State. Or such court, upon such application, may 
 appoint a guardian for such non-resident ward, for the purpose of taking 
 care of such property, or to sell the same as in other cases of guardians. 
 Such guardian here must act as an auxiliary to the guardian of the 
 domicile of the ward ; and after settling his accounts with the probate 
 court here, should account and pay over to the guardian there. 
 
 § 65. It is the peculiar duty and jurisdiction of the judge of the pro- 
 bate court to watch over the interest of minors, and to compel guardians 
 to perform their duties. For this purpose the statute gives the judge 
 ample powers to issue citation against the party, and enforce every 
 order necessary to compel the guardian to comply with and perform 
 his duties that may be necessary or proper to preserve the estate of the 
 minor ; and at any time remove such guardian, upon thirty days' notice, 
 for neglect of duty, incompetency, etc. The laws in relation to the 
 jurisdiction of the probate court, and the duties of guardians, manifest 
 the most vigilant care for the interest of the wards, and for their relief 
 upon any neglect of duty.^ 
 
 § 56. IV. Master and servant. Happily for this country, servitude 
 such as formerly existed everywhere in the Eastern world never existed 
 in the United States, except in the shape of African or negro slaver3^ 
 The civil war of the rebellion of 1861 put an end even to negro slavery, 
 so that now slavery in no shape exists anywhere within the United 
 States. What was formerly the boast of England (after conferring 
 slavery upon us as an iuheritance from them), is truly ours now : " That 
 slavery, or the dominion of one man over the fortune and liberties of 
 another, does not and cannot subsist here.'" The only kind of service 
 that now exists here is that of a voluntary and temporary service that 
 may arise out of a contract between the parties. 
 
 J Stat. April 12, 1858, ? 32; Matthew's Guide, x. 16, 17. 
 
 2 Stat. April 12, 1858, § 14, 17, 20, 33. 
 
 3 2 Stephens's Com. 270 ; Eeeve's Dom. Eel. 509 ; 2 Kent's Com. 209-214. 
 
358 PRIVATE LAW. [book ii. 
 
 § 57. A servant is he who, from some contract or relation subsisting 
 between the parties, is bound to render certain service for another ; and 
 he who has the right to command or direct it is the master. We there- 
 fore say here that the public officers are the servants of the people, and 
 the people their masters. But now we have only to deal with the sub- 
 ject in its private and domestic relation. In this respect the elementary 
 books enumerate three classes of domestic servants, dependent upon the 
 kind of service they are to render : 1st, menial servants ; 2d, laborers ; 
 and 3d, apprentices. 
 
 § 58. 1. Menial servants are so called from being intra mcenia, or 
 domestics. The contract between them and their employers arises from 
 hiring, at fixed wages, and generally for an uncertain time. They are 
 generally to be discharged upon some reasonable notice, but this, as 
 well as the manner of service, will depend, in a great measure, upon 
 the custom of the particular place. With the exception that the kind 
 and manner of service depend, in a great measure, upon the kind of 
 service to be performed, there is very little or no difference in the law 
 regulating this kind of service from that of other labor. 
 
 § 59. 2. Laborers. Laborers are servants employed in husbandry or 
 in manufacturing, not living intra mcenia} These are sometimes en- 
 gaged by the day or week, and sometimes by the month or the year. If 
 no special agreement has been made as to time or wages between the 
 parties, much will depend upon the usual terms and custom of the 
 place. There are no uniform usages in these respects throughout the 
 country. But like all other engagements between parties, the law, 
 where there is no special agreement, will imply on the part of the ser- 
 vant a promise to render faithful services, and on the part of the master 
 to pay the usual wages, and treat him according to custom. Where 
 there was no special agreement as to the time' when the service should 
 end, either party may determine the service at pleasure; but then some 
 reasonable notice should be given to the opposite party of that inten- 
 tion. The length of such notice would depend upon the custom of the 
 country — in England it is a month, or the payment of a month's wages. 
 But any unreasonable misconduct on the part of either might justify 
 the other in terminating the service ; as gross injustice or oppression on 
 the part of the master, or the want of faithfulness or industry on tho 
 part of the servant. These services require mutual good faith, and an 
 ordinary degree of skill and diligence in the performance of the engage- 
 ment. 
 
 § 60. 3. Apprentices. The statutes in a great measure control the 
 law in relation to apprentices. It provides that any male person within 
 the age of twenty-one, or female within the age of eighteen years, may 
 
 1 See ante, B. i. ch. x. J 22-29. 
 
CHAP. XIV.] DOMESTIC RELATIONS. 359 
 
 be bound until they arrive at those ages respectively, or for any shorter 
 period, to serve as a clerk, apprentice, or servant, in the manner therein 
 stated. The trustees of townships may bind out any orphan or child of 
 any person who shall not provide for it. The binding shall be by inden- 
 ture or covenant for service, and shall be signed and sealed by the 
 father, or in ease of his inability, by the mother or guardian, or the 
 trustees of the one part, and by the master or mistress of the other part. 
 It provides that the indentures shall contain numerous stipulations as 
 to the age and service, and also as to the support, clothing, and educa- 
 tion of the apprentice ; and also that a certain amount of other property 
 shall be furnished the apprentice at the end of his term of service. The 
 master is bound to have the indenture recorded within three months, 
 and in default the apprentice shall be discharged and the master or 
 mistress remain liable for the payment of all property stipulated to be 
 paid. 
 
 § 61. Indentures not complying with the statute would probably be 
 void as to the apprentice. There are also numerous provisions as to the 
 respective duties of the parents, master, and apprentice, for the purpose 
 of insuring the welfare of the apprentice ; and in case there are any 
 grounds of complaint on the part of any one, it gives ample jurisdic- 
 tion to a justice of the peace, with the aid of five disinterested freeholders, 
 to give protection and ample redress. 
 
 § 62. The statutes in relation to apprentices are only applicable to 
 minors, and do not reach the cases of persons of full age entering into 
 contracts to bind themselves. The usual common law mode of execu- 
 ting indentures of apprentice was for the apprentice, the parent or 
 guardian, and the master, to unite in the execution ; but here the statute 
 provides that the indenture shall be executed by the parent, guardian, 
 or trustees of the one part, and the master of the other. Such a trans- 
 action, even at common law, by which a parent bound his child, would 
 be valid. But here, where the indentures do not substantially conform 
 to the statute in an essential matter, they would be void as to the minor, 
 and he would be free from their restraint. These indentures are sub- 
 ject to the following rules : 1. The death of the master discharges the 
 apprentice, on the principle that the contract was strictly personal and 
 fiduciary, and therefore cannot be assigned or transferred to another by 
 the master or his personal representative. 2. The master is substituted 
 in the place of the parent, and is entitled to be obeyed as such. He is 
 entitled to the labor and earnings of the apprentice as the parent would 
 be, and is not liable for wages or pay, except as stipulated in the inden- 
 ture. 3. The powers of the indenture under the statute are derived 
 from that law, and can only be enforced under it where the law is in oper- 
 ation. Out of that jurisdiction they cease, unless there be an express 
 provision for the removal, or it is required by the nature of the service. 
 
360 PRIVATE LAW. [bookii. 
 
 The powers given by the statute to a justice of the peace and a jury, 
 can only be exercised within this State ; but within that jurisdiction 
 ample and salutary powers are given to such magistrate to administer 
 justice between the parties. 
 
 § 63. All masters, corporations, or persons having servants or em- 
 ployees in their service, become liable and responsible for the capacity, 
 negligence, and misfeasance of those by them employed in the execution 
 and course of their employment.' Such persons so employed are the 
 agents of their employers, in and about the business or matter that 
 they are employed to perform, and as the principals of such agents they 
 are responsible that the business they are engaged in shall be per- 
 formed with proper skill, care, and diligence, and in doing so shall not 
 commit injury to others that ordinary care and skill could avoid. But 
 if the servant commit willful injury not necessarily connected with the 
 employment, or naturally arising out of it, the master is not liable,^ but 
 the servant alone is responsible. If a proprietor employ one to do a 
 job on his property, and such employee hires servants or laborers under 
 him to do the job, they are the servants of such employee, and not 
 of the proprietor, who is not responsible for them as such. There is a 
 want of privity between the proprietor and such servant necessary to 
 make him liable, and consequently the rule of respondeat superior did 
 not apply to him. But if the job itself, in its performance, must neces- 
 sarily be a wrong and an injury to another, then the proprietor, in author- 
 izing the job to be done, becomes liable, for it then becomes his act, and 
 the rule respondeat superior applies. 
 
 CHAPTER XY. 
 
 CORPOEATIONS. 
 
 § 1. Having treated of the rights and duties appertaining to natural 
 persons, it is proper that those appertaining to artificial persons, known 
 as Corporations, should be next considered. 
 
 A corporation is an artificial and imaginary being, known only by its 
 name, and acting and performing its appropriate functions by means of 
 the natural persons who constitute its members. Their existence is es- 
 tablished from necessity and convenience of transacting human business. 
 As all personal rights die with the person, and the transferring of rights 
 
 1 Keeve's Dom. Kela. (509, n. 1. , 
 
 2 Foster vs. Essex Bank, 17 Mass. E. 508. See n. 1 to Reeve's Dom. Rela. 514. 
 
CHAP. XT.] CORPORATIONS. 361 
 
 and property in succession from one natural person to another is at- 
 tended witli great and manifest inconvenience, this is obviated by as- 
 suming the existence of an imaginary, artificial being, under a corporate 
 name, thereby insuring a perpetual existence and preservation of its 
 rights and property while the corporation actually exists, without that 
 change which takes place upon the death of each person who may con- 
 stitute one of its members. This artificial person principally exists in 
 its name, and wills and acts as a person by means of its officers, who 
 are controlled by its constituted authority, or the majority of the mem- 
 bers constituting the corporation. 
 
 § 2. Corporations are of various kinds — the State itself may be con- 
 sidered a corporation, and so is a county, a city, or town, and the like, 
 and these may be denominated public corporations, and classed as mu- 
 nicipal or political. Then there are private corporations, as banks, rail- 
 roads, turnpike, or manufacturing companies. These corporations may 
 be either public or private, according to the degree of power granted to 
 them, and the objects and purposes of their creation. They are gen- 
 erally called public when their object is the government of a. portion 
 of the State ; although, in such case, it may involve some private 
 interests. And they are so called when created for public purposes, 
 though not of a political or municipal character. Thus, if the Bank of 
 the TTnited States had been established exclusively for the government, 
 and owned and managed by it, it would have been a public corporation; 
 but as there were other and private owners, who owned and managed 
 it independent of the government, it was a private corporation. 
 
 § 3. These corporations are created by the will and direction of the 
 legislative power, in some shape, and do not exist in this country with- 
 out it. Public corporations exist by some provision of the constitution 
 or legislative act in harmony with it. However convenient to private 
 persons it might be to transact business as a corporation, yet any such 
 attempt, except in accordance with legislative provision, could not only 
 be resisted by private individuals in various ways, but the aid of the 
 government might be invoked for the purpose of resisting the assump- 
 tion by a writ of quo warranto. 
 
 § 4. Corporations, besides being divided into public and private, are 
 said to be divided into several sorts, as 1st, into aggregate and sole. 
 The first exists where many persons have united together into one society, 
 under a legal organization for that purpose, by means of which the im- 
 aginary person is kept in existence under its corporate name by a per- 
 petual succession of members ; such are the corporation of a city, a 
 county, a church, a railroad, a manufactory, and the like. Corporation 
 sole consists of one person only, and his successors, in some particular 
 station, who are incorporated by law in order to give them some legal 
 capacities and advantages, particularly that of perpetuity, which in their 
 
862 PRIVATE LAW. [book ii. 
 
 natural person they could not have had ; as an instance, that of a bishop 
 is cited by Blackstone as existing in England ; but it is not certain that 
 a single instance of a sole corporation exists in this country. 
 
 § 5. Another division of corporations, either sole or aggregate, is into 
 ecclesiastical and lay. The former consists of a corporation where all 
 the members that compose it are entirely spiritual persons. It is not 
 certain that we have, strictly, any such in this country. Lay corpora- 
 tions are of two sorts, civil and eleemosynary. The civil are such as 
 are erected for a variety of temporal purposes ; for the purpose of pro- 
 moting the welfare of the country and the interest of its people. These 
 include every kind of incorporations, from those that form a part of the 
 government, and are sometimes properly denominated political corpora- 
 tions, to those that are only intended to promote the interest of com- 
 merce, manufactures, or other departments of human industry and 
 interests. The eleemosynary sort are such as are constituted for the 
 distribution of the alms or bounty of the founder in accordance with his 
 directions. Of this kind are all hospitals for the maintenance of the 
 poor, sick, and impotent, and all churches and colleges which are 
 founded for the promotion of piety and learning by proper regulations, 
 and to impart assistance to its members in the prosecution of those ob- 
 jects. All these eleemosynary corporations, strictly speaking, are 
 lay and not ecclesiastical, even though composed of ecclesiastical 
 persons.' 
 
 § 6. The remaining law in relation to corporations may be considered 
 under these heads: 1, how a corporation may be created; 2, what are 
 its powers, capacities, and incapacities ; 3, how corporations are visited ; 
 and 4, how they may be dissolved. 
 
 1. In this country there are probably no corporations by prescription 
 as there are in England. In Ohio, every body of men assuming to exer. 
 cise the powers and duties of a corporation must be authorized by some 
 act of the General Assembly, or an act of Congress, and organized in 
 conformity with the provisions of such legislative act. Congress has 
 only powers to incorporate such companies as may be in aid of the 
 general powers vested in the government of the United States — as the 
 Bank of the United States. The State legislature has full power to 
 create any corporation that may be consistent with the welfare of the 
 people. For this purpose frequent acts of incorporations are granted by 
 the General Assembly; but for the purpose of avoiding too frequent 
 applications to the legislature for special acts of incorporations, the legis- 
 lature has passed various acts to enable persons to obtain certain incor. 
 porations, upon filing certain papers and declarations of their object and 
 intentions with certain oiBcers of the State, who are authorized there- 
 
 U Blackst. Com. 469. 
 
CHAP. XV.] CORPORATIONS. 363 
 
 upon to issue certificates of incorporation, with certain powers, privileges, 
 and duties, in accordance witii the grant and requirements of the act of 
 the legislature authorizing it. These acts of the legislature and certifi- 
 cates of the officers are called the charter of the corporation. Whether 
 the corporation is incorporated by a special act of the legislature, or 
 by a certificate of the proper officer, in pursuance of the authority and 
 direction of the general acts upon the subject, in either case, it is gov- 
 erned by the same general principles of law. 
 
 § 1. When a corporation is created, a name must be given to it, because 
 it being a mere imaginary being, it is only known and identified by its 
 name ; and by that name it must sue, and be sued, and do all legal acts. 
 Still, a corporation may have a name by implication, or may have two 
 names, so it be well known and identified by either, or its name may be 
 changed by the same authority that created it. Any words which 
 show the intention are sufficient to create the corporation and desig- 
 nate its name.^ 
 
 § 8. 2. A corporation when so formed and named, acquires many 
 powers, rights, capacities, and incapacities, in many respects the same 
 as those of a natural person. Some of these are necessarily incident to 
 every corporation as soon as it has a legal existence. As 1. To sue or 
 be sued, implead or be impleaded, to grant or receive property by its 
 corporate name, and do almost any act as a natural person may. 2. To 
 Lave a perpetual succession, and hold its property and interest during 
 its existence, without regard to the continual change and succession of 
 persons who constitute or manage the corporation. 3. To have a com- 
 mon seal. 
 
 § 9. A corporation, being an invisible being, can only act by means of 
 its agents or officers, and cannot speak or write for itself ; and its acts 
 and contracts are properly evidenced by its seal. Deeds, and the like 
 solemn acts and grants, must be evidenced by its seal ; and it was for- 
 merly supposed that it could do no binding act except under its seal, as 
 the only means and evidence of its acts and agreements. But this is 
 settled otherwise, and considered to be sound rule of law, that wherever 
 a corporation is acting within the scope of the legitimate purposes of its 
 institution all parol contracts made by its authorized agents are express 
 promises of the corporation, and all benefits conferred at their request 
 raise implied promises, for the enforcement of which an action may 
 well lie.^ Acts of its authorized officers and agents in the course of the 
 transaction of the business of the corporation, either of commission or 
 of omission, will render the corporation liable in the same manner as 
 any natural person would be liable for the acts of his agents or servants, 
 
 1 1 Sher. Blackst. Com. 474, n. 4. 
 
 2 Bank of Col. vs. Patterson's admr. 7 Cranch, U. S. K. 806. 
 
364 PRIVATE LAW. [book ii. 
 
 although those acts were not authorized by any sealed instrument of 
 the corporation. 4. To make by-laws or private statutes for the better 
 government of the corporation, and its ofiScers and servants, which are 
 not contrary to the laws of the land, for then they would be void. 
 
 § 10. These powers and privileges are incident to every corporation ; 
 still, there are other privileges and disabilities that attend corporations- 
 dependent upon their character and the object of their creation. It is 
 true that, beyond these necessary and implied powers, a corporation, 
 being a creature of the law, has no inherent power except what has 
 been conferred upon it by its charter, or some general law, or what is 
 necessary to accomplish the end of its being ; but within the scope of 
 its legitimate functions it may act as a natural person might. When it 
 attempts to perform an act that is beyond or out of its legal powers, 
 the act is void, and advantage may be taken of it either by the agents 
 of the corporation or others interested in the question; as where money 
 is borrowed or lent when not authorized to do so ; or when, for instance, 
 it is authorized to lend money at six per cent, interest, it lends at a 
 greater rate of interest, it transcends its powers — the act of lending is 
 void, and it cannot recover the money lent, for the reason that the trans- 
 action was void. Neither can they hold land or property beyond that 
 which is specially allowed them by law or necessarily implied in the 
 object of their creation. 
 
 § 11. In this country the courts are astute in construing their powers 
 strictly in accordance with the grants of their charters, or with what is 
 necessarily implied. According to the common law, it was formerly 
 said in England, that holding land and other property was a right in- 
 cident to every corporation ; but even there this has long since been 
 altered by the statutes of mortmain, and by the statutes in relation to 
 wills; so that now there is but little difference in the two countries in 
 these respects. There are some other powers and disabilities incident 
 to a corporation that should be noticed, though it would be impracticable 
 to enumerate all here ; as that a corporation being an invisible and 
 imaginary person, it cannot do those acts which are done in person, and 
 therefore it cannot make its own appearance in court, but must appear 
 by its attorney. 
 
 § 12. A corporation cannot commit treason, or felony, or other crimes 
 in its corporate capacity; for whatever is done tending to illegal acts is 
 out of the authority and power of corporations, and is attributable to 
 persons or individual members who perpetrated or accomplished the 
 act. And for the same reason it cannot maintain an action for an 
 assault and battery, nor be the subject of one, for a corporation can 
 neither beat nor be beaten in its body politic. Yet, in cases of mere 
 question of damages, it is liable to an action for trespass or other torts 
 authorized by it, or committed by its servants or agents, in the course 
 
CHAP. XT.] COBPOBATIONS. 365 
 
 of their employment, in the same manner as an individual would be 
 liable for the acts of those who are in his employment. 
 
 § 13. When a company receives its charter of incorporation it should 
 be pareful to observe the requirements of the ■ law in its organiza- 
 tion, or its proceedings may be void. When the charter is accepted 
 and the corporation organized, the business of the company is trans- 
 acted usually in one of two ways, but always in conformity with any 
 special direction of the charter or law upon the subject. Where the 
 members are few, the corporation consists of a meeting of the whole 
 members, presided over by any member or ofiScer they may designate ; 
 or where the members of the company are numerous, either by the 
 direction of the charter, or by resolution of the company, certain offi- 
 cers are elected by the stockholders, as a president and trustees, etc., 
 who become the corporation, and transact all business of the company, 
 and whose successors are, from time to time, periodically elected to take 
 their place. 
 
 § 14. These meetings should only be held after due notice has been 
 given, so that every one who has a right to be present may have an 
 opportunity to be present. When the corporation is organized, their 
 meetings should only be held at the regular time pointed out by the 
 charter or their by-laws ; or at a special meeting, when every member 
 has had due notice, so that he may be present if he chooses. At each 
 meeting there must be present either a majority or such quorum as the 
 law or by-laws direct, and all resolutions or transactions can only be 
 carried by a majority of votes. These meetings should be regularly 
 presided over by the proper officers, and all their resolutions and pro- 
 ceedings kept in a journal of their proceedings, and they can only be 
 proved, when questioned, by the production of the record. Non-ob- 
 servance of any of these rules may have the effect of rendering their 
 proceedings in the particular case void, or subject to be set aside upon 
 a quo warranto.^ 
 
 § 15. 3. Visitation is the power that the founder had, according to 
 the common law, to visit, inquire into, and correct all irregularities that 
 arise in such corporation. The king was considered the founder of all 
 civil and public corporations, and was their proper visitor ; but as to 
 eleemosynary institutions the founder or his representative was the 
 acknowledged visitor. As to civil corporations, where the king was 
 the visitor, the right was exercised in his name in the Court of King's 
 Bench, upon complaint by means of writs, either of mandamus or quo 
 warranto. It is not known that the right of private visitation is exer- 
 cised in this country in any case ; but all cases of irregularities or other 
 
 \ 
 1 1 Sher. Bl. Com. 178 and n. 15; Oram vs. Bangor, 3 Pairf. E. 354; Stow 
 
 vs. Wise, 7 Conn. E. 214. 
 
366 PRIVATE LAW. [book ii. 
 
 causes of complaint against corporations are redressed by proceedings 
 in the proper court, by means of one or the other of these writs just 
 mentioned. 
 
 §16. 4. A corporation may become dissolved in various ways; and 
 that constitutes its end, as death does in the individual. Any member 
 may be disfranchised or lose his place or rights in the corporation, by 
 acts contrary to the laws of the institution or the laws of the land ; or 
 he may resign by his own voluntary act. This, however, does not pro- 
 duce a dissolution. That can only happen in one of the following 
 ways: 1. By the expiration of the time limited for its duration by the 
 grant of its franchises. 2. By the death of all its members, or by the 
 loss of an integral part, which renders it unable to do any corporate act 
 or restore itself by a new election. 3. By the surrender of its fran- 
 chises, or the repeal of its charter by the legislature with its assent. 
 4. By a forfeiture of its charter, through abuse or neglect of its fran- 
 chises, as for a condition broken. Whenever the dissolution has tran- 
 spired by any one of the first three, the establishment of the facts upon 
 which the event depends is suflScient to establish its dissolution ; but it 
 is not so in case of non-user or misuser, by which the charter might be 
 forfeited. This forfeiture cannot be established in a collateral issue. 
 There must be a judicial finding in a proceeding in quo warranto, in 
 order to make use of that event, as a fact in any other proceeding. A 
 corporation is not dissolved by a forfeiture without a judgment of a 
 court of law in the appropriate proceedings to enforce it. 
 
 § 17. On the dissolution of a corporation, its real estate reverts to 
 the grantor and his heirs; the personal property vests in the State, 
 though the several stockholders may have an equitable claim to a pro- 
 portionate share of the assets, after paying the debts. An act of incor- 
 poration being a compact between the State and the corporation, it 
 seems that the corporation cannot be dissolved without the consent of 
 both parties ; or by the judgment of a competent court upon the proper 
 proceedings; or the happening of some of those events above alluded to, 
 which of themselves produce its dissolution and death. And therefore 
 it has been held that a charter of a corporation granted by the legisla- 
 tive authority to a private corporation is considered as an executed 
 contract within the protection of the Constitution of the United States,' 
 which declares that " no State shall pass any law impairing the obli- 
 gation of contracts." Although in a popular sense nearly every cor- 
 poration is considered public, as they are all created for public benefit, 
 yet, if the whole interest does not belong to the government, or if 
 the corporation is not created for the administration of political or 
 
 ' Art. i. § 1ft 
 
CHAP. XV.] CORPORATIONS. 367 
 
 municipal purposes, it is a private corporation, and is invested with 
 this immunity.' 
 
 § 18. There are some instances where an association of persons have 
 a corporate capacity only for particular purposes, but who in that 
 capacity can sue and be sued as an artificial person : such bodies are 
 termed quasi corporations. For it is not essential to a corporation 
 that it should be vested with all the usual powers of a corporation, but 
 only that it should be clothed with perpetual succession, and be recog- 
 nized by the law as an artificial person, for such bodies really are cor- 
 porations.'' 
 
 § 19. Acts and deeds of the corporation are generally only evidenced 
 by the record of its proceedings or its writing under seal ; still, there 
 are some instances where it is bound by the acts and doings of its 
 authorized agents. A deed of conveyance of land by a corporation is 
 usually executed by the signature of the president or other executive 
 officer or officers, and the seal of the corporation, witnessed by the 
 necessary witnesses, and then acknowledged by such officer in his 
 official capacity, as any other deed. These formalities are necessary to 
 its due execution. 
 
 ' Trustees of Dartmouth College vs. Woodward, 4 Wheat. E. 518. 
 = 1 Sher. Blackst. Com. 469, u. 1. 
 
BOOIC III. 
 
 CIVIL LAW. 
 
 CHAPTER I. 
 
 CIVIL INJURIES AND THEIR REDRESS. 
 
 § 1. The third great division of our subject is private wrongs, which 
 are frequently called civil injuries, with the mode and manner of their 
 redress. They consist of such violation of private rights as are contra- 
 distinguished from those that concern the public ; the former being the 
 infringement or violation of such private or civil rights,' belonging to 
 the individual person, aa the law leaves to be redressed by the care and 
 vigilance of the individual himself, as distinguished from those wrongs 
 and injuries which affect the whole community, and are, therefore, prose- 
 cuted and punished as public offenses or crimes. 
 
 § 2. Wrongs and injuries are almost convertible terms ; but injury is 
 technically the term used for a wrong, which the law recognizes as such 
 by awarding a right of action for its redress. Although it is a maxim 
 of the law that there is a legal redress for every injury, — still, there are 
 many wrongs for which the law furnishes no redress. This is one of 
 the grounds upon which is founded the distinction between perfect and 
 imperfect rights. Injury, then, is the wrong committed to another's 
 right, which may be redressed in a court of justice ; and it involves a 
 consideration of all the civil rights of a person, — absolute and rela- 
 tive, — as well those which belong to him as a private person as those 
 which concern him as a citizen and a member of the civil community — 
 those rights that have been already considered ; and it now remains to 
 be considered how those rights may be affected by injuries, and how 
 such injuries may be redressed. 
 
 § 3. Legal rights and duties are correlative and convertible terms ; so 
 that where there is a right in one person there is a corresponding duty 
 
 1 Though the Eoman law has been emphatically called the civil law, yet it is 
 no less technical and correct to speak of private wrongs as civil injuries ; and the 
 whole body of the law for the redress of such wrongs as the civil law, or civil 
 remedies. 
 
 (368) 
 
CHAP. I.] CIVIL INJURIES AND THEIR REDRESS. 369 
 
 in another. These rights and duties appertain to particular individuals 
 with reference either to the person or to his property. The first com- 
 prise both the absolute and relative rights, and from these relative 
 rights spring those corresponding duties, — due to those who are in their 
 domestic relations. The second embrace those rights of property, both 
 personal and real, which have been already considered. 
 
 § 4. With regard to the injuries that may be thus received, to either 
 our absolute or relative rights, there are four points which require con- 
 sideration : the nature of the right aflFected, the mode of committing the 
 injury, the occasion or purpose of committing the injury, and with what 
 intent. The first involves all the consideration of the nature and char- 
 acter of the right affected, as those rights have been already treated. 
 The second, as to the mode in which the injury was committed, whether 
 it was by the commission of an offensive act or tort-feasance, or was 
 the omission of some act or duty which the party was bound to perform 
 on account of some obligation that the wrong-doer had put upon 
 himself, or that he had assumed by contract. In either way, it may bo 
 the result of one of three means of accomplishing the injury — it may be 
 by nonfeasance, which is simply not doing what by legal obligation, or 
 duty, or contract, the party complained of, ought to have done. Or, 
 secondly, by misfeasance, which means the performance in an improper 
 manner of some act which, by duty or contract, he was bound to per- 
 form. Or, thirdly, by malfeasance, which is the unjustifiable perform- 
 ance of some act the person had no right to do ; or had by some contract 
 or otherwise divested himself of the right to do so. These several 
 modes of committing private injuries are redressed or compensated by 
 the appropriate remedies pointed out by the laws ; in which should be 
 considered, whether the injury was solely a civil or private injury, or 
 was it one subject to be prosecuted both as a civil injury as well as a 
 public offense, or was it one wholly merged in a crime against the 
 public. 
 
 § 5. The third point — on what occasion, or for what purpose was the 
 injury committed. We should consider whether the act was prima 
 facie lawful, or was prima facie unlawful — whether it was what in 
 law is designated malum prohibitum, that is, merely wrong because it 
 was prohibited by positive law ; or malum in se, that is, wrong in its 
 very nature, as contrary to the principles of morality and justice. 
 
 § 6. And the fourth point to be considered is the intent ; for though 
 the intent with which an act was done is all-important in criminal cases, 
 it is generally unimportant in civil cases ; for the party is liable for the 
 injury he commits, without regard to his intention ; yet there are cases 
 where the intent is of vital importance, — as in the cases of slander, libel, 
 and malicious prosecution, — where the jury will always take into con- 
 ..sideration,, mofe.or less, the intentioji or njalicious conduct of the wrong- 
 
 2i 
 
370 CIVIL LA W. [book m. 
 
 doer in estimating the amount of damages. In some of these cases it 
 is said that malice was the gist of the action ; and malice itself may 
 be defined to be, the intentional doing an injury to another without a 
 just cause. 
 
 § 7. The injuries that a person may thus receive may be accom- 
 plished by a direct or immediate force, or violence, to either his person 
 or his property ; and this is denominated a trespass, or trespass with 
 force, and when applied to his person, will be either an assault, or an 
 assault and battery, or false imprisonment. Or they may be accom- 
 plished by indirect or consequential injuries to either his absolute or 
 relative rights ; as by slander or libel he is injured in his reputation ; 
 or by malpractice he has been injured in his health ; or by the conver- 
 sion of his goods he has been injured in his property ; or by seduction, 
 or enticing away of some one of his family or domestic relations, he is 
 injured in his relative rights ; and these are called consequential inju- 
 ries. The direct force and trespass may be used to effect an injury to 
 a person's property, either personal or real, and when used to eject the 
 owner from the possession of his real property is called an ouster. 
 
 § 8. Without further delay in illustrating the various injuries a person 
 may receive to his rights, or the manner in which they n)ay be accom- 
 plished, for these will fully appear in our progress, we will proceed to 
 consider the various means allowed by law for a person to obtain re- 
 dress of such injuries as he may have received. The law assumes to 
 furnish ample redress for all persons that may be injured in any of their 
 rights, and generally discourages, and, in most instances, forbids, the 
 taking the power into one's own hands of redressing his own grievances; 
 for, in most instances, it would be dangerous as it would be unlawful 
 for a person to undertake to administer justice for himself, and redress 
 his own injuries ; for that would lead, in most instances, to violence 
 and breach of the peace. But there are certain injuries of such nature 
 that some of them permit, and others require, a more speedy remedy 
 than can be had in the ordinary form of justice, and therefore, in these 
 cases, there is allowed a more expeditious mode of justice than the tardy 
 process of the law. 
 
 § 9. The different modes of redress of wrongs may be enumerated as 
 consisting of three several species : first, that which is obtained by the 
 mere acts of the parlies themselves ; secondly, that which is effected 
 by the mere act and operation of law ; and thirdly, that which may 
 be attained by suit or action in court. And first, of the redress of pri- 
 vate injuries, which may be obtained by the mere acts of the parties, 
 there are two sorts : (1) that which may be obtained by the act of the 
 injured party only ; and (2) that which arises from the joint acts of all 
 the parties together. 
 
 § 10. And^rs^, the defense of one's self, and the mutual ajid recipro- 
 
C!iAP. I.] CIVIL INJURIES AND THEIR REDRESS. 371 
 
 cal defense of such as stand in the relation of husband and wife, parent 
 and child, master and servant, is not only permitted by the law, but 
 commended as being demanded by our native feelings and the dictates 
 of justice. So, also, the law authorizes a person to protect and defend 
 his own property from the unlawful and wanton attacks of others. If a 
 person be forcibly attacked in any of his rights — absolute or relative — it 
 is lawful for him, in defense of them, to repel force by force ; and should 
 any breach of the peace happen in consequence of it, it is rather 
 chargeable upon him who began the affray, or committed the first 
 wrong. This is allowed by the law, as being both a natural and com- 
 mendable disposition of the human mind to resist wrongs, as well as a 
 desire to protect those who are so nearly and dearly connected to us. 
 The slow future process of the law, in affording relief against such 
 violent attacks, would be an inadequate relief; and it would be impossi- 
 ble to tell to what extent such violence and rapine might be carried if 
 there were no right to resist them at the immediate time. Self-defense, 
 therefore, is considered one of the primary laws of nature, and always 
 .respected by the common law ; but care must be taken that the resist- 
 ance does not exceed the bounds of mere defense and prevention, for 
 then the defender would himself become an aggressor."^ 
 
 § 11. Another instance of remedy by the mere act of the party injured, 
 allowed by the law, is that of recaption or reprisal. This may hap- 
 pen when any one has been deprived, by the wrongful act of another, 
 of his property, either personal or real, or where the wife, child, or ser- 
 vant of any one is wrongfully detained ; in which case the party injured 
 may lawfully claim and retake them wherever he may happen to find 
 them, or re-enter and take possession of his lands and tenements until 
 he has been lawfully divested of such rights,^ so that it be not done in 
 a riotous manner, or attended with a breach of the peace. This is per- 
 mitted upon the same principle as that of self-defense, — the necessity 
 and propriety of the thing. But as the public peace is a superior con- 
 sideration to any one man's private rights, this natural right of recap- 
 tion or re-entry is never permitted to be exerted when it would occa- 
 sion strife and contention dangerous to the peace of society, in which 
 case resort must be had to an action at law.' 
 
 § 12. A third mode of redress by the mere act of the party injured, is 
 the abatement or removal of nuisances. Whatever may unlawfully 
 annoy or damage another is a nuisance, and may be abated, — that is, 
 taken away or removed by the party aggrieved thereby, so that he com- 
 mits no riot in doing it, nor occasions any damage beyond what the 
 
 1 3 Stephens's Com. 357. See also post, Homicide. 
 
 ' See post, Limitations and Title by the Acts of the Law. 
 
 3 3 Stephens's Com. 359. 
 
372 CIVIL LA W. [book iii. 
 
 removal of the nuisance necessarily required. And the reason of this 
 is founded upon the same principle of justice as the former instances 
 of redress by the act of the party injured. 
 
 § 13. Secondly. The remedies that may be had by the joint act of all 
 the parties are only two: 1, accord and satisfaction; and 2, arbitra- 
 tion. 1. Accord is an agi-eement between the party injuring and the 
 party injured, — the one to make, and the other to receive something in 
 satisfaction of the injury, which, when performed, is a bar to all actions 
 on account of such private injury. As when a person agrees to receive 
 a horse or a hat or a sum of money in satisfaction of a trespass or a 
 breach of a contract, and it is paid and accepted as such ; this is a re- 
 dress of that injury, and entirely takes away the right of action. But 
 the action will not be taken away by the accord merely, without actual 
 satisfaction, for that would be only substituting one action for another ; 
 but a promissory note, payable at a future day, given and accepted in 
 accord and satisfaction, is a good bar ;' for the receiving of any new 
 thing, however insignificarit, by way of accord and satisfaction, is good, 
 unless it appears to the court that the thing itself is worthless ; and there- 
 fore the acceptance of a promissory note, or other valid paper, is a thing 
 that gives a different consideration and validity to the transaction, 
 though it does substitute one action for another. 
 
 § 14. Another objection to the validity of an accord and satisfaction 
 exists where there is an established and liquidated debt, as where a 
 man owes $100 and he accords with his creditor and pays $50, or any 
 less sum than the whole in satisfaction, it will not sufBce to bar the 
 action,'' though actually paid and received, for the reason that the actual 
 value of the several sums of money is known to and established by law, 
 so that the court judicially knows that one dollar cannot be a satisfaction 
 for two ; but where money is paid in satisfaction of an uncertain claim, 
 or a hat or a horse (whose value must be uncertain and immaterial) 
 is paid, and received as such accord and satisfaction, it is a complete 
 bar to an action on the original claim. 
 
 § 15. 2. Arbitration is where the parties on both sides submit the 
 matter in dispute to the judgment and determination of two or more 
 persons as arbitrators, who are to decide the controversy in the man- 
 ner and at the time and place agreed upon in the submission. If one 
 person be selected for such determination, he is called an umpire. The 
 decision in any such case is called an award. In such cases the question 
 is as fully determined thereby, where the award is in accordance with 
 the submission, as it could be by the agreement of the parties, or the 
 
 1 Ellis vs. Bitzor, 2 0. R. 89 ; Harper vs. Graham, 20 O. R. 105. 
 
 2 But if there should be any new consideration connected with such payment, 
 as payment before due, or by another, it would be a good satisfaction. 
 
CHAP, i] CIVIL INJURIES AND THEIR REDRESS. 373 
 
 judgment of a court of justice. By the common law the right to real 
 property could not, upon mere technical objection, be passed by a mere 
 award ; j-et, where the submission was by bond, and the award should 
 direct a conveyance which was within the terms of the submission, it 
 would doubtless be a breach of the bond to refuse a compliance. 
 
 § 16. The submission to arbitration may be by word {i.e. oral) or 
 by writing (as by a bond or other writing) ; yet in all cases the sub- 
 mission is, in its very nature, revocable at any time before the award is 
 finally executed ; for which reason it is customary to enter into the sub- 
 mission by bond, under mutual penalty for refusing to abide by the 
 award and determination of the arbitrators. And it is necessary that 
 the submission should be in writing, in order to bring the award within 
 the provisions of the statute, enabling them to be made a rule of court, 
 so as to give them the force of a judgment of the court. 
 
 § 17. An award, unless there be some legal objection to it, is as valid 
 as a judgment of a court between the parties, as it is considered but the 
 determination of a court of their own choosing, and is, therefore, subject 
 to a suit in court to enforce it, or under the statute to be enforced by a 
 rule of court. Awards are, however, subject to certain objections : — they 
 may be impeached in chancery as being manifestly against law, or ob- 
 tained by fraud, partiality, or other undue means. They may also be 
 void for errors appearing on the face of them, as whore they are made 
 contrary to the express terms of the submission, or other irregularity as 
 would, upon just and legal principles, render them unjust and void. 
 Generally speaking, exceptions to an award should be made within due 
 time by application to the court to set them aside, and not wait to 
 raise the objection, collaterally, upon the suit being brought to enforce 
 them. 
 
 § 18. Thirdly. Bedresn by mere operation of law. The instances 
 where an injury may be redressed by operation of law, without the ac- 
 tion of the parties, are few, and may be enumerated in three classes of 
 cases, viz : — the right of retainer ; the right of remitter ; and the right 
 of lien. 
 
 § 19. I. Retainer is the act of withholding what one has in his own 
 hands by virtue of some right. .As where a person comes into the pos- 
 session as a trustee, holding a fund, out of which he has a claim to be 
 paid as a creditor. The retainer is allowed for the reason of the ab- 
 surdity it involves of a person suing himself in order to collect or settle 
 the claim. But the creditor, in such cases, cannot retain to the prejudice 
 of other creditors of a higher degree, or of a prior claim. Nor in case 
 of insolvency, so that a dividend is to be made of the funds, for the law 
 only put him in the same situation as though he had sued himself as 
 creditor and recovered on his claim. By the common law, if a creditor 
 were made the executor or administrator of an estate, he had the 
 
374 CIVIL LA W. [book hi. 
 
 right to retain so much as would pay himself against the claim of any 
 other creditor of the same degree.' In this State this n'ght, as to ex- 
 ecutors and administrators, is so regulated by statute as to require the 
 claim to be audited and allowed by the probate court, ^ and thus the 
 amount of his claim stands in the same situation as that of any other 
 creditor. 
 
 § 20. II. Eemitler is where he who has the right of entry in lands, 
 but is out of possession, afterward obtains the possession of the land by 
 some subsequent, and of course defective, title ; in this case he is remitted, 
 or sent back, by operation of law, to his ancient and more certain claim 
 and title. The possession which he has gained by a bad title shall be, 
 ipso facto, annexed to his own inherent good title, and his defeasible 
 estate shall be utterly defeated by the act of law. As where a person 
 who has a good title is turned out of possession, and afterward takes 
 possession from the disseizor by some defective title (as a demise 
 not in writing or by record), this re-entry, by such defective title, is a 
 remitter to his former and better title. But if his re-entry is by some 
 valid act and title, as a demise by a valid deed between the parties, he 
 would be bound by it, for he could not be permitted to deny or repudiate 
 his own valid act, and it would amount to a waiver of his right of re- 
 mitter. This right is also founded on the same reason as the former 
 right, that which arises from the necessity of the case, for as he himself 
 is in possession, there is no other person upon whom he can make 
 entry,' or commence proceedings at law ; his only legal remedy in 
 such case would be (besides the remitter) a proceeding in equity to 
 quiet title. 
 
 § 21. III. A lien is where a person has a right to retain property 
 until some claim recognized by law, as such, is satisfied. Liens are 
 treated of as either piarticular or general liens, or as either legal or 
 equitable liens. They sometimes arise by mere operation of law ; at 
 others they are created by the express contract of the parties.* An in- 
 stance of a particular lien, is where a tailor or other mechanic has be- 
 stowed labor on an article by him made, or manufactured,^ or repaired, 
 on which the law gives him a particular lien for the payment of his 
 charges. And the law gives a general lien where money has been ad- 
 vanced, or labor bestowed on property that is constantly changing, as 
 in cases of mercantile agencies, attorneys, and the like. These liens are 
 called legal when they are so far recognized in law as to be admitted 
 in the courts at law ; but there are a class of liens which are so en- 
 
 13 Blackst. Com. 18; 3 Stephens's Com. 378. 
 
 2 Wall vs. Piatt, 5 0. R. 72. 
 
 s Blackst. Com. 20; 3 Stephens's Com. 060; 2 Bonv. Inst. 60. 
 
 «3 Bouv. Inst. 61. sgee Bailment. 
 
CHAP. I.] CIVIL INJURIES AND THEIR REDRESS. 375 
 
 tirely founded upon equitable principles as to be only recognized in 
 equity, as in case of the vendor's lien for the payment of the purchase 
 money.' 
 
 § 22. Fourthly. Redress of injuries bij the aid of courts of law. 
 When a person has been injured in any of his rights, absolute or rela- 
 tive, which cannot be fully redressed by either the acts of the parties 
 or the operation of law, the law assumes to provide a remedy for every 
 injury by application to the proper court, by means of an action and 
 proceedings at law. This will require us to consider in the progress of 
 the work, — first, the courts and their jurisdiction in which such redress 
 may be had ; second, the action by which it is demanded ; and third, 
 the proceedings by which it is procured. These will be considered 
 consecutively in the progress of this book. 
 
 § 23. But it should be first observed that the injuries of which a 
 person may complain may be wrongs committed to his person, his repu- 
 tation, or his property, by actual wrongs committed by some wrongful 
 act of commission, which are denominated torts ; or wrongs committed 
 to rights that a person may claim as due him from another which such 
 other person has assumed upon himself by some voluntary contract or 
 obligation, or by some obligation that the law casts upon, him in his 
 particular condition or situation, and which duty, by mere omission, he 
 neglects or refuses to perform. This distinction as to wrongs between 
 those which arise from torts committed and duties omitted, will be ob- 
 served to run through the whole process of redress of civil injuries by 
 proceedings at law. They are distinguishable both as to the manner in 
 which the wrong may be complained of, and the redress to be applied. 
 This will be more fully illustrated when treating of actions in court 
 for the redress of private or civil injury. 
 
 § 24. It should be further observed here that the wrongs and injuries 
 so far contemplated are those which are received by one private indi- 
 vidual from another. But as persons are divided, and considered as 
 either private or public persons, it will be necessary not only to con- 
 sider such injuries as may be received from the acts of private persons, 
 and the means by which they are redressed, but also such civil injuries 
 as a private person may receive, proceeding from the government or 
 persons acting in their public capacity. 
 
 § 25. Civil injuries may sometimes be received by acts proceeding 
 from the government, or from persons acting in a public capacity. In 
 general, every person, though he may be acting in a public capacity. 
 
 ' The student should be careful to notice that the law does not give a lien in all 
 cases where money or labor has been bestowed upon, or for the preservation of, 
 the property of another. It is confined to a certain class of cases, which will be 
 more fully pointed out under the head of Bailment. 
 
376 CIVIL LA W. [book irr. 
 
 is liable for all trespass or injury committed, or if lie exceeds his 
 authority or acts under a void one. Yet in some cases the illegal act 
 is so blended with their official duty, or the act so far within their, 
 authority, or their authority so far valid, from the necessities or exi- 
 gencies of the government, as that the ordinary remedies for civil 
 injuries will not redress the wrong received, or they are necessarily 
 denied. 
 
 § 26. It is a principle of universal application, as necessary for the 
 protection of those in whom public trust may be confided, that the per- 
 son who exercises the power conferred by such trust cannot be made 
 liable for it to any individual in any form of action. But where a per- 
 son makes his official position a pretense for the performance or com- 
 mission of an act that the law does not authorize, he becomes a wrong- 
 doer, for which he may be made liable in an action'at law as a private 
 individual ; and in those instances where the act was not warranted in 
 its commencement the officer might be treated as a trespasser ah initio. 
 And, as a general rule, where the performance of a public duty is cast 
 upon a public officer and he willfully neglects to perform that duty, by 
 which neglect another suffers some special damages, the person so 
 guilty is liable in some form of action, either in the special form pre- 
 scribed by the statute creating the duty, or by an action on the case, to 
 recover the special damages so sustained. 
 
 § 21. The law protects and upholds an officer in the honest and faith- 
 ful discharge of his duty, however erroneous or misconceived. This re- 
 sults from a matter of necessity; for no person would be induced to 
 engage in public trust if the law which invested him with the authority 
 were to be used as a weapon of offense against him. Whatever a public 
 officer does in the discharge of his duty, the law will presume to have 
 all been rightly done, unless the circumstances of the case overturn this 
 presumption.' And where an officer acting within the scope of his duty 
 commits an error or mistake, he is only responsible for an injury result- 
 ing from a corrupt motive. 
 
 § 28. But there is a well-established distinction between the acts of 
 an officer that a,ve judicial, and those that are ministerial or executive. 
 As a general rule, no suit lies against an officer for a mistake in the 
 exercise of a judicial discretion; but for a mistake or negligence in the 
 performance of a ministerial or executive duty, there may be a right of 
 action for injury sustained in consequence of it, especially if it be the 
 result of a corrupt motive. But in all these cases where the law will 
 sustain an action against a person for the injurious results of an act 
 done by a person in exercise of official duties, he is proceeded against 
 
 > Dunlap vs. Knapp, 14 0. S. E. 04; 'Ward vs. Barrows, 2 O. S. K. 241 ; Bank 
 U. S. vs. Dandrldge, 12 Wheaton's E. TO; 13 O. E. 157. 
 
CHAP. I.] CIVIL INJURIES AND THEIR BEDBESS. 377 
 
 as a private individual, as though, when thus in fault, the law did not 
 guaranty to him its protection. 
 
 § 29. Yet there may be instances where an individual may justly 
 complain of wrongs or injuries arising from the officers of the government 
 or their acts, where the action at law could not be sustained for private 
 damages; nor could an action be sustained in any case against the 
 government itself. Cases of this kind occur in certain instances, where 
 the illegal act complained of is so blended with the official duties, or 
 the act so far within their authority, or the authority so far valid, and 
 protected from the necessities or exigencies of the government, as that 
 the ordinary remedies for civil injuries will not redress the wrong 
 received, or they are necessarily denied. But such cases are not, by 
 the vigilance of the law, left without appropriate redress. Where the 
 matter complained of partakes of an error in judicial proceedings, ^he 
 law provides a remedy by some appellate proceedings or proceedings in 
 error, which will be treated of in the sequel of our proceedings at law. 
 
 § 30. In most instances where injuries are received from the govern- 
 ment, or from persons acting, or assuming to act, in a public capacity, 
 and where the ordinary redress by action is refused, the law has pro- 
 vided the proper and appropriate remedy in each particular class of 
 cases, viz.: I. Quo warranto; 11. Mandamus ; III. Prohibition a,Tid pro- 
 cedendo. These are the names of certain writs applicable to the relief 
 required in each particular case. 
 
 § 31. I. Quo warranto is the proper remedy in cases where a person 
 exercises, or claims, or usurps an office to which he has no right ; or in 
 case a person or corporation claims a franchise, privilege, or liberty to 
 which they are not entitled, or have no right or authority to claim or 
 exercise ; or having forfeited their right by non-user or neglect, misuser 
 or abuse ; in either of these cases a writ of quo warranto may issue to 
 inquire by what authority they support their claim or office, in order to 
 determine the right. This writ commands the defendant to show by 
 what warrant he claims or exercises such franchises or office. It issues 
 out of the superior court that may have jurisdiction, and is returnable to 
 it; and the judgment upon it when in the supreme court is final and 
 conclusive. In case of judgment for the defendant, his claim will be 
 confirmed ; but if the judgment be for the State, for that the party is not 
 entitled to such office or franchise, or has forfeited it by neglect or 
 abuse, the court will render such judgment, and order such proceedings 
 thereon as will prevent further injuries or abuse ; or that will enable 
 the person who may be injured to have plain and adequate redress. 
 Proceedings of this nature may be had by filing an information in the 
 ■ nature of a writ of quo warranto. This is in the nature of a criminal 
 proceeding to punish the usurpation and to oust the intruder out of the 
 office or franchise, as well as to give relief to the private injury, and for 
 the purpose of trying the civil right. 
 
378 CIVIL LA W. {BOOK in. 
 
 § 32. II. Mandamus. Where a person is entitled to have a commis- 
 sion or an office, but the same is refused or withheld from him, or the 
 production, inspection, or delivery of any public book or paper, or other, 
 public acts are refused ; or where the holding of an inferior court is 
 refused, or the judges thereof refuse to do justice according to the 
 powers of their office, injuries received in any of these cases may be re- 
 dressed, or the act refused or withheld may be compelled to be per- 
 formed by a writ of mandamus. This is a writ of a high and most 
 extensive remedial nature. It is issued direct to person, corporation, or 
 inferior court, commanding them to do some particular thing therein 
 specified as appertaining to their office or duty. It is the oftenest applied 
 to redress injuries in consequence of the delay or refusal of justice in an 
 inferior court. The supreme court, as the dernier ressort of our courts 
 of judicature, has the superintendence of all inferior courts, and power 
 to enforce the due execution of the judicial or ministerial functions in- 
 trusted to them by the constitution and legislature, and not only to 
 restrain their excesses, but also to quicken their diligence and obviate 
 their delay of justice. 
 
 § 33. The writ is obtained by suggestion, on oath of the party injured, 
 of the injustice he has received ; whereupon the court will order that a 
 writ shall issue on a certain day, unless the party complained of shows 
 cause to the contrary. The issuing of the writ in a great measure rests 
 in the sound discretion and judgment of the court; and they will not 
 grant it in the first instance unless the probable grounds be manifest, 
 or it be a matter demandable ex debito juslitise, as to enforce the obedi- 
 ence of a statute, or concerning something of a public nature. Unless 
 cause be shown to the contrary, the writ issues in the first place nisi 
 or in the alternative, either to do the thing commanded or signify 
 reason to the contrary, — a return to which must be made on a certain 
 day ; and if the return or reason signified be insufficient, then there 
 issues, in the second place, a peremptory mandamus, to which no return 
 will be admitted but a certificate of perfect obedience and the execution 
 of the writ. If the defendant makes no return, or fails in respect and 
 obedience to the command of the writ, he is punishable for his contempt 
 by an attachment. But if he makes a return apparently sufficient, but 
 false in fact, the complainant may have an action against him for the 
 false return, in which he may recover adequate damages to the injury 
 received ; and he may plead to and traverse the false return, and if found 
 in his favor, he may have a peremptory mandamus, or an attachment. 
 
 § 34. III. Prohibition and procedendo. When a person is injured by 
 an inferior tribunal in their assuming jurisdiction which they do not 
 possess, ho may be redressed by a writ oi prohibition, which issues out- 
 of the superior court, directed to the judge and parties in the inferior 
 
 » 3 Blackst. Com. 112. 
 
CHAP. I.] CIVIL INJURIES AND THEIR REDRESS. 379 
 
 court, commanding them to cease from the prosecution thereof, upon a 
 suggestion that either the cause originally, or some collateral matter 
 arising therein, does not belong to their jurisdiction, but to the cogni- 
 zance of some other court. Upon the court being satisfied of the truth 
 of such suggestion, the writ of prohibition immediately issues, and if 
 either the judge or party proceeds thereafter, an attachment may be 
 had against them for contempt of the court that awarded it ; and an 
 action will lie against them to repair the party injured in damages. 
 
 § 35. A procedendo is an order of the superior court to the inferior 
 court, commanding it to proceed to judgment in a certain case. This 
 may be a writ of procedendo ad judicium, or it may be an order in the 
 record or transcript sent from the superior court to the inferior, com- 
 manding it to proceed to final judgment, usually without suggesting the 
 judgment, leaving that, in case an erroneous judgment be given, to 
 be corrected by proceeding in error. Such procedendo is sometimes 
 awarded, in case a suit is removed from an inferior to the superior court, 
 as in cases of habeas corpus, certiorari, error, and the like, and it ap- 
 pearing to the superior court that the case was improperly removed, or 
 otherwise appearing that it is proper, it should be returned with such 
 order to proceed. 
 
 § 36. In many instances a mandamus will, at the same time, accom- 
 plish the object of a prohibition or procedendo, and supersede the ne- 
 cessity of their special application. But the object of any of these pro- 
 ceedings may frequently be accomplished in a more expeditious manner, 
 by what is called a rule of court. This is obtained by a motion 
 in the court, having jurisdiction of the matter, in a case where, upon 
 principles of acknowledged justice, the matter prayed for should be 
 done. Upon the court being satisfied of the propriety of the motion, 
 by affidavits or otherwise, the rule is granted, and served upon the party 
 by whom the act required is to be performed. The rule so moved for 
 is usually granted in the first instance as a rule to show cause (called a 
 rule nisi), commanding the party on a certain day to show cause why 
 the act prayed for should not be performed. But in some cases, where the 
 right to the relief prayed for is very clear, the rule is granted absolute in 
 the first instance. When, however, it is granted to show cause or nisi 
 on the day set, the matter is heard on the part of both parties, and the 
 court, as the right of the case may appear to them, either discharge the 
 rule or make it absolute. 
 
 § 37. In any of these cases, wherever the court has ordered a matter 
 to be done or performed, the party so ordered is bound to obey it upon the 
 peril of an attachment as for a contempt of the court, — a writ issued by 
 the court in vindication of its own authority, and under which the party 
 is liable to coercion by arrest of his person and by fine and imprison- 
 ment. Thus careful is the law in furnishing redress in every case of 
 wrong or injury of which a person may complain. 
 
380 CIVIL LAW. [book III. 
 
 CHAPTER II. 
 
 COURTS AND THEIR JURISDICTION. 
 
 § 1. When the injury that a person may have received is not redressed 
 in one or another of the several ways already pointed out, he may apply 
 for relief to the proper court established by the government for that 
 purpose, whose functions are to afford redress for every injury. A court 
 is defined to be a place where justice is judicially administered.^ The 
 constitution has provided for the creation of the necessary courts, and 
 they are organized by the statutes of the State as the judicial branch of 
 our government.^ For the more convenient and expeditious admin- 
 istration of justice, courts are established in convenient and suitable 
 proximity to the suitor, with various powers, jurisdiction, and mode 
 of proceedings, adapted to the calls of justice and the wants of the 
 people. 
 
 § 2. Our constitution and laws, for the purpose of furnishing a conven- 
 ient and expeditious mode of administering justice, have constituted a 
 variety of courts, and of different grades, from the local courts of the 
 townships to those of the county, and those of the State, as may be 
 witnessed in the courts of justice of the peace in the several townships, 
 or that of the mayor or other ofBcers of the incorporated towns, in the 
 probate court, the court of common pleas, and the district courts of the 
 several counties, and in the supreme court for the whole State. These 
 courts are spoken of and classified : I. With reference to the powers 
 and character of the courts themselves ; II. With reference to their ju- 
 risdiction ; and III. With reference to their mode of proceedings. Each 
 of these distinctions and classifications will be considered before treating 
 of courts more in general. 
 
 § 3. I. As to the courts themselves, they are said to be either — 1. 
 Civil or criminal, or both, as they have power over civil or criminal mat- 
 ters. But here we have only to deal with courts that have cognizance 
 of civil matters, — for criminal matters are postponed as the subject of 
 the fourth book, — as public wrongs. The distinction in courts and their 
 proceedings, dependent upon their having cognizance of either civil or 
 criminal matters, is doing no violence to the nature of things, though 
 it is most usual to find courts having jurisdiction in both ; yet we find 
 courts exclusively confined to one or the other, — either civil or criminal 
 
 1 3 Stephens's Com. 382 ; Co. Litt. 58. 
 
 2 Seu ante, B. i. ch. v. and x., the Judiciary of the U. S. and the State of Ohio. 
 
CHAP. II.] COURTS AND THEIR JURISDICTION. 381 
 
 matters. Thus, the court of probate and the superior court of Cincin- 
 nati are courts of civil cognizance only, while almost all the courts in 
 Ohio are courts of both civil and criminal jurisdiction. The courts of 
 justices of the peace and the courts of common pleas are courts of both 
 civil and criminal jurisdiction, and have therein original jurisdiction, 
 while the district and supreme courts have in criminal matters onlj 
 appellate jurisdiction In cases In error. 
 
 § 4. 2. Courts are distinguished as inferior and superior or supreme. 
 A court is said to be inferior when it is subordinate and subject to tho 
 control and direction of a superior, as by a writ of error, or certiorari, 
 or mandamus, and the like appellate jurisdiction or remedial writs. 
 This distinction is dependent upon their relative powers and authority ; 
 thus, the common pleas is superior to the justices' and probate courts, 
 while at the same time it is inferior to the district and supreme courts. 
 
 §5. 3. Courtfe are again distinguished as cowrte o/ record and comWs 
 not of record. There is some difficulty in making this distinction intel- 
 ligible from the terms used. There were once, undoubtedly, courts 
 where their whole proceedings and final judgments were orally made, 
 and without any record entry, — the whole depending upon the memory 
 of the officers and persons present. It is probable for this reason, that 
 in England, where the proceedings or judgment of an inferior court, not 
 of record, is called in question, it is to be tried and determined by a 
 jury,^ and their proceedings are brought up to the higher court by cer- 
 tiorari, and not by writs of error. It is there said that a court of record 
 is that where the acts and judicial proceedings are enrolled for a per- 
 petual memorial, and which are called the records of the court. But 
 courts not of record are those of inferior dignity, and are not intrusted 
 with power to fine or imprison,' unless expressly authorized by act of 
 Parliament, and their proceedings are not enrolled and recorded. 
 
 § 6. But in this country the distinction between courts of record and 
 those not of record is made and determined by somewhat of a different 
 test. Here no court would be tolerated without some kind of record 
 of their proceedings and judgments ; and any allegation of such proceed- 
 ings, without written evidence as record, would be of no account and 
 would avail nothing. Here the term court of record is applied to those 
 higher judicial courts whose proceedings and judgments are in writing, 
 and which, together with the pleadings, i.e. complaint and answer, etc. 
 of the parties, are fully recorded and made up as a history and record 
 of each case. And courts not of record are those inferior courts, as 
 those of the justices of the peace, mayor, and the like, whose proceed- 
 ings are summary, and whose record is merely entries of the substance 
 
 1 3 Stephens's Com. 384; 3 Blaokst. Com. 24; 2 Co. Litt. 311. 
 " See Blackstone and Stephens, Tit supra. 
 
8S2 CIVIL LAW. [book hi. 
 
 of their proceedings and orders in a docket or journal of their proceed- 
 ings; and without such entries their proceedings and judgments would 
 be of no account. 
 
 § 7. Although these inferior courts, whose proceedings are summary, 
 and preserved only by short entries in their dockets or journals, are 
 called courts not of record to distinguish them from those superior 
 courts who keep and make up a full and perfect record of their doings, 
 yet a transcript from their docket, duly certified, is treated, even in the 
 supreme court, as a record having the same force and validity as any 
 record as to matters within their jurisdiction ; and this without any 
 reference to the question whether such inferior courts have or have not 
 any power to enforce a fine or imprisonment.' 
 
 § 8. 4. And again, coui-ts may be distinguished as courts of law or 
 courts of equity. This distinction depends upon the fact whether the 
 court in question has cognizance of actions at law or suits in equity. 
 In England these courts are kept separate and distinct; in this country 
 their separate functions are generally united in the same court; and in 
 Ohio, under the code, a cause of action at law and one in equity may be 
 united in the same suit. The rule of distinguishing between a case at 
 law and one in equity is, that equity will afford relief iu those cases 
 where there is not a plain and adequate remedy at lav7. The code, 
 however, by amalgamating the two together, has destroyed the advan- 
 tage of the distinction between the two, without affording the peculiar 
 advantage of either. 
 
 § 9. II. Courts are further distinguished in reference to their juris- 
 diction. Their jurisdiction may be — 1, concurrent or exclusive ; 2, origi- 
 nal or appellate ; or 3, it may be limited or jreneral. And 1. Courts 
 may have concurrent or exclusive jurisdiction'^ in the administration of 
 the law, just as powers have been conferred upon them by their creation 
 and organization ; and this distinction may be, and usually is, dependent 
 upon the same characteristics of the parties, or the subject-matter in 
 litigation, or the amount in controversy. Thus, the United States have 
 exclusive jurisdiction in some cases and concurrent in others, as in con- 
 troversies between two or more States, and cases where a foreign ambas- 
 sador may be a party. Suits between citizens of different States may 
 be brought in United States courts, or in the State courts, as the par- 
 ties may determine, and therefore the jurisdiction is concurrent.'' The 
 jurisdiction of the probate court in testamentary matters is exclusive. 
 In cases in contract, in questions of jurisdiction between the justices' 
 court and that of the common pleas, they may be concurrent or exclu- 
 
 » See Stockwell vs. Coleman, 10 O. S. R. S3 ; Edmiston vs. Edmiston, 2 0. B. 
 251 ; 5 0. E. 546 ; 13 Ibid. 209 ; 14 Ibid. 91. 
 » See ante, B. i. oh. v. ? 7 and 10. 
 
CHAP, n.] CODRTS AND THEIR JURISDICTION: 883 
 
 sive, dependent upon the amount in controversy. Under $100 the 
 justices' has exclusive jurisdiction ; over $300 the common pleas has 
 exclusive jurisdiction. Between those two sums, these courts have con- 
 current jurisdiction. 
 
 § 10. 2. Next, the jurisdiction of courts may be either original or 
 appellate. This is an important distinction ; for a party is not, in the 
 first instance, to commence his suit or proceedings in any court he may 
 choose, but in such court as the law has designated as the court to origi- 
 nate such proceedings. Such courts are denominated courts of original 
 jurisdiction, while those superior courts, to which the cases, after their 
 determination in the court below may be taken for review or correction 
 of errors, are courts of appellate jurisdiction. This may be done by 
 appeal or proceedings in error. 
 
 § 11. The supreme and district courts of Ohio have but very limited 
 original jurisdiction, as has been seen in cases of a few important reme- 
 dial writs, as mandamus and the like ; while the body of the cases pend- 
 ing before them are brought to them as an appellate court from the 
 court of common pleas and other inferior courts, which have the origi- 
 nal jurisdiction. This is so done for the purpose of reducing or keeping 
 down the great amount of business in the superior courts, by sifting 
 them, and endeavoring to give satisfaction to the parties in the inferior 
 and courts of original jurisdiction. The mode of proceeding in cases 
 of appeal and in error will be a subject of future consideration. 
 
 § 12. 3. And lastly, courts are distinguished as courts of limiied or 
 gfe)ieraZ jurisdiction.^ In regard to courts of limited jurisdiction, it is a 
 general rule that the record must present a case apparently within the 
 jurisdiction of the court ; and where that is given by statute, and is to 
 be resorted to only on the occurrence of particular facts, those facts 
 must be shown ; for though it may be correct to presume its existence 
 in a court of general jurisdiction, it does not apply to courts of limited 
 jurisdiction, as that of a justice of the peace, much less to those whose 
 jurisdiction is wholly dependent upon statutory provision. But where 
 the court is a court of general jurisdiction, the case will be presumed 
 to be within its jurisdiction, unless the contrary appears. 
 
 § 13. III. Courts may next be considered in reference to the mode 
 of proceeding. Here the proceedings of courts may be distinguished — 
 1, as ex parte or adversary; or 2, as in rem or in personam ; or 3, as 
 judicial or ministerial or executive. And 1. Proceedings are said to 
 be ex parte when a person has a right to invoke the aid or action of the 
 court in his own behalf, without any particular proceedings against an 
 adversary, as where a person applies for the benefit of the insolvent or 
 bankrupt laws ; or applies for probate of a will ; or the appointment of 
 
 » See ante, B. i. ch. v. ? 10. 
 
384 CIVIL LA W. [book in. 
 
 an administrator or a guardian; or where a person is called upon by the 
 court to answer for a contempt, and the like proceedings. But ordina- 
 rily the action and proceedings of the court can only be invoked into 
 action when one person, upon some legal complaint, prays the action 
 of the court for some appropriate redress against another. Then the 
 proceedings are said to be adversary, and there will be three constitu- 
 ent parts in the action : the plaintiff, or actor, — the party who com- 
 plains and prays for redress ; the defendant, or reus, — the person against 
 whom the complaint is made, and is called upon to answer, and against 
 whom the judgment of the court is asked ; and lastly, the court itself, 
 as the tribunal that is to determine the matter in controversy and order 
 the proper relief. 
 
 § 14. 2. The proceedings may also be in rem, or in personam. The 
 first is where the proceeding of the court is against the thing itself, and 
 no one made defendant, or any judgment or order sought against any 
 one, but merely subjecting the thing in question to the claims of the 
 plaintiff under the judgment and order of the court. In such proceed- 
 ings it is necessary that the thing in question should be within the 
 jurisdiction of the court, and that there should be such public notice, 
 advertisement, or attachment as the law requires in such matter, or the 
 whole proceedings would be coram nan judice, and void. The judg- 
 ment in such case is binding only upon the thing, and will not operate 
 on the owner or person, or be of itself any evidence of a claim opera- 
 ting upon the person in the future. Such proceedings are had in cases 
 of attachments, in cases to condemn specific property, to subject certain 
 property to payment of specific liens, or to the payment of taxes and 
 the like. 
 
 §15. But ■pvoceedm^s in personam are where some relief is sought 
 against the person of the defendant by means of an order or judgment 
 of the court. But in order to make such judgment available, not only 
 must the court have jurisdiction as to the action or suit, but the per- 
 son of the defendant himself must be brought within the jurisdiction 
 of the court by some proper process of the court, or summons, or by his 
 own voluntary submission or appearance in court. When the pro- 
 ceedings are in personam it is absolutely necessary that the appearance 
 of the defendant should be thus effected, in order to secure the validity 
 of the proceedings ; for it is a universal principle that the court should 
 have jurisdiction over the person as well as over the cause of action ; 
 that the defendant should have his day in court, or the proceedings will 
 have been coram non judice, and void. Sometimes, when the court 
 have acquired jurisdiction over the person, but have not the thing or 
 subject-matter within their jurisdiction, they may still accomplish the 
 relief or object by compelling the defendant to convey or assign, for the 
 court then aget in personam et non in rem. 
 
CHAP. II.] COURTS AND THEIR JUBISDICTION. 385 
 
 § 16. 3. And lastly, proceedings may be either judicial or ministe- 
 rial or executive. A judicial act is that which is done by an officer 
 having power to determine a question by his judgment, involving intel- 
 lect and will in a matter of opinion. A ministerial or executive act is 
 that which is lawfully done by an officer, by the direction or command 
 of a superior power. The court determines the rights of the parties as 
 a judicial act ; the clerk issues a writ at the instance of the court as a 
 ministerial act; and the sheriff serves a summons or execution as a min- 
 isterial or executive act. The act of a probate court in granting letters 
 of administration, and determining who is entitled to them, is a judicial 
 act ; but the mere act of issuing the letters in pursuance of such deter- 
 mination, is a ministerial act. Thus, the proceedings of a court are 
 made up of judicial and ministerial acts. It is sometimes difficult to 
 distinguish the ministerial from the judicial ; but wherever the act in- 
 volves both, the judicial act covers and protects the ministerial. 
 
 § 17. The distinction between judicial and ministerial is important in 
 this respect as well as others: that a judicial officer while acting within 
 his jurisdiction is not liable to any action for any apparent neglect of 
 duty or mistakes he may commit in the exercise of his official duties. 
 He may be impeached, and in that manner punished for gross perver- 
 sion of duty, but is liable to no civil action. But it is otherwise with 
 ministerial officers, who may be sued for the abuse of their authority.' 
 For wrongful acts they are liable, whether they are acts of commission 
 or omission ; but when done apparently in the discharge of their official 
 duties, they would generally be held responsible only for such acts as 
 were grossly and clearly in the wrong. 
 
 § 18. The question may now be asked. How may the jurisdiction of 
 the several courts be ascertained, and conflict of jurisdiction between 
 them be -settled ? The organization and jurisdiction of the courts of 
 both the TJnion and the State have already been delineated.^ The State 
 courts have a general jurisdiction and supervision of all private rights 
 and affairs very much the same as though there were no United States 
 courts in existence. But the courts of the Union, though supreme 
 within the jurisdiction expressly given to them, are limited within those 
 express bounds ; and where a case exists, and it is questioned whether 
 its jurisdiction belongs to the courts of the United States or that of the 
 State, where it is not palpably within the former it is always safe to say 
 it is within the latter. But a person may be desirous (as is often the 
 case) to bring his case in the courts of the United States if he can sus- 
 tain it there. In determining the question, it should be borne in mind 
 that the courts of the United States and their jurisdiction were given to 
 
 1 See ante, B. i. ch. xii. g 6 and 7, Officers, etc. See also 6 New Amer. Cyclo. 14. 
 
 2 See ante, B. i. ch. v. and x. 
 
 25 
 
386 CIVIL LA W. [book hi. 
 
 them for the sole purpose of transacting the judicial business of the 
 United States and preserving the integrity of the Union. With this 
 view their jurisdiction is expressly confined to a certain class of cases, 
 or a certain class of persons ; and where the case cannot be thus classed 
 it necessarily belongs to the State courts. 
 
 § 19. The jurisdiction of the courts of the United States, asprbvided 
 by the Constitution and laws of the United States, may be asserted on 
 the account of the character of the cases without reference to the parties ; 
 or on the account of the parties without reference to the character of 
 the case. Their jurisdiction may be thus concisely stated : — those 
 cases where the jurisdiction of the courts of the United States may be 
 claimed, on account of the character of the case, are — 1, in all cases 
 of law and equity arising under the Constitution, laws, or treaties of the 
 United States ; and 2, all cases of admiralty and maritime jurisdiction. 
 Those depending upon the character sustained by parties are — 1, all 
 cases affecting ambassadors, other public ministers and consuls ; 2, con- 
 troversies to which the United States shall be a party ; 3, controversies 
 between two or more States, or between a State and a citizen of another 
 Slate; 4, between citizens of different States ; 5, between citizens of 
 the same State claiming lands under grants of different States ; and 6, 
 between a State, or the citizens thereof, and foreign states, citizen, or 
 subject.' 
 
 § 20. The Supreme Court of the United States has original jurisdic- 
 tion in all cases affecting ambassadors, other public ministers, and con- 
 suls, and those in which a State shall be a party, and in all other cases 
 its jurisdiction is appellate. It would appear that in cases against a 
 foreign minister and against a State, and also in cases of admiralty and 
 maritime jurisdiction, the jurisdiction of the courts of the United States 
 must be exclusive. The other cases are cases of concurrent jurisdiction 
 on the part of the courts of the United States with the courts of the State, 
 at the option of the parties. But should a case be brought in the State 
 courts which makes a case proper for the jurisdiction of the courts of the 
 United States, under the Constitution and the act of Congress orgauizing 
 the judiciary, the party who may be desirous of having the benefit of 
 courts of the Union may, in some cases, have them removed and cer- 
 tified to the proper court ; and in other cases where there is question 
 proper for the determination of the United States courts, which has 
 been decided against such claim, it may be removed by a writ of error 
 to the United States court, and the question there reviewed." These 
 
 > By the 11th Amendment to the Const. U. S. no suit can be prosecuted 
 against a State by a citizen of another or foreign State. 
 
 2 See Curtis's Com. V. S. Courts, 264, ? 209, and the act of Congress called the 
 Judiciary Act of 1789. 
 
CHAP. II.] COVBTS AND THEIR JURISDICTION. 387 
 
 questions depend upon the provisions of the Constitution and the acts 
 of Congress passed in conformity with it, known as the judiciary acts. 
 
 § 21. The Constitution provides that the judicial powers of the 
 United States shall be vested in one supreme court and in such inferior 
 courts as Congress may establish ; and that the Supreme Court shall 
 exercise its appellate jurisdiction, with such exceptions and under such 
 regulations as Congress may make. Under these provisions, Congress 
 has organized its courts and fixed their jurisdiction so as to harmonize 
 with the State courts ; and have parceled out the cases and organized 
 their courts so as to give them original and exclusive jurisdiction, where 
 practicable, in those cases which arise directly and necessarily from 
 the Constitution and the laws of the United States. But in those 
 cases where it was difficult so to arrange the cases, and with a view to 
 interfere as little as possible with the original jurisdiction of the State 
 courts, and where the questions involved were only incidentally drawn 
 in litigation, the jurisdiction of the United States courts is exercised 
 only in an appellate form. The courts thus organized are principally 
 the district and the circuit courts of the United States. 
 
 § 22. Accordingly, the jurisdiction of the courts of the United States 
 has been thus parceled out: The Supreme Court, as the supreme judi- 
 cial court of the Union, has a very limited original jurisdiction, as has 
 been shown ; its principal jurisdiction is only as an appellate court in 
 relation to such cases as are given by the Constitution to the courts of 
 the United States ; and may be exercised in the manner pointed out by 
 the judiciary acts, — first, in reference to the inferior courts of the Union ; 
 and secondly, in reference to the courts of the State. The act provides, 
 in reference to the first, that the final judgments or decrees in civil 
 actions and suits in equity, in the circuit court, originally brought or 
 removed there from the State courts or a district court, where the mat- 
 ter in dispute exceeds two thousand dollars, may be re-examined and 
 reversed or affirmed in the Supreme Court upon a writ of error or ap- 
 peal, brought within five years after rendering the judgment or decree 
 complained of;' and, in reference to the second, that a final judgment 
 or decree in any suit, in the highest court of law or equity of a State in 
 which a decision of the suit could be had, where is drawn in question 
 any claim, right, or privilege under the Constitution, laws, or treaties 
 of the United States, and the decision of the question is against such 
 claim, right, or privilege, may, in the like manner, be re-examined in 
 the Supreme Court of the United States, upon a writ of error. But it 
 is to be observed that the Supreme Court does not so re-examine cases 
 from either class of courts unless the matter in dispute (exclusive of 
 
 I Act of Congress, Sept. 12, 1789, and March 3, 1803. Curtis's Com. U. S. 
 Courts, 216. 
 
CIVIL LA W. [book in. 
 
 the costs) exceed two thousand dollars; nor those from the State 
 courts, unless the question is decided against a claim set up in some 
 shape under the Constitution, or the laws, or the treaties of the TJnited 
 States. 
 
 § 23. The jurisdiction of the circuit court is not only confined to 
 such cases as may constitutionally come within those given to the 
 TJnited States, but also limited, in its original jurisdiction, to such civil 
 cases in law and equity as that the matter in dispute must exceed five 
 hundred dollars. This amount is not confined to the amount that 
 may be recovered, but the amount claimed in the declaration or peti- 
 tion as the value of the land or personal property as the matter in 
 dispute. Then, as to the character of the parties in such suits, they 
 must be either — 1, the TJnited States; 2, suits between citizens of dif- 
 ferent States ; 3, suits where an alien is a party ; and 4, a defendant 
 can only be sued in the district of his residence, or in which he may be 
 found at the service of the writ. Its appellate jurisdiction extends to 
 — 1, writs of error in civil causes ; and 2, appeals in admiralty or mari- 
 time causes ; to the district courts upon their final judgments or decrees, 
 to re-examine the same, where the matter in dispute exceeds fifty dol- 
 lars in value, exclusive of costs. The circuit court may also acquire 
 ' jurisdiction by the removal of an action from the State court to the cir- 
 cuit court. This may happen when the party claiming it is made a 
 defendant in the State court, notwithstanding he is a party entitled by 
 the Constitution and law to have hisjjase in the United States court, 
 and that the matter in dispute exceeds five hundred dollars, and applies 
 for such removal in due time, and gives requisite security that he will 
 comply with the law. 
 
 § 24. The district courts have jurisdiction in numerous cases, but 
 generally of minor importance. In civil cases it extends to (1) admi- 
 ralty and maritime causes ; (2) cases of seizure, and suited for penalties 
 and forfeiture incurred under the laws of the United States ; (3) cases 
 in which an alien sues for a tort, in violation of the laws of nations, or 
 of a treaty of the United States ; (4) suits instituted by the United 
 States ; (5) cases under the bankrupt laws of the United States ; and 
 (6) cases in equity upon motion to grant injunctions in cases in the 
 United States courts. 
 
 § 25. Thus, where a person has a cause of action which, on the account 
 of the character of the case, or his own character as a party, is within 
 the jurisdiction of the United States courts, and may be desirous of in- 
 stituting it there instead of the concurrent jurisdiction of the State 
 court, and if it be also one of those to which the district court has juris- 
 diction, he may institute it there ; and upon final decision may either by 
 an appeal or writ of error, in case the suit involves a matter of greater 
 value than fifty dollars besides costs, take the case into the circuit court 
 
CHAP. II.] COURTS AND THEIR JURISDICTION. 389, 
 
 for re-examination. In case the writ is decided against him in the cir- 
 cuit court, in case the matter exceed two thousand dollars in value, it 
 may, in like manner, be taken up to the supreme court. Where such 
 case was of the value of five hundred dollars, it might originally be 
 brought in the circuit court. Although these cases in the United 
 States courts require so many considerations and appear so formidable, 
 it is but seldom that they interfere wiVa ordinary litigation. The most 
 frequent cases are those between citizens of different States, wh.ere the 
 matter m controversy is of greater value than five hundred dollars, and 
 the plaintiff, a citizen of another State, is desirous" to seek the jurisdic- 
 tion of the United States court instead of the concurrent jurisdiction of 
 the State court ; or where they are cases occurring under the patent or 
 copyright law of the United States, or in cases in relation to bankruptcy. 
 
 § 26. But notwithstanding these specific and limited cases thus 
 given to the jurisdiction of the courts of the United States for the pur- 
 pose of preserving the Union, and a uniform course of decisions under 
 it, still, the courts of the State have a general and almost unlimited 
 jurisdiction in the administration of ordinary justice, and are seldom in- 
 terfered with by the limited jurisdiction bestowed upon the courts of 
 the Union. This jurisdiction of the State courts is parceled out to the 
 several grades of courts according to their importance. 
 
 § 27. Thus, as we have seen,^ in the administration of justice in the 
 Stttte, in matters of private and civil affairs, cases of ordinary and minor 
 importance are given to the justices of the peace as magistrates' courts, 
 who have in such cases an original jurisdiction, subject to the appellate 
 jurisdiction of the higher courts, by appeal and proceedings in error. 
 Then the court of common pleas has original jurisdiction in action 
 above those of the magistrates' courts, and appellate jurisdiction by ap- 
 peals and proceedings in error in cases from the magistrates' courts, 
 the probate court, and other inferior tribunals. The cases thus acquired 
 by the common pleas, after a final determination there, may be reviewed 
 on appeal or error in the district court, — a court of very limited origi- 
 nal jurisdiction. And finally, such of these cases as are of grave 
 importance may be taken into the supreme court of the State, as the 
 central and dernier or final resort in the State courts. The appellate 
 jurisdiction from thence by a writ of error to the Supreme Court of 
 the United States is very limited, confined to cases in which a claim 
 has been set up under the Constitution, or laws, or treaties of the 
 United States, and the final decision has been against such claim. 
 Where the matter in controversy was any other question than such 
 a claim, or where the question was decided in favor of the claimant, 
 there is no such appellate jurisdiction. 
 
 'Ante, B. i. ch. x. J 1-6 and 11-27. 
 
390 CIVIL LAW. [book iii. 
 
 ORGANIZATION OF COURTS AND THEIR MODE OF PROCEEDING. 
 
 § 28. It has been said that a court is the place where justice is judi- 
 cially administered ; but the essential part of the court is the judge, 
 or judges, and officers who, according to the Constitution and laws, 
 rightfully constitute the court and represent and exercise its powers. 
 These courts are organized and invested with more or les.s power and 
 importance, according to the position that is given them and the class 
 of cases and jurisdiction they occupy. For the purpose of bringing 
 justice home to every man's neighborhood, there are established numer- 
 ous courts of the justices of the peace, — usually known as magistrates' 
 courts, — having extensive original jurisdiction of cases of ordinary and 
 minor importance. They are courts of the first instance ; and where 
 cases are not determinated satisfactorily to the parties, they may be 
 taken up to the higher courts by some appellate proceedings. This 
 court is held by a single magistrate as the judge, without any other 
 officer, except the constable, as its ministerial officer, to serve its process. 
 Its only record consists of its docket, containing short entries, — a mere 
 journal of its proceedings. It states the name of the parties, — plaintiff 
 and defendant; — a summary statement or bill of particulars of the plain- 
 tiff's claim or cause of action ; the process or means by which the de- 
 fendant was summoned or brought into court ; his answer to the com- 
 plaint; the trial ; and then, upon hearing the proofs and allegations of 
 the parties, the court enters its judgment or final order. At the instance 
 of the parties the court may be aided in the trial by a jury of six men, 
 selected by the magistrate selecting eighteen good men of the neigh- 
 borhood, and from that list each party strikes out a name, alternately, 
 until each has so stricken out six names, — the six remaining names are 
 the jury. Although summary entries are made of all the proceedings 
 on the docket, — and without such written evidence of them thev would 
 be a mere nullity, — still, these courts and their proceedings are called 
 courts not of record, in consequence of their limited and informal en- 
 tries and records. 
 
 § 29. There are three separate courts in each county, whose jurisdic- 
 tion and proceedings are intermediate between those of the magis- 
 trates' courts and the supreme court of the whole State. These are 
 the probate court, the court of common pleas, and the district court, and 
 they are all courts of record. The jurisdiction of these courts, and the 
 manner in which they are constituted, have been already considered 
 under the head of the j.udiciary as a part of the organization of the gov- 
 ernment. The mode of proceeding in the progress of a suit before the 
 court will be a subject of consideration in the further progress of this 
 book. But there are some matters in relation to the organization of 
 courts, and their mode of transacting business, that should here be con- 
 
CHAP. II.] COUBTS AND THEIR JURISDICTION. 391 
 
 sidered as common to almost all courts of record ; some of which are the 
 positive law of the court, while others are dependent upon the usages 
 and customs of courts, and may be considered as their common law. 
 
 § 30. The court established by the constitution and laws has one or 
 more judges. When it is constituted of one judge, he must be present 
 and hold the court, or nothing can be done; for it is the universal rule 
 that a judicial officer cannot create a deputy, or delegate his power or 
 function to another as a ministerial officer may. But when the court 
 is constituted of a number of judges, it may proceed with its business 
 though a judge be absent, so that there be a quorum of the court 
 present. 
 
 § 31. Where a court or board of officers are created by law to per- 
 form some public duty, as a general rule a majority of them may do 
 and perform such duty; but a fair notice and opportunity must be 
 given to enable all to be present if they choose, or it should be per- 
 formed at a regular term or session. A majority of all may discharge 
 such duties at a regular session. But it is usual in all cases where a 
 court or commission is constituted, consisting of a number of persons, 
 for the law creating them to declare what number shall form a quorum, 
 and how many must concur in their determination in order to give a 
 validity to their order or judgment. Thus, for example, the constitu- 
 tion of Ohio declares^ that the district court shall be constituted of the 
 judges of the court of common pleas of the district (who are always 
 three, and sometimes a number more) and one of the judges of the 
 supreme court, any three of whom shall be a quorum.. When the court 
 is thus in session, unless it is otherwise determined by the law of their 
 organization, any question before them is determined by a majority of 
 those present. 
 
 § 32. The Ohio code provides that if the judge of a court having but 
 one judge, or if a quorum of the judges of any court having two or 
 more, fail to attend at the time and place appointed for holding their 
 respective courts, the sheriff shall have power to adjourn the court from 
 day to day ; and if the court is not convened within two days after the 
 first day of the term, then such court shall stand adjourned for the 
 term. The court when in session usually adjourns from day to day 
 until its business is finished; but when it adjourns without day, it is 
 an adjournment until another term of the court. 
 
 § 33. All the courts of record are usually organized with, and attended 
 by, a body of officers and attendants, as ministerial and executive officers, 
 to aid in the performance of their duties, and execute their orders. Of 
 these may be enumerated — 1. The clerk of the court, whose duty, as 
 the principal ministerial officer of the court, is to keep the journal of the 
 
 1 Art. iv. I 5. 
 
392 CIVIL LA W. [book ni. 
 
 court, in which is regularly entered all the judicial acts and determinar 
 tions of the court ; to make out the writs and the necessary process of 
 the court, and exemplification of the records, papers, and proceedings 
 of the court ; to keep and preserve in regular order the records and 
 papers of the court, and within a reasonable time thereafter make up a 
 full record of each case finally disposed of, from the papers and proceed- 
 ings of the court, as the final record of each particular case ; and finally, 
 as clerk of the court to perform such matters as the court may judicially 
 direct according to law. 2. Attorneys and counselors who have been 
 admitted by the supreme or district courts, to practice as such, upon 
 evidence of their having regularly and attentively studied the law for 
 at least two years under the guidance of a regular practitioner, and that 
 upon examination it appeared that they were persons of good moral char- 
 acter, and possessed sufficient legal knowledge and abilities to discharge 
 their duties. These persons, thus admitted, are permitted to act as 
 officers of the court, and as attorneys and counselors for the parties; to 
 appear and manage the causes of the parties in court as their respective 
 advisors. The parties are considered to have the right to conduct 
 their own cases in court without the aid of this profession, if they can, 
 and know how ; but if they employ others, they must be such as have 
 been found qualified and admitted for that purpose, so that the court 
 shall not be hindered and delayed by the want of skill and inexperience 
 of a new person in the case, who is not a party to the suit. 3. A 
 sheriff or marshal is also an essential officer of the court, as an executive 
 and ministerial officer of the court, to preserve order and execute the 
 orders and precepts of the court, and the writs legally issued by their 
 authority. These are authorized to call to their aid any number of 
 deputies necessary ; and whenever necessary, on account of resistance, 
 may call to their aid such citizens of the county or district as he deems 
 proper, who are bound to obey ; and this assistance is called the posse 
 comitaius, or the power of the county. 4. The court is also usually 
 attended by a crier and constables. The first to proclaim the commands 
 and proclamations of the court, call the parties, and the like. The 
 constables, to a necessary number, officiate as aids to the sheriff, attend 
 upon the court and the jury, when impaneled. 
 
 § 34. All courts have the right and authority to preserve order, to 
 punish contempts, and enforce obedience to their lawful authority. This 
 is necessary as a matter of self-preservation to the court, and as respect 
 to the dignity of the law and the administration of justice. For with- 
 out such competent authority to secure the administration of justice 
 from disobedience and contempt, both courts and laws would become 
 vain and nugatory. Courts, therefore, have power to suppress such 
 contempts and disrespects to the authority and orders of the court by 
 an immediate attachment of the offender, and by fine and imprisonment. 
 
CHAP. II.] COURTS AND THEIR JURISDICTION. 393 
 
 This is not only a common law right of the court,' but it is enforced and 
 aided by statute. 
 
 § 35. Proceedings for contempts may be had in two classes of cases : 
 1, where the offense is committed in the immediate presence and obser- 
 vation of the court ; and 2, where the matter complained of was com- 
 mitted outside of the court by some one connected with the court, as 
 officers or suitors, or was done in opposition or abuse of the just powers 
 and authority of the court. In the first instance, where the contempt 
 was committed in the presence of the court, the offender may be in- 
 stantly apprehended by order of the court, and fined or imprisoned, 
 without further proof or examination other than the facts and circum- 
 stances that have transpired under the observation of the court. 
 
 § 36. 2. But where the offense has been committed out of the pres- 
 ence and observation of the court, then the proceedings are not in a 
 summary manner ; but the court then proceed with more caution, and 
 require regular proceedings against the offender, which are commenced 
 by affidavits setting forth the offense ; and the court being satisfied 
 that the offense is one against which they may in this manner legally 
 proceed, will order an attachment for contempt to issue against the 
 offender ; or order a rule to be served on the defendant to show cause, by 
 a given time, why such attachment should not issue. One or the other 
 of these courses will be adopted, dependent upon the character of the 
 case and the discretion of the court. When the defendant appears in 
 court to answer the complaint, either upon the attachment or other- 
 wise, he is considered in custody, and subject to the order of the court. 
 Usually interrogatories are then filed, in the nature of charges and 
 accusations against him, which he may answer under oath, and excul- 
 pate himself if he can. The whole matter, both as to the accusation and 
 any question that may be raised upon the answer by way of pleading, 
 must be determined by the court, and the defendant acquitted or pun- 
 ished, as the court, in the exercise of a sound judicial judgment, may deem 
 that the nature of the case and the due administration of justice demand. 
 
 § 37. The jurisdiction of courts in proceedings for contempts are 
 limited to a class of cases, and based upon the principle of its necessity 
 for the preservation of the due administration of justice, and therefore 
 more extensively exercised by the superior courts, who have a more 
 extensive jurisdiction and supervision over other courts than by the 
 inferior courts. The contempts that are thus punished are either such 
 as are direct, and openly insult or resist the powers and authority of 
 the court or the judges that preside ; or such as are consequential, 
 but plainly tend to create a universal disregard of their authority, and 
 bring the administration of justice into contempt. The most of such 
 
 > 4 Stephens's Com. 351 ; 4 Blackst. Com. 384. 
 
394 CIVIL LA W. [book ni. 
 
 acts are also punishable as a public offense by an indictment in the 
 criminal courts ; and where it is thus punishable, and not in the pres- 
 ence and observation of the court, or directly interfering with the action 
 or business of the court, it may perhaps be more judicious to leave the 
 offense thus to be punished, unless it be in the superior courts. 
 
 § 38. The statute of Ohio' provides that the power of the several 
 courts to issue attachments and inflict summary punishments for con- 
 tempts of court shall not be construed to extend to any cases, except to 
 the misbehavior of any person in the presence of the court, or so near 
 thereto as to obstruct the administration of justice; or the misbehavior 
 of any of the officers of the court in their official transactions, and the 
 disobedience or resistance, by any officer of the court, party, juror, wit- 
 ness, or any other person, to any lawful writ, process, order, rule, decree, 
 or command of the court, — which charge shall be stated in writing, and 
 the accused shall be heard in his defense by himself or his counsel. 
 
 § 39. This law of Ohio but little varies the law upon the subject as 
 it has been elsewhere judiciously administered ; but under it the 
 supreme court has held that the word charge, in the concluding clause 
 of the section, refers to contempts generally, whatever they may be, 
 as defined in the section ; and such charge must be stated in writing, 
 and the accused have an opportunity to be heard in his defense, before 
 a final sentence or judgment can be legally given against him ; unless 
 he do some act which may be fairly held a waiver of the formalities 
 thus prescribed for his benefit. But these formalities do not apply to 
 summary verbal orders of arrest for misbehavior in the presence of the 
 court, or "so near thereto as to obstruct the administration of justice;" 
 nor to cases of attachments in the nature of mesne process, or to hold- 
 ing him in custody, until the prescribed formalities can be instituted.' 
 
 MODE OP ADMINISTERING JUSTICE. 
 
 § 40. The court upon being assembled, and proclamation made that it 
 was then opened and ready to attend to business, will call over the 
 docket of the cases prepared by the clerk, hear motions, and ascertain 
 which of the cases set for the day is ready for trial. Those cases that 
 are at issue upon question of law are heard and determined by the 
 court; but an issue of fact arising in an action is to be tried by a jury, 
 unless the parties waive the right of trial by a jury, or agree to submit 
 the determination of the case to a reference. When the questions of 
 facts are settled by the verdict of the jury, or by reference, or by the 
 court, the court will then determine the whole case by a judgment, set- 
 
 1 February 24, 1834. 1 Curwen, 122. 
 
 2 Lowe, vs. State, 9 0. S. K. 337. See Baldwin vs. State, 11 0. S. K. 681. A 
 case said not to be within the statute. 
 
CHAP. 11.] COURTS AND THEIR jurisdiction: 395 
 
 tling the rights of the parties according to the law of the case so made 
 before them. la so doing, the court is bound to preserve a strict impar- 
 tiality between the parties, both in its charge to the jury and in deter- 
 mining the case upon the law and facts found. And in so doing, it is 
 the duty of the judge to administer the law, without reference to bis own 
 individual opinion as to the propriety of the law; for that is a question 
 which addresses itself to the legislative power, and not to the judiciary. 
 
 § 41. Courts thus organized have their well-established rules and 
 mode of administering justice. One of the first principles to be ob- 
 served is, that the court must not determine a case until the proper par- 
 ties have been brought before them, or have been duly summoned; for 
 it is a long-established rule, founded upon the profoundest principles of 
 reason and justice, that no one should be punished or deprived of his 
 property in any judicial proceeding, unless he has had an opportunity 
 of being heard.' " The law of both God and man," said an English 
 judge, "give the party an opportunity to make his defense, if he has 
 any." Therefore, in every new proceeding, or the starting anew upon 
 an old case which has been determined, as scire facias, to revive ; or a 
 ■writ of error ; or a matter that is ordered to be done in the future, and 
 some proceedings are had upon the default, the opposing party should first 
 have due notice given him, by summons or otherwise, as the law directs, 
 so that he may have an opportunity to answer the complaint if he will. 
 
 § 42. It is also a fundamental rule that "no man can be a judge in 
 his own cause." It is of the utmost importance that this maxim should 
 be held sacred.'' And this is not confined to a case in which he is a 
 party, but operates in every case in which he has an interest. For 
 often have the proceedings of inferior courts been set aside because an 
 individual, who had an interest in the cause, had taken a part in the 
 decision. The principle does not, however, apply to a case where the 
 party knowingly waives the objection ; as where a party submits the 
 case to an award, where the situation of the arbitrator or referee was 
 known ; for the party by his own agreement have submitted the case 
 to a tribunal of his own choosing ; though ordinarily, it would be con- 
 trary to reason that even an arbitrator should be a judge in his own 
 cause. Nor does the objection prevail where a judge sits on the bench 
 during the progress of the trial of a case in which he had an interest, but 
 took no part in its trial and decision. 
 
 § 43. It is also a maxim of the law, applicable here, that an act of the 
 court or of the law shall prejudice no one. This is founded upon jus- 
 tice and good sense, and affords a safe and certain guide for the admin- 
 istration of the law. Thus, where a case was, at the instance of the 
 
 J Broom's Max. 79 [108] : " No man should be condemned unheard." 
 2 Broom's Legal Max. 83 [113], and n. 5. 
 
396 CIVIL LA W. [book hi. 
 
 court, for the want of time, ordered to stand over from term to term for 
 judgment on the arguments, where the party in the mean time had died, 
 the court said the party ought not to be prejudiced by the acts of the 
 court,' and permitted judgment to be entered retrospectively, nunc pro 
 tunc, of a date when he would not be prejudiced by the act of the court. 
 So where the law requires a bill of exception to be allowed during the 
 term of the trial, which was presented during term but continued by the 
 court for consideration, the party is not to be prejudiced by a delay at 
 the instance of the court. 
 
 § 44. The final act of the court, in the determination of a case before 
 them, is the pronouncing and entering up their judgment in the contro- 
 versy between the parties. This judgment " is constructed of certain 
 materials which are law, and is, when delivered, part of the law of the 
 land."^ These materials here, are — 1, the Constitution of the Union, 
 and the laws and treaties of the TJnited States made in pursuance of it ; 
 2, the constitution and laws of Ohio ; and here it may be observed, that 
 the court in constructing their judgment are bound to make it consistent 
 and harmonize with the Constitution and laws of the United States and 
 the constitution of the State ; therefore, wherever a statute of the State 
 comes palpably in conflict with these, it is the duty of the court to hold 
 so much of the statute as a nullity f 3, the reported cases of the superior 
 courts, that may be considered applicable and to the point to the case 
 under consideration ; 4, the law of nature, morality, and religion, 
 common sense, legal reason, and whatever else goes to establish the 
 great principles of universal justice ; 5, the common law and usages of 
 the country ; and 6, where all these materials fail in establishing the 
 principles upon which the case should be decided, and is therefore called 
 a new case or one of the first impression, the court have no right, for 
 this reason, to throw it aside, but must proceed to decide the case upon 
 principles that are in harmony with these materials that have been already 
 considered ; and as assistance to its reason and judgment the court may 
 call to its aid the laws and decisions of other States or countries — as the 
 common law of England or the civil law of the Romans, that may be 
 consistent and in harmony with our own laws and institutions. 
 
 § 45. But in preparing the way, and thus constructing its judgment, 
 there is no one duty so imperative upon the court as that of attentively 
 hearing the case and the arguments of counsel ; so that the parties may 
 complacently say that though their case was decided against them, and, 
 as they believed, wrongfully, yet it was patiently and attentively heard 
 
 • Broom's Legal Max. 86 [116], and n. 2. See also "Western Law Journal, 
 November number, 1859, p. 644. 
 
 ' See Bam's Science of Legal Judgment, a most profound and interesting work 
 on jurisprudence. Law Library, vol. ix. July, 1835. 
 
 » 1 Kent's Com. 
 
CHAP. III.] ACTIONS. 397 
 
 and well considered. Tor it is not only the duty of the court to con- 
 struct and render their judgment upon true legal principles, but as far 
 as possible to give satisfaction to the parties ; and a conviction that, so 
 far as human capacity was concerned, the law was honestly and faith- 
 fully administered. And for this purpose the decisions in each case 
 must be uniform and consistent with each other, and consistent and 
 uniform with the practice and rules of the court. 
 
 CHAPTER III. 
 
 ACTIONS. 
 
 § 1. When a civil wrong is complained of, which has not been re- 
 dressed and satisfied by the acts of the parties or the law, in the manner 
 already treated, the law assumes to afford redress by proceedings in 
 court ; for it is a maxim in the law, that in the proper court there is to 
 be had an appropriate remedy for every civil injury. These appropriate 
 remedies, and the mode of applying for and obtaining them, are classi- 
 fied and arranged in the law according to their nature and the natural 
 division of rights and wrongs, and are denominated cause of action ; 
 which is the facts and circumstances constituting the ground of the in- 
 jury complained of, as the foundation of the action. 
 
 § 2. An action is the proper demand of redress, in a court of justice, 
 of some injury to our just rights ; and the right of action is the legal 
 right to prosecute such demand to a recovery and satisfaction.* When 
 such right of action has not been redressed and satisfied, the courts will 
 aid in effecting the proper redress by means of an action properly 
 adapted to the Injury received. The different forms of action are classi- 
 fied and arranged as they are adapted to remedy the different modes of 
 injury ; and this is done as well for the convenience of the parties 
 as that of the court; as in all sciences, subjects are classified and ar- 
 ranged according to their differences and natural divisions. For the 
 same reason the applications to judicial courts for the redress of civil 
 injuries are classified and arranged in different forms of action according 
 to the nature of the several cases. 
 
 § 3. A civil action is one prosecuted for the recovery of a right, or 
 the redress of an injury to our civil or private rights, as contradistin- 
 guished from public wrongs or crimes. It is the suit prescribed by law 
 for the recovery of what is due, either as the thing itself, or damages 
 
 ' See Cooper's Justinian, 326, lib. iv. tit. vi. 
 
398 CIVIL LA W. [book in. 
 
 for the wrong in satisfaction of the injury. All civilized countries' have 
 had, in their judicial proceedings, different forms of action, or suits, 
 adapted to the redress of the various subject-matters of complaint.' 
 
 § 4. According to the English common law, actions were divided into 
 real, personal, and mixed actions. Real actions are such as concern 
 real property only, and in which the plaintiff claims the recovery of 
 specific lands, tenements, or hereditaments. Personal actions are those 
 in which a person claims either satisfaction in damages for some injury 
 done to his person or property, or the recovery of some specific personal 
 property. Mixed actions are such as partake of the nature of the other 
 two, wherein some real property is demanded, and also personal 
 damages for the injury sustained. But these partake, in the main, of 
 the character of real actions, and are often so called by the best au- 
 thors.' The damages and costs might well be considered as a mere 
 incident to the real action, and therefore they might properly be divided 
 only into personal and real, as property and rights have already been 
 so divided, and which actions are only intended to secure. 
 
 § 5. Our notion of actions have been derived from the common law, 
 and it will be well to consider how these actions are treated by the 
 common law before considering them as modified by our statute and 
 code. 1. Real and mixed actions, which have not there become obso- 
 lete,* are dower and ejectment. The point is where a married woman 
 has become entitled to dower that is withheld from her ; and the last, 
 where the object is to recover land where the possession has been im- 
 properly withheld from the plaintiff. 2. Personal actions are again 
 divided as they are founded, either on contracts or on torts, as has 
 already been observed f and those founded on contract are denominated 
 actions ex contractu, and those on torts as actions ex delicto. The 
 forms of personal actions that remain in use are assumpsit, covenant, 
 debt and detinue in form ex contractu ; and trespass, trespass on (he 
 case, detinue, and replevin in form ex delicto. The first class was 
 founded on contracts, the second on torts. 
 
 § 6. Of the first class, assumpsit might be sustained by the plaintiff 
 for any breach of contract by the defendant, expressed or implied, by 
 
 1 See above, Justinian's Inst. lib. iv. tit. vi.; 3 Blackst. Com. 116; Co. Litt. 285; 
 3 Bouv. Inst. 127. 
 
 2 The terms action, suit, cause, or cff.se, are all very nearly synonymous, but 
 each has an appropriate application. A person commences his action ; prosecutes 
 his suit ; brings his case to trial ; and the judgment terminates the cause. In a 
 notice of set-off, the formula speaks of the commencement of the suit ; the trial 
 of the cause ; bar of the action, and party to the case. So we frequent every ac- 
 tion at law and suit in equity. 
 
 » See 3 Stephens's Com. 459, and n. g. « Ibid. 459. 
 
 » Bee ante, B. iii. ch. i. g 1-7. 
 
CHAP. III.] ACTIONS. 899 
 
 parol or ia writing not under seal ; or, where the defendant, by any 
 means (even by means of a tort), had become possessed of money to 
 which in equity and good conscience, equo el bono, the plaintiff was en- 
 titled ; for in such case this action will lie in his favor upon the implied 
 promise that the law in such case will raise in his favor. Covenant is 
 the appropriate action where damages are sought for the breach of a 
 covenant, that is, by an agreement under seal or deed. Debt lies where 
 the object is the recovery of a debt, that is, a certain sum of money 
 alleged to be due the plaintiff upon some promise expressed or implied, 
 and that may be a writing under seal upon which assumpsit would not 
 lie. Detinue ex contractu} was the proper remedy where personal prop- 
 erty was unlawfully detained which was originally obtained by contract. 
 
 § 1. Of the second class, or those founded upon torts, ex delicto, ires- 
 pafiS was brought where the defendant had committed an injury to the 
 plaintiff's person or property, either real or personal, by some direct 
 and immediate force or trespass, and usually denominated trespass vi et 
 armis ; in case of a battery or false imprisonment, and where the act 
 was direct and immediate, the force would be implied, as in the case of 
 an unlawful but peaceable entry upon the plaintiff's land. The action 
 on the case was the proper remedy in every case, where damages were 
 claimed for an injury to person or property not committed by direct force, 
 but the injury accruing consequentially, and the cause was not within 
 the relief of one of the other actions. Detinue in form ex delicto, was 
 maintained where person or property was unlawfully delivered and 
 tortiously taken, which distinguished it from detinue in the other form. 
 The action of replevin, as maintained at common law, was of but 
 limited relief compared with that action as used in this country. It is 
 an action to recover (to replevy) specific personal property ; but at com- 
 mon law could only be maintained where there had been a tortious 
 taking, or the property had been taken under distress for rent and 
 wrongfully withheld. Here the action of replevin is sustained without 
 question as to the original taking, whether by contract or tort, when- 
 ever the possession of personal property is lorongfully detained from 
 the plaintiff, and therefore answers the purpose of both replevin and 
 detinue as at common law.^ 
 
 § 8. It is observable from this that actions are subject to the distinc- 
 tion of being brought either for the specific recovery of property, or fur 
 damages. As in the foregoing statement of the common law action, 
 dower and ejectment were brought for real property specifically, and 
 replevin and detinue for specific personal property ; and all the other 
 actions were only to enable the plaintiff to reco^rer damages {i.e. pecu- 
 
 1 3 Bouvier's Institutes, 638. 
 
 « See. Cooper's Justinian, lib. iv. tit. vi., ns to the diffurent forms of action 
 according to the civil law. 
 
400 CIVIL LAW. [book hi. 
 
 niary compensation) in satisfaction of the injury of which he com- 
 plained. This distinction must necessarily exist in the judicial and 
 remedial laws of all countries. It existed in the Roman civil law, in 
 the English common law, and in our own. Where damages are to be 
 recovered, the action may be maintained upon the technical wrong and 
 presumed injury, though no appreciable damages have been actually 
 sustained ; it being necessary to establish and preserve the right itself, 
 and that its invasion should not be with impunity, though sustained by 
 nominal damages only, — as in the case of trespass where no material 
 damage was sustained. 
 
 § 9. Actions are further distinguished as being either local or tranai- 
 tory, — the former being founded on such causes of action as necessarily 
 refer to land, or something fixed, to a locality, as in the case of trespass 
 i to land ; or cases seeking to subject lands or tenements or some fixed 
 property to some liens or claims; the latter being founded on such 
 causes of action as may take place anywhere, and have no necessary 
 connection with any particular locality, as trespass to the person or 
 personal property, or actions upon contracts that may be satisfied in 
 damages, and are therefore merely transitory and not necessarily con- 
 nected with any locality. 
 
 § 10. Again, actions are distinguished as actions in personam, or in 
 rem, as they are proceedings intended to enforce a claim against the 
 person, or against the thing itself independent of the person. Of this 
 class are all actions in which the plaintiff only seeks to recover a judg- 
 ment for the payment of damages against the defendant; of the second 
 are those actions in which the proceedings seek to subject the thing 
 itself to some claim or lien without reference to the person of the owner ;^ 
 but there are some actions that partake of the nature of both classes, 
 and are of the mixed character of both, as proceedings to foreclose a 
 mortgage on land. This distinction is principally material in reference to 
 the service of process on the defendant to make him a responsible party 
 to the proceedings in the suit, as in cases of attachment and the like. 
 
 §11. Such were the different forms of action as known in the com- 
 mon law of England in recent times ; and which had been very gen- 
 erally adopted in this country, throughout the Union, and formed the 
 basis of our practice until, unfortunately, what is called the code was 
 adopted in New York and Ohio. In our State, previous to the code, 
 our forms of action by our practice and statutory amendments, were so 
 improved as almost to become perfect, and very little more would render 
 them entirely so. These distinctions in the actions are so founded 
 in the very nature of the thing that with a code or with no code the 
 distinction and differences in the various actions must necessarily exist, 
 
 • See ante, book iii. ch. ii. g 12-16. 
 
CHAP. III.] ACTIONS. 401 
 
 aad must be studied and understood. The student must not only study 
 the code, but must study and understand the common law, in order 
 to master and understand the code itself. The improvements made 
 by the statute were principally the abolishing the distinction between 
 the action of trespass and trespass on the case, so that one action-case 
 was sustained for all injuries in tort, without distinguishing in the form 
 of the action between injuries committed with or without force. The 
 next improvement was the remodeling the action of replevin, so that it 
 was sustained where personal property was wrongfully detained from 
 him who. was legally entitled to possession; so that it answered the 
 purpose of both replevin and detinue as used at common law. If to 
 this there had been added one action for all causes of action arising ex 
 contractu, the thing would have been perfect. 
 
 § 12. These distinctions, derived from the common law, between the 
 several actions and causes of .action, are so founded in the nature of 
 the subject that they will and must necessarily exist under the code 
 as at common law; that is — 1, between those founded upon torts and 
 those upon contracts ; 2, between those that are personal actions and 
 those that are real ; 3, between those where damages are sought as sat- 
 isfaction for the injury and those where a specific thing is sought to be 
 recovered ; 4, between those that are local and those that are transi- 
 tory ; 5, between those actions that are proceedings in personam and 
 those that are in rem. A law that would give us one action, as upon 
 tort, in all cases ex delicto; another, as upon contract, in all cases ex con- 
 tractu ; a third, as replevin, in all cases to recover specific personal 
 property ; and a fourth, as ejectment, to recover specific real property, 
 with set-off of all claims founded in contract, expressed or implied, in 
 actions upon contract, but no set-off in action upon tort, would give 
 us all that is desirable. And then, where these four different forms of 
 action did not afford a plain and adequate remedy at law, there should 
 be a relief by a suit in equity. This would give us a system of- action 
 that would preserve natural legal distinction, and be infinitely superior 
 to that of the code. The difference in the mode of proceedings, the 
 relief, and the manner of applying that relief, in cases at law and those 
 in equity, should keep actions at law and suits in equity separate and 
 distinct from each other, though within the jurisdiction of the same 
 court, or all distinctions that science require, as to law, may be and are 
 disregarded and confounded. 
 
 § 13. The code declares (§ 8) that "the distinction between actions 
 at law and suits in equity, and the forms of all such actions and suits 
 heretofore existing, are abolished, and in their place there shall be here- 
 after but one form of action, which shall be called a civil action." ^ 
 
 1 Code, tit. i. J 3. 
 26 
 
402 CIVIL LA W. [book hi. 
 
 " (§ 80.) The plaintiff may unite several causes of action in the same 
 petition, whether they be such as have heretofore been denominated 
 legal, or equitable, or both, when they are included in either one of the 
 following classes : 
 
 " 1. The same transaction, or transactions connected with the same 
 subject of action. 
 
 " 2. Contracts, expressed or implied. 
 
 " 3. Injuries, 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 withholding thereof, and the rents and profits of the same. 
 
 " 7. Claims against a trustee, by virtue of a contract or by operation 
 of law." 
 
 " (§ 81.) That causes of action so united must affect all the parties to 
 the action, and not require different places of trial. "^ 
 
 § 14. Here the code, under the pretense of abolishing all forms of 
 action, and distinction between actions at law and suits in equity, fur- 
 nishes seven new rules of classification of actions, and absolutely requires 
 full knowledge of the common law and its distinction and classification 
 of actions, in order to understand them. The student is referred to the 
 code itself for further enlightenment and appreciation of the simplicity 
 it produces in the knowledge of actions and the practice of law ; but let 
 him be assured that the more he knows of actions, as they were at com- 
 mon law, the better prepared will he be to meet and understand them 
 under the code. 
 
 § 15. Notwithstanding the seeming indifference with which the code 
 jumbles all forms of action, yet throughout the code and the decisions 
 of the court under it, the existence and distinction of the usual and well- 
 known forms of action are fully admitted and recognized. The supreme 
 court, in relation to the above classification of actions made by the code, 
 said that class 1 " includes causes of action legal and equitable, ex con- 
 tractu and ex delicto. But if the causes of action do not arise from 
 the same transaction or transactions connected with the same subject 
 of action, then the causes of action ex contractu cannot, in general, be 
 united with causes of action ex delicto."'' And the code provides (in 
 § 97) "that a set-off can only be pleaded in an action founded on con- 
 tract, and must be a cause of action arising upon contract or ascertained' 
 by the decision of the court." The code also provides for a counter 
 claim, which is declared to be a cause of action existing in favor of the 
 defendant and against the plaintiff, between whom a several judgment 
 
 1 Code, tit. vi. I 80, etc. » Sturges vs. Burton, 8 O. S. E. 218. 
 
CHAP. III.] ACTIONS. 403 
 
 might be had in the action, and arising out of the contract, or transac- 
 tion, or subject of the plaintiff's action. A set-off must be in an action 
 ex contractu only, and itself a contract ; a counter claim may be in any 
 form of action, so that it arises out of, or is connected with, the subject 
 of the plaintiff's action.^ 
 
 SPECIAL ACTIONS AND EEMBDIES. 
 
 § 16. Besides these common actions, applicable to all ordinary cases, 
 there are certain special actions and remedies provided for and regu- 
 lated by statute, which require next to be considered. Of these should 
 be noticed—:!, partition ; 2, dower ; 3, waste ; 4, attachment for credi- 
 tors ; 5, divorce and alimony ; and 6, bastardy. Proceedings in these 
 cases are so entirely dependent upon the statute, or so modified from 
 the common law, that they require a separate consideration from the 
 ordinary action at law, though partition, dower, and waste are real 
 actions, and might be classed as such with the action of ejectment. 
 
 § It. 1. Partition is the action and proceedings that may be had 
 where a person holds lands or tenements by some united and undi- 
 vided interest and title with others, as coparceners or tenants in com- 
 mon-, and demands a partition and separation of the right and possession 
 of each, and for that purpose brings his action. It therefore may well 
 be classed as a real action, — local in its character, specific in its object; 
 and in its prosecution the proceedings partake of the nature of those in 
 rem. The plaintiff files his petition in the court of common pleas of 
 the proper county, in which ho sets forth certain united and undivided 
 title and interest he has in certain described lands and tenements which 
 he holds as coparcener or tenant in common with other persons whom 
 he names and describes, the title and interest of each, and makes them 
 defendants, and demands partition and the assignment of the interest of 
 each in severalty, and accordingly prays the action and judgment of the 
 court. The petitioner, upon the filing of his petition, may, at his option, 
 serve process on the defendants, either by personal notice in writing, 
 or by an advertisement in some newspaper of general circulation in the 
 county, at least forty days before the next term of the court. If there 
 be a widow who is entitled to dower in the premises not yet assigned, 
 she should be made a party ; and if any be minors, their guardian is 
 specially empowered to act for them in procuring partition. There may 
 or may not be any opposition, and answer or pleadings on the part of 
 the defendants, as in other cases ; but on the hearing they will, upon 
 being satisfied of the plaintiff's claim, and that the proceedings have 
 been properly had, order partition to be made, and a writ to issue ac- 
 
 • See Swan's Pleadings and Practice, 258. 
 
404 CIVIL LA W. [book hi. 
 
 coi'dingly. The writ commands the sheriff to cause the partition to be 
 made in accordance with the finding of the court, by three disinterested 
 freeholders of the vicinity, named by the court, and acting under oath. 
 In doing so, they are to take into view the actual situation and improve- 
 ments of the whole premises, and partition and assign to each, in sever- 
 alty, a just and fair proportion. But in case the premises is such that 
 partition of it cannot be made without injury to the whole, thp commis- 
 sioners so report; and whatever their proceedings may be, they are re- 
 turned, with the appraised value of the premises, to the court. Upon 
 the return, the court being satisfied that all has been properly done, the 
 same is confirmed. If the return be that the partition cannot be made, 
 any one or more of the co-tenants may elect to take the whole at the 
 appraised value, and the others their proportion of it, in which case the 
 court will order the sheriff to execute a conveyance accordingly. But 
 in case the premises is not so taken, it is ordered by the court to be sold 
 by the sheriff, as in cases of executions at law, at not less than two- 
 thirds of the appraised value. In case there were dower to be assigned 
 it would have been the duty of the commissioners, in accordance with 
 the command of the writ, first to assign the same as in other cases of 
 dower. 
 
 § 18. 2. Dower is where a widow is entitled to this estate, and the 
 heirs neglect to assign it ; she may then bring her action to compel it 
 to be done.^ In that case she files her petition in dower, making the 
 heirs, or those who are in possession and have title to the land, defend- 
 ants, as in other cases, setting forth her claim in the land described as 
 widow of her deceased husband who had been seised of the land, and 
 praying that her dower may be duly. assigned in the premises. The 
 defendants, upon being duly summoned, may answer the petition, and 
 set up any legal defense that they may have to the same. On hearing, 
 the court, in case they find the matter in favor of the petitioner, direct 
 an order to be issued to the sheriff to cause the dower to be set-off by 
 three disinterested men under oath ; and, on the return, if the proceedings 
 are approved by the court, a writ of seisin is issued, by virtue of which 
 the demandant is put into possession.'' 
 
 § 19. 3. Waste was an action specially regulated by statute,' and now 
 in some measure superseded by the code. It is an action to redress an 
 injury done by spoil or destruction to houses, woods, lands, or other 
 corporeal hereditaments by the tenant, to the injury of him who has the 
 estate in reversion or remainder ; and it may be done either voluntarily 
 or permissively, as by injury or destruction to houses, woods, and the 
 like ; or negligently, by omitting necessary repairs, so that injury and 
 waste take place for the want of it. Whatever does a lasting damage 
 
 1 See Stat. * See Dower, ante, B. ii. ch. iii. § 25-32. » Stat. 
 
CHAP. III.] ACTIONS. » 405 
 
 to the freehold or inheritance is waste, whether suffered by commission 
 or omission. If a house be destroyed by tempest, lightning, or the like, 
 which is the act of Providence, it is no waste ; but otherwise, if the house 
 be burned by the carelessness or negligence of the tenant. 
 
 § 20. But a tenant in fee, whether fee-simple or fee-tail, as his estate 
 is created as an estate of inheritance, is not impeachable for waste ; nor 
 is a tenant for life where the lease expressly exempts him to be " with- 
 out impeachment of waste." The most usual cases of waste are against 
 tenants in dower or by curtesy, or lessee for life or for years ; and the 
 usual objects of waste are houses, timber, and land, but it includes what- 
 ever is injurious to him who has the next estate, not by possibilily but 
 by a fixed right. 
 
 § 21. The usual remedy has been by an action on the case for waste 
 to recover such damages' as had been sustained; or by a petition in 
 equity to enjoin the waste and other relief. But now the code provides 
 that the action of waste is abolished ; but any proceedings commenced, 
 or rights acquired, shall not be affected thereby : and where the action 
 of waste is specially mentioned and authorized in any statute, it may be 
 used until otherwise provided ; but it shall be commenced and pro- 
 ceeded in throughout in the manner prescribed for the civil action of the 
 code. Wrongs heretofore remediable by actions of waste, are subjects 
 of action as other wrongs, and the same relief shall be granted as may 
 now be granted under the action of waste. 
 
 § 22. 4. Attachment against absent and absconding debtors as regu- 
 lated by statute before the code, was a proceeding in imitation of pro- 
 ceedings by foreign and domestic attachment in London. The statute 
 enables a creditor, in cases upon contract, to file his affidavit (by himself 
 or agent), stating that the debtor was a non-resident of the State, and 
 was justly indebted to him, or was about to leave the jurisdiction, or 
 convert his property to injure and defraud his creditors, and other like 
 cases of wrongs mentioned in the statute ; the creditor, as plaintiff, was 
 authorized to have process of attachment issued against such debtor as 
 the defendant in the case, to attach the goods and chattels, claims and 
 credits, lands and tenements of the defendant, and hold the same sub- 
 ject to the further order of the court in the case. It also aut£orized 
 process to garnishee any person who was the debtor of the defendant or 
 held effects of his in his hands as trustee or otherwise. The defendant 
 was then made a party to the proceedings by publication in the news- 
 papers, as required by the statute ; and at the same time notice was 
 given by a like advertisement to the creditors of the defendant generally, 
 60 that they might come in the same case, and file a declaration on any 
 claim in contract that they had against the defendant in attachment. 
 
 1 3 Stephens's Com. 503. 
 
406 * CIVIL LAW. [book m. 
 
 This publication and notice, and the attachment of property or credits 
 of the defendants when proved in court, made him party defendant in 
 the suit, and gave jurisdiction to the court, as though his appearance 
 were actually entered, and also gave notice for all creditors who might 
 have claims to file their declaration in the case against the defendant. 
 
 § 23. Upon the return of the attachment and process, the defendant was 
 called in court, and defaulted at three different terms ; and then, if he did 
 not appear and plead to the declarations filed against him, judgments 
 were taken in the several cases by default. Upon which the attached 
 property is, by order of the court, sold and converted into money, and 
 the avails, after paying costs, were distributed, pro rata, among the 
 judgment creditors under the attachment. This was a just, equitable, 
 and necessary proceeding in cases where the defendant had absconded, 
 or was a non-resident of the State, so that process of .summons could 
 not be served ujion him. 
 
 § 24. But under the code, attachment is made one of the " provisional 
 remedies," as auxiliary proceeding in the action, and cannot operate as 
 an equitable proceeding in favor of all creditors, but against them, and 
 only in favor of the individual plaintiff who first attaches, who is in- 
 duced to be first for fear that some other person, in time of difficulty 
 and trouble, may get ahead of him in winding up the defendant's business. 
 
 § 25. The code provides' that the plaintiff in a civil action for the 
 recovery of money may, at or after the commencement thereof, have an 
 attachment against the property of the defendant, upon grounds therein 
 stated, enumerating nine in number, among which are — the defendant, 
 or one of several, is a foreign corporation, or non-resident of the State; 
 or has absconded, with intent to defraud his creditors; or has left the 
 county of his residence to avoid service; or is about to remove his 
 property out of the jurisdiction, to defraud his creditors, etc. 
 
 § 26. The code does not confine this proceeding to claims upon con- 
 tract, except in cases against foreign corporation or non-resident of the 
 State. And it will be observed that the process is not for the com- 
 mencement of the action ; but it is an order in the action for the seizure 
 of the debtor's property, in the nature of bail for the payment of the 
 judgment, the plaintiff may recover. It may issue at the commence- 
 ment of the action, or at any time afterward.' 
 
 § 27. The order of attachment is obtained from the clerk of the court, 
 upon filing in his office an affidavit of the plaintiff, his agent or attorney, 
 showing — 1, the nature of the plaintiff's claim; 2, that it is just; 3, 
 the amount he believes ought to be recovered ; and 4, the existence of 
 some one of the grounds for an attachment enumerated.' In all cases, 
 except where the defendant is a foreign corporation or non-resident 
 
 ' Code, 2 191. 2 Houghton vs. Ault, 16 Howard's E. 77. = Code, I 192. 
 
CHAP. III.] ACTIONS. 407 
 
 (when no security is required), the order shall not issue until there has 
 been executed in the clerk's oEBce, by one or more sufBcient sureties of 
 the plaintiff, to be approved by the clerk, an undertaking, in double the 
 amount of the claim, that he shall pay the defendant all damages which 
 he may sustain by reason of the attachment, if wrongfully obtained. 
 
 § 28. The sheriff, under the order, attaches, as commanded, what 
 property he can find of the defendant's, which he holds as directed by 
 the code, for the purpose of applying it to the satisfaction of the plain- 
 tiff's judgment, if he recovers. any. In the same manner, there may be 
 other orders, in favor of other plaintiffs, which are all served in the 
 same manner ; but they have priority of lien according to their issuing ; 
 .so that each one only realizes what is left after the previous one is fully 
 satisfied. 
 
 § 29. The code provides also for proceedings to attach .credits and 
 property in the hands of garnishees ; that the death of the defendant in 
 attachment shall not abate the action ; and also for an attachment 
 before the debts are due in cases where the debtor is guilty of fraudu- 
 lent conduct for the purpose of defrauding his creditors and preventing 
 the collection of his debts. 
 
 § 30. 5. Actions for divorce and alimony are governed entirely as 
 regulated by statute. The proceedings are in the names of the respec- 
 tive parties, as though they were unmarried, and the wife in these cases 
 does not prosecute or defend her case by her next friend, as is done in 
 most cases, but in her own proper name and person. In these cases 
 the testimony of neither party is heard in court, and their admission 
 and confession, on either side, are generally excluded, as tending to get 
 up fraudulent application for divorce. The action is commenced by 
 filing a petition in the court of common pleas, and by means of a sum- 
 mons upon the opposite party, as the statute directs, the case, in due 
 time, will come to a hearing before the court, and a decree according to 
 its merits.' 
 
 § 31. 6. Bastardy is another action and proceeding dependent almost 
 entirely on the statute in relation to it. It may be commenced by the 
 mother or the township against the putative father, and intended merely 
 as a relief in a temporary support of the child. ^ The proceedings can 
 be commenced only in the. case of an unmanned woman, before a jus- 
 tice of the peace; and if not compromised and settled there, it is sent up 
 to the court of. common pleas, where the case may be tried by a jury; 
 and in case the defendant be convicted, he may be sentenced to pay a 
 certain amount as a temporary support of the child. 
 
 1 See further, ante, B. ii. ch. xxii. § 24-27. 
 
 2 See ante, Parent and Child, B. ii. ch. xxiv. I 10 and 11. 
 
408 CIVIL LA W. [book hi. 
 
 LIMITATION OP ACTIONS. 
 
 § 32. It has ever been thought expedient that there should be some 
 limitation to the time within which an action might be brought, — that 
 there should be some time beyond which every one might rest in 
 peace as to any question in relation to his rights or property, — that 
 every one should prosecute his claim within some reasonable time or 
 be forever barred of his claim. It is as a principle of peace and repose 
 for those who are in the peaceable and quiet possession of that which 
 they claim as their own. The common law fixes no precise time 
 within which each particular action should be brought, yet it regarded" 
 the maxim that legal rights should be asserted within a reasonable 
 time, and fior this purpose the law raised the presumption that after 
 eighteen or twenty years, that a debt has been paid ; and that the peace- 
 able possession of even real property for about thirty years would raise 
 a presumption of a title, unless there was some circumstance in the 
 case to rebut such presumption. But for the purpose of establishing a 
 ijxed period as a bar to a recovery in each particular action, in almost 
 all countries statutes have been adopted on the subject, denominated 
 statutes of limitations. 
 
 §33. These statutes of limitations are not only founded upon the 
 idea of preserving peace, but also fromthe danger, in case a claim was 
 to be permitted to be prosecuted at any period without reference to the 
 lapse of time, the claimant might purposely delay his action until the 
 defendant had, by some casualty, lost his documentary or other evidence 
 by which it might once have been successfully encountered. The delay 
 might be thus purposely and fraudulently practiced. To prevent this, 
 and encounter the hardships of losing property long honestly enjoyed 
 and improved, these statutes were enacted. 
 
 § 34. The statutes of limitation usually fix different periods of time for 
 the limitation of the different classes of actions, dependent upon their re- 
 epective importance, and their probability of meeting those objects which 
 induced their adoption. They extend over every period of time, from 
 one to twenty-one years. To actions for torts are usually fixed the 
 shortest period of time ; to that upon parol contracts a longer period ; 
 upon written contracts a still Ipnger period ; and those for the recovery 
 of real property the longest period. But in almost all of them there are 
 exceptions, saving the rights off infants, feme covert, and persons absent 
 from the country or beyond the seas, for a certain length of time after 
 the disability may be removed before the limitation would operate. 
 These provisio'ns and exceptions are numerous and diversified, as found 
 both in England and this country, and can only be minutely understood 
 by a particular examination of those statutes and laws. But a more 
 
CHAP. III.] ACTIONS. 409 
 
 minute examination of the provisions of the code upon the subject 
 must be had. 
 
 § 35. The limitations prescribed by the code are— 1. For the re- 
 covery of the title or possession of lands or tenements the action can 
 only be brought within twenty-one years after the cause of action has 
 accrued. Saving to every person, who, at the time his right or title first 
 descended or accrued, was within the age of twenty-one years, a mar- 
 ried woman, insane, or imprisoned, has the right to bring such action 
 within ten years after such disability is removed. But an action for 
 forcible entry and detention, or forcible detention only, can only be 
 brought within two years.' 
 
 §36. 2. 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 : (1) within fifteen years, action upon a specialty, or 
 any agreement, contract, or promise in writing ; (2) within six years, 
 action upon contract not in writing expressed, or implied, or upon a 
 liability created by statute, other than a forfeiture or penalty; (3) 
 within four years, action for trespass upon real property, for taking, de- 
 taining, or injury of personal property, or for the specific recovery 
 thereof, or for an injury to the rights of the plaintiff not arising on con- 
 tract and not elsewhere limited, or for relief on the ground of fraud, 
 after the time it shall have been discovered ; (4) within one year, action 
 for libel, slander, assault, battery, malicious prosecution, or false impris- 
 onment, or for a penalty of forfeiture upon a statute, except where such 
 statute prescribed a different limitation ; (5) within ten years, action 
 upon the official bond or undertaking of any officer, or in any case 
 whatever required by statute, except where a different limitation is pre- 
 scribed by statute, and for relief in cases not specially provided for, 
 only within ten years after the cause of action shall have accrued. But 
 in these personal actions there are the same exceptions and savings for 
 the same class of persons as in real actions, to bring their action 
 within the respective times limited, after such disability shall be re- 
 moved.^ 
 
 § 37. As to limitations the code further provides :' (1) An action shall 
 be deemed commenced as to questions of limitation, as to each defend- 
 ant, at the date of the summons served on. him, or on a co-defendant 
 interested with him by contract or otherwise ; and in cases of service 
 by publication, at the date of the first publication, which is regularly 
 made. An attempt to commence an action shall be deemed equivalent 
 to the commencement thereof, when the party faithfully, properly, and 
 diligently endeavors to procure a service. But such attempt must be 
 followed by service within sixty days. (2) The period limited for the 
 
 1 Code, I 9-11. 2 See code, § 8-19. ' Code, J 20-24. 
 
410 CIVIL LA W. [book hi. 
 
 commencement of an action which accrued against a person when he 
 was out of the State, or absconded, or concealed, shall not begin to 
 run while he is so out of the State, or absconded, or concealed ; and 
 if, after the cause of action accrues, he depart the State, or abscond, or 
 conceal himself, the time of his absence or concealment shall not be 
 computed as any part of the period of the limitation of the action. 
 
 § 38. It further provides, that — (1) Where a canse of action arose 
 between non-residents of this State, in another State or country,' and 
 by the laws thereof an action thereon cannot be maintained by reason 
 of the lapse of time, no action shall be maintained in this State. (2) If 
 an action be commenced in due time, and the plaintiff fail therein other- 
 wise than upon the merits, or the judgment be reversed, and the time 
 limited for the same shall have expired, the plaintiff, or, in case of his 
 death and the cause survives, his representatives may commence a new 
 action within one year after such failure or reversal. (3) In any case 
 founded on contract when any part of the principal or interest shall 
 have been paid, or any acknowledgment of liability, debt, or claim, or 
 any promise to pay the same, shall have been made,- an action may be 
 brought within the prescribed period, after such payment, acknowl- 
 edgment or promise ; but such acknowledgment or promise must be in 
 writing, signed by the party to be charged. 
 
 § 39. Such are the provisions of our code upon the subject of limita- 
 tions, which are very much in accordance with the law and statutes 
 that preceded it, in principle and pra,ctice, except that the acknowl- 
 edgment of a debt needed not to be in writing in order to have taken 
 the action out of the limitation. There are, however, a number of well- 
 established principles of the law of limitation of actions independent 
 of the code, but auxiliary to it, which should be noticed here, as. — (1) The 
 period of limitation begins to run from the time, and as soon as the in- 
 jurious act was effected or perpetrated, although the actual injury and 
 damage are subsequent, and could not immediately operate or become 
 known. ^ (2) Where the time once begins to run, it does not stop on 
 account of any subsequent event that might be within the saving of 
 the statute ; nor is one exception after another permitted to accumu- 
 late or exist. The exception or saving which may exist at the time 
 the cause of action first accrues is the only one that will govern the 
 case.^ Thus, where a promissory note given to a female, payable in one 
 year from date ; the limitation begins to run at the time the debt be- 
 comes due and payable. If she marries after it became due, her sub- 
 
 1 See Horton vs. Horner, 14 0. R. 437 ; S. C. 16 0. B. 145. 
 
 2 Kerns vs. Schoonmaker, 4 0. E. 331 ; Lathrop et ux. vs. Snellhaker, 6 O. S. E. 
 276. Fraudulent concealment will not save the statute — Hoe's adm'rs vs. Hoe, 
 10 0. E. 469 — except in cases in equity to set aside frauds. 
 
 s Granger vs. Granger, 6 O. E. 35 ; 9 0. E. 84. 
 
CHAP, in.] ACTIONS. 411 
 
 sequent coverture would be no saving to the lapse of time ; but her 
 marriage before it became due would be within the exception to the 
 bar. So it would be in case of an adverse possession; the right of 
 action accrued when the adverse possession was taken. If the right 
 and title be then in an infant, the case is within the saving of the 
 statute ; but if in an adult, who soon after that died, and the title de- 
 scended to an infant heir, it would not save the lapse of time, for the 
 limitation began to run before the title was acquired by the heir. 
 (3) Where there are several interested in the same action on either 
 side, the rule is, where common interests can be severed, the protec- 
 tion extends no further than to him within its provisions ; but where 
 no such severance can be made, and the protection of the statute 
 cannot be secured, without covering the interests of others, the 
 benefit of the statute claimed by one inures to the benefit of all. It 
 is so in a writ of error, which is an entire thing ; but it is otherwise 
 in an action of ejectment to recover land, for there the interest of each 
 is severable and may be partitioned.^ (4) The statute of limita- 
 tions is an advantage or privilege which the party waives or insists 
 upon, and which he must generally plead and set up, or it will be 
 presumed that he waives it. When the limitation is obviated by a 
 new or subsequent promise, the effect is to take the original promise 
 out from under the operation of the statute ; and the action should be 
 on the old promise, and the new one should not be the foundation of 
 it.^ (5) Where the limitation begins to run against the ancestor, it 
 will continue to run against the heir, or any one claiming under him, 
 though such heir or assignee be an infant ; but where such ancestor or 
 grantor was not barred, as being within the saving of the statute, that 
 right inures to the grantee or heir, and is protected by it, as though 
 the suit was in the name of the original owner, though such new party 
 may not be within the terms of such saving clause. 
 
 PAKTIES TO CIVIL ACTIONS. 
 
 § 40. At common law, before the code, the action was always in the 
 name of the parties who were legally interested. Legal, vested rights 
 were the rules by which the parties to the action at law were deter- 
 mined, and mere equitable rights or interest, adverse to such legal and 
 fixed right, were the exceptions. And as long as the law distinguishes 
 between rights that are legal and fixed, and those which merely rest 
 in equity, as the law everywhere does, it is inconsistent that actions at 
 law should be controlled by other than legal rights. Thus, the law re- 
 
 ■ Sturges vs. Longworth, 1 0. S. K. 562 ; Contra, Martseller us. McLean, 7 
 Cranch's R. 156. 
 2 4 Kornan's E. (N. T.) 16 j 2 Ibid. 635. 
 
412 CIVIL LAW. [book III. 
 
 quires certain definite and obvious acts to constitute certain legal and 
 vested rights, and without them there can be but a mere equity or 
 nothing. For instance, to convey land, the law required a deed, exe- 
 cuted with a certain formality, in order to convey and transfer the title ; 
 and anything less than this was a mere equity. The common law, 
 making this distinction, therefore required that the suit and action at 
 law should be in the name of the person in whom the law vested the 
 legal title ; and left equitable interest to be disposed of or recovered, in 
 suits in equity, where one equity might come in conflict with another, 
 and the court would have to decide which was the better equity, and 
 then the court of equity, with great propriety, required the real party in 
 interest to be before them. 
 
 § 41. Thus, where A had sold, by a mere writing, which was not a 
 deed, to B a lot of land, by which he was invested with the equitable 
 title. Now if B were desirous (with the consent of A) to recover the 
 possession from some third intruder, the suit and the proceedings in a 
 suit at law would have to be in the name of A, in whom the law placed 
 the legal title, though all this may be done for the actual use and benefit 
 of R So also in a contract by which A promised, upon a sufficient 
 consideration, to do something for B, but had violated his contract. At 
 common law, B might assign this contract, and the right to recover 
 upon it, to C. But as at common law a chose in action (not a negotiable 
 paper) could not be assigned so as to enable the assignee to sue in his 
 own name, for the law, in an action at law, required the party who had 
 the legal right before the court, in order to preserve those legal rights 
 according to law, leaving equities to be decided according to equity ; 
 therefore such assignee would bring the suit in the name of B for the 
 use of C, in which would be recovered B's legal rights against A, and 
 no more or less. This was necessary in order to preserve legal rights, 
 which the law made as such, and distinguished from such as it only 
 admitted as equities. 
 
 § 42. But the code reverses all this ; and while it admits, as it must, 
 the distinction between legal and equitable rights, it abolishes all dis- 
 tinction in the action, and combines in one without distinction, what 
 the law and the nature of things acknowledge to be diverse. The code 
 declares, " Every action must be prosecuted, in the name of the real 
 party in interest, except as otherwise provided in section twenty-seven," 
 which section relates to executors and other persons suing in auler 
 droit, and officers who may sue as any statute may specially direct." 
 
 § 43. The code therefore required the action to be prosecuted " in the 
 name of the real party in interes.t," disregarding whether that interest 
 was what the law made and regarded as a fixed legal right, — having the 
 
 ' Code, § 25. 
 
CHAP. III.] ACTIONS. 413 
 
 requisites that the law required to making it such, or was in itself an 
 informal and imperfect legal right, and that in the hands of an assignee. 
 The real interest may be in the hands of such an assignee, while the 
 legal title may be back in some former claimant, and having passed 
 through a number of hands, none of whom had such a transfer as the 
 law required. Any claim or interest may be assigned that did not 
 grow out of a personal tort, as for slander, battery, or the like, which did 
 not survive to the personal representatives, or that was not a mere ex- 
 pectancy or possibility uncoupled with an interest. Such an assignee 
 is to be made the party to the suit, while the holder of the naked legal 
 title may be left out.' 
 
 § 44. At common law, there were certain covenants in relation to 
 lands and tenements that passed with the title of the freehold from the 
 grantee to his vendee, — as covenant to warrant and defend. But at 
 common law, they only passed with the legal title, though under the 
 code, as the assignee of the equity of the estate may be " the real party 
 in interest," it is probable that such assignee may sue in his own name 
 before perfecting his own legal title. 
 
 § 45. The executor or the administrator of a deceased person, who 
 left a chose in action that survived and had not been assigned, is the 
 proper party plaintiff to the action, as the personal representative of 
 the deceased, and he is the only person that could sue or be sued in 
 relation to such rights. 
 
 § 46. An action for an ivfant must be brought by his guardian or 
 next friend, both under the code and at common law. If the suit be 
 brought in the name of the infant, widhout a guardian or next friend, 
 the objection could not be made at- the trial, but the matter should be 
 pleaded in abatement, or raised on a previous motion to set aside the 
 proceeding for irregularity. In suits against infants, the summons or 
 process is issued against the infant as though he was an adult ; but 
 before any judgment can be taken against him a guardian must be 
 appointed for him, to defend the suit after it is brought, by the court, 
 or a judge thereof, Or the probate judge, by whom the suit must be 
 defended ; and it would be error to proceed to judgment against an 
 infant without such appointment and defense. The next friend or 
 guardian who brings a suit for an infant is responsible for the costs in 
 the case, unless they are recovered of the defendant." And they are 
 always under the control of the court, for the protection of their ward. 
 
 § 47. A married woman must generally be joined with her husband 
 in both the prosecution and the defense of nny action in which her inter- 
 
 » See Swan's Pleading under the Code, 65, etc. As to assignments, see ante, B. 
 ii. ch. xii. ? 27, etc. 
 2 Code, g 32 and 33. 
 
414 CIVIL LA W. [book hi. 
 
 est is to be affected. Where she had an interest adverse and separate 
 from her husband, the rule was that she must sue by her next friend. 
 The code provides that where she is a party, her husband must be 
 joined with her ; except where the action concerns her separate prop- 
 erty, she may sue without her husband, by her next friend. Where 
 the action is between herself and her husband, she may sue or be sued 
 alone ; but in every such action, other than for divorce and alimony, 
 she shall prosecute and defend by her next friend. When sued together, 
 she may defend for her own right; and if the husband neglect to defend, 
 she may defend also for his right.^ 
 
 § 48. Under the code, the rule seems to be, where the wife is a party 
 plaintiff, the husband must be joined in the action, and he may be 
 named as her next friend ; except where the action concerns her sepa- 
 rate property, she must sue by her next friend, and make her husband 
 a party defendant. But the wife.cau defend separately only where she 
 has a right or interest distinct from the husband.^ 
 
 § 49. The real party in interest must sue as plaintiff; but as an ex- 
 ception to this rule of the code, it provides that a trustee of an express 
 trust, and the person with whom or in whose name*, contract is made 
 for the benefit of another, may bring an action without joining the per- 
 son for whose use it is brought.' This may relieve in some cases, as 
 to who should be made plaintiff, — the principal or agent, the consignor 
 or consignee. But then may not the trustee or agent recover and 
 poclvet the avails before his principal is informed of the transaction ? 
 
 § 50. The code provides that all persons interested in the suit should, 
 be made parties, — those who are united in interest and in obtaining the 
 relief demanded, as plaintiffs, and those whose interests are adverse to 
 this, as defendants. But if the consent of any one who should have 
 been joined as plaintiff cannot be obtained, he may be made defendant, 
 the reason being stated in the petition.* This mode of disposing of an 
 obstinate party who refuses to become plaintiff, supersedes the common 
 law proceeding of summons and severance. 
 
 § 51. Where the parties in interest are numerous, the code further 
 provides that where the question is one of common interest of many 
 persons, or the parties very numerous, one or more may sue or defend 
 for the benefit of all. When a determination of the controversy cannot 
 be had without the presence of other parties, the court must order them 
 to be brought in ; but when it can be done without prejudice to the 
 rights of others, the court may determine any controversy of the parties 
 before it.' 
 
 I Code, I 28 and 29. 2 See Swan's Pleading under the Code, 78 and 110. 
 
 ' Code, I 27 ; Swan's Pleading.s, 83. * See code, g 84-36. ' Code, ? 40. 
 
CHAP. III.] ACTIONS. 415 
 
 JOINDER AND ELECTION OE ACTIONS. 
 
 § 52. At common law, several causes of action might be joined in the 
 same suit, or they might sustain several suits, except when, in the same 
 court, they might be consolidated by order of the court upon motion, 
 where the causes of action were so much alike in nature and form of 
 action that no injustice was done the plaintiff. But under no circum- 
 stances could causes of action be joined which required a different form 
 of action ; as au action of covenant and that of trespa.ss. Nor could 
 actions be joined when one appeared to be in contract and the other in 
 tort. But many different causes of action might be joined, and generally 
 were permitted to be, where they were of the same nature, and pre- 
 sented no difficulty in the proceedings and judgment. The rule was, 
 that where the same action would lie between the same parties, and the 
 different causes of action were so much alike in their nature as to admit 
 of the same plea and judgment, such causes of action could be joined in 
 the same action. Cases in equity were not, of course, joined with those 
 at law ; for the very essence of equity was, that there were not a plain 
 and adequate remedy at law ; and then the whole proceeding, mode of 
 relief, and remedy, are in their very nature so very different, that it is a 
 wonder that ever any one thought they could be united in the due ad- 
 ministration of justice. Under these rules there were not only the 
 question of the joinder of action, but there were also the election or 
 choice of actions, both as to the form and as to who would be made party 
 defendants ; — thus, there were frequently a choice whether the action 
 would be in form ex delicto or ex contractu; — as where A's horse is 
 taken in trespass by B, and sold and converted into money, received by 
 B. Now this money in equity and good conscience is the money of A, 
 which, in law, B has received for his use. At common law A had his 
 choice of action against B, either an action upon the implied promise 
 for the money, or an action in tort for the trespass to the horse. It is 
 the same under the code. If therefore' A had such a cause of action 
 against B, he might choose to draw up his petition for the injury to his 
 property in the horse as a tort in action No. III. of the code; and in 
 that form of action cut off a set-off, rather than for the implied promise 
 for the money under action No. II. of the code, where the set-off would 
 be admitted.' 
 
 § 53. The same questions — the joinder of action, and the choice, and 
 election of action — are subject of the judgment, choice, and election under 
 the code, as it was at common law, only we have additional new 
 rules to go by. It is true, the code declares that " the distinction be- 
 tween actions at law and suits in equity, and the forms of all such 
 
 • See ante, this ch. g 13. 
 
416 CIVIL LAW. [book hi. 
 
 actions and suits, heretofore existing, are abolished; and in their place 
 there shall be, hereafter, but one form of action, which shall be called a 
 civil action." This merely changes the name, but that does not change 
 the thing itself. The putting a false label upon a thing does not alter 
 the thing or change its nature. It has been seen that although the 
 code abolishes the former names of actions and forms of actions, so far 
 as dependent on those former names, it adopts several new forms of 
 action in their stead, which are called classes by numbers instead of by 
 their proper name. The code calls them " cause of action," but when 
 rthey are reduced into the petition and in court, they are then the form 
 of action ; and these forms of action, and all the distinction between 
 one action and another, must be obserA^ed in classifying them into the 
 several classes of the code.^ 
 
 § 54. For a further illustration of this subject, let us again suppose the 
 case of A, who has his right of action for the trespass and injury to his 
 horse against B. His action for this cause would be in form of action 
 No. III. of the code. If A, at the same time, had a promissory note 
 against B, or any other cause of action in contract, it could not be joined 
 or united in the same action with the tort for the horse, for the action 
 on the contract would be action No. II. of the code. But if the horse 
 had been converted into money, as stated in the former case, then the 
 action for it might, as an implied promise, be united with the note in 
 action No. II. of the code. Or if the note was given for the hire of the 
 horse, and B had injured the horse tortiously, then the two causes of 
 action might be joined in the same action, — action No. I. of the code, — 
 the injury to the horse as cause of action 1, and join with it cause of 
 action 2 on the note, as being a "transaction connected with the same 
 subject of action ;" — the one for the service of the horse by contract, 
 and the other for the injury to the horse by a tort ; and if these two 
 causes of action are so joined, they must, in the petition, show the con- 
 nection, or the joinder would be objectionable. The same kind of diffi- 
 culty may occur as to every one of the seven classes of action in the 
 code. 
 
 1 Ante, this oh. | 4-15. 
 
CHAP. IT.] PROCEDURE AND PRACTICE. 417 
 
 CHAPTER lY. 
 
 PROCEDURE AND PRACTICE. 
 
 § 1. Civil procedure includes everything that relates to the proceed- 
 ings in a case for the redress of civil injury, and would, in an enlarged 
 sense, include the whole of the third bools of this analysis. Practice' 
 has a more limited application, and means the routine of attention and 
 business in the prosecution of a case from its commencement to its final 
 termination, leaving out the theoretic doctrines of such subjects as 
 actions, pleadings, evidence and the like, though intimately connected 
 with them, and including, and necessarily referring to, these subjects 
 in general. 
 
 § 2. Practice, therefore, will include the choice of the proper remedy 
 and action, the process which will bring the proper parties before 
 the court, in seeing that the necessary pleadings are prepared and filed, 
 and that the necessary proceedings and preparation are had for the ^riaZ 
 and execution. The first thing, therefore, that claims the attention of the 
 practitioner is the choice of remedies, or action, for any case that may be 
 placed in his hands for the redress of the civil injury of which his client 
 complains. Whether the practice is under the code or at common law, 
 there must be a great difference in the deliberation and choice that is 
 made in-the selection of remedies and forms of action ; and this not only 
 with regard to the action itself, but also as to who should be made par- 
 ties to it as plaintiff or defendant, as to the joinder or severance of dif- 
 ferent causes of action, and also as to defense that may be made by the 
 defendant in one form rather than another. 
 
 § 3. It should be remembered that the cause of action is the subject- 
 matter of the case which existed before the suit is brought, but after the 
 suit is commenced it becomes the action ; for then it is a •' demand in 
 court." In practice, therefore, there is a great advantage in the election 
 of the proper form of action and the joinder of action. Thus, where a 
 person had taken a note in payment for stolen goods, and had also 
 taken a mortgage on a lot of land to secure the payment of the note, 
 a suit upon the note itself vsrould be action No. II. under the code, and a 
 suit brought on the mortgage to recover the " real property " would be 
 action No. VI. under the code. Action brought upon the note would be 
 
 1 On the subject of Practice, see .Sd vol. of Bouvier's Institutes, Tidd's Prac. ; 
 also, Tiffany and Smith's N. Y. Practice, which is earnestly recommended ; and 
 also Bobinson's Practice, which includes not only practice, but what is usually 
 called nisiprius law. 
 
 27 
 
418 CIVIL LA W. [book hi. 
 
 a simple remedy, that avoided all future questions as to foreclosure 
 and equity of redemption. But in that form of action, in spite of the 
 facts to the contrary, the defendant may be able to show that the con- 
 sideration of the note was not only the goods stolen, but also that a 
 criminal prosecution should be compromised and stifled. This might 
 compel the plaintiff to abandon his first action, and bring a new suit in 
 ejectment (or action No. VI. under the code) to recover possession of 
 the land under the conveyance by the mortgage, in which last action 
 the plaintiff would of course recover ; as the title to the land under the 
 mortgage was complete, the consideration could not be questioned. 
 Here, then, was an instance of the consequence of the effect of the 
 choice of one action instead of another ^ 
 
 § 4. So, also, should the party or his counsel be careful in deter- 
 mining who should be made parties to his suit ; for frequently more or 
 less persons may be made a party, — plaintiff or defendant. Thus, where 
 a tort has been committed by an agent of another, the action might be 
 brought against both, or either. Circumstances may make it easier to 
 prosecute- the case against one than both ; at the same time both may 
 not be equally responsible, and therefore a suit against both would be 
 the better course to pursue. These, and the like, are mere questions of 
 practice, on the determination of which judgment must be used, guided 
 by learning and experience. 
 
 COMMENCEMENT OF THE ACTION. 
 
 § 5. After the choice of action has been made, and the persons to be 
 made parties have been determined upon, the next thing in the progress 
 of a case is to commence the action, that is, to bring the claim before the 
 court. Causing process to be issued has always been considered, in 
 Ohio, as the commencement of the suit or action. Before the code, the 
 necessary proceeding to procure the process to be issued was the filing 
 of a prsecipe with the clerk of the court, containing the names of the 
 parties and stating the form of action, a concise statement of the nature 
 of claim and matter of complaint, and the amount claimed to be recov- 
 ered by the action. Upon this, the clerk issued the required process ; 
 usually a summons directed to the sheriff requiring him to summon the 
 defendant to answer, and upon which writ the clerk indorsed the state- 
 ment of the nature of the complaint and the amount claimed to be re- 
 covered in the action. When the process was returned served, the 
 defendant was considered to be in court ; and in case the defendant, at 
 the return or appearance term of the court, did not pay the amount de- 
 manded by the writ and settle the suit, the plaintiff was bound within 
 a fixed time to file his declaration, which was a full statement of his 
 
 > Seo 7 0. E. pt. ii. 72; 14 O. E. 38. 
 
CHAP. IV.] PROCEDURE AND PBACTICE. 419 
 
 grounds of complaint and cause of action, to which the defendant was 
 bound to file his plea or demurrer within a fixed time, or be in default, 
 upon which default the plaintifif might take judgment. But if the 
 defendant filed' the proper pleading in the case, the parties proceeded in 
 their judicial altercation until they were at issue, as will hereafter be 
 explained under the head of Pleading. 
 
 § 6. This mode of commencing the suit at law, according to our 
 former practice, and in conformity with common law proceedings, was 
 expeditious and easy, and did not, in the first instance, require an 
 elaborate statement of the cause of complaint or action, before the 
 issuing the process, or at all in case the action was settled before the 
 declaration was filed. 
 
 § 7. But under the code this part of the proceedings is very different. 
 The first thing to be done toward commencing the suit, after settling 
 the question as to the remedy to be sought and who to be made parties, 
 is to draw up the petition, which is a substitute for the declaration, and 
 which requires as much consideration and skill to draw it up ; and 
 when sworn to by the plaintiff, or in some special instances by his at- 
 torney, it is filed with the clerk, with a praecipe for the proper process, 
 upon which a summons issues requiring the defendant to appear and 
 answer by a given time, or a judgment would be taken by default. If 
 the defendant, upon the service of process, be disposed to pay up or 
 settle the case, then the skill and labor in drawing up the petition is 
 labor lost; and in the hurry of the commencement of the suit it re- 
 quires time, which, on account of the delay, can be but illy spared. 
 
 § 8. Under either system, when the defendant had been duly sum- 
 moned, or the process served upon him and returned, he was con- 
 sidered in court, and no entry of his appearance^ was necessarj', for if he 
 did not appear and answer, it was his own fault, and the plaintiff, when 
 the record showed service, was permitted to proceed by default, in case 
 the defendant neglected to make his defense ; and no process of dis- 
 traint was necessary to compel the appearance of the defendant. 
 
 § 9. These proceedings in relation to process and pleadings take 
 place between the parties and their attorneys out of court, and not in 
 the presence of the judges, and are usually transacted in vacation as 
 well as in term time. They are intended to prepare the cases, and to 
 put them in a condition to be heard and decided by the court; for it is 
 manifest the court could not decide a case until the parties were prop- 
 erly before it, and the point in issue, or the matter to be decided, is 
 made manifest by the altercations and pleadings of the parties. 
 
 § 10. It must be remembered that some actions are local and others 
 transitory.''' By the English common law, all suits in the superior 
 
 1 See 3 Stephens's Com. 566. » See ante, ch. iii. g 9 and 10. 
 
420 CIVIL LA W. [book hi. 
 
 courts were commenced in the courts at their head-quarters, at West- 
 minster, but the proceedings in each case had to refer to the county in 
 which the transaction or cause of action complained of took place, as a 
 part of the description and narrative, and so stating the county in the 
 proceedings was called " laying the venue," which, in local action, must 
 be laid in the county where the local matter was actually situate. But 
 in transitory actions they were at liberty to lay the venue in any 
 county they pleased ; and when the case came to trial, it was sent to 
 the proper county to be tried, as to the facts of the case, by a jury 
 there at a nisi prius court. In this country, courts are usually local, 
 and very little of the nisi prius system exists ; and therefore the action 
 is usually brought in the court situated within its jurisdiction, where 
 the trial was to be had, which generally is within the county. The 
 Ohio code provides that actions for the recovery of real property, for 
 partition, or for the sale of real property on mortgage, lien, or other 
 incumbrances, must be brought in the county where the subject of the 
 action is situated, except, where the tract of land is situate in two or 
 more counties, the action might be brought in either, and an action to 
 compel the specific performance of a contract for the sale of real estate may 
 be brought in the county where the defendants, or any of them, reside.' 
 
 § 11. The code further provides that certain actions must be brought 
 in the county where the cause of action, or some part of it, arose, as an 
 action for the recovery of a fine, forfeiture, or penalty imposed by a 
 statute, or an action against an ofiBcer for the neglect or abuse of his 
 duties under color of his office, or on his official bond. It also makes 
 numerous provisions as to the local character of actions against corpo- 
 rations ; — which are generally to be brought where the principal place 
 of business may be, or where the cause of action arose. But where 
 the action is against a non-resident of this State, or a foreign corpora- 
 tion, it may be brought in any county in which there may be property 
 of, or debts owing to, the defendant, or where the defendant may be 
 found. 
 
 § 12. In all other actions, the suit must be brought in the county in 
 which the defendant, or some one of the defendants, resides, or may 
 be summoned. And the code also provides that when it shall be made 
 to appear to the court that a fair and impartial trial cannot be had in 
 the county where the suit is pending, the court may change the place 
 of trial to some adjoining county.' 
 
 § 13. Where the action is rightfully brought in any county, a sum- 
 mons may issue to any other county against any one or more of the 
 
 1 See code, ? 45, 46. 
 
 2 See code, tit. iv. ? 45-54. These provisions are bo numoTOUS that it becomes 
 difficult to condense them. See also an act in relation to a change of venue, 
 passed Feb. 10, 1857, O. L. vol. liv. 10. 
 
CHAP, iv'.] PROCEDURE AND PRACTICE. 421 
 
 defendants at the plaintiif' s request.^ Summons to other counties are 
 made returnable on the third or fourth Monday after date at the option 
 of the plaintiff; but those served in the county are to be made return- 
 able on the second Monday; when returned "not summoned," other 
 writs may issue until service is made, and the parties all summoned. 
 
 PEOCESS AGAINST ABSENT AND UNKNOWN DEPENDANTS. 
 
 § 14. It frequently happens that causes of action exist against absent 
 or unknown defendants. Against difficulties arising from this predica- 
 ment statutes have always existed here to obviate the difSculty and 
 prescribe the mode of procuring service of process in such cases. This 
 is especially the case in such actions as attachments against absent or 
 absconding debtors, actions for specific performance of contracts in rela- 
 tion to real property, actions upon mortgages and liens upon real prop- 
 erty, and other local actions. The code provides that in such actions, 
 — actions to establish or set aside a will, and any or all the defendants 
 reside out of the State ; and in all actions where the defendant, a resi- 
 dent of the Stale, has departed the State, or the county of his residence, 
 or concealed himself therein with intent to delay or defraud his credi- 
 tors, or to avoid .service of a summons, — .service may be made by publi- 
 cation. Before such publication can be made, an affidavit must be filed 
 that service of a summons cannot be made within this State on the 
 defendant, and the case was one of those intended for such proceedings 
 by the code.^ 
 
 § 15. Such publication must be six consecutive weeks in a newspaper 
 printed in the county,' or if there be none, in a newspaper of the State, of 
 general circulation in the county. It must contain a summary statement 
 of the object and prayer of the petition, mention the court, and notify 
 the defendant to be served, when he is required to answer the action. 
 Service by such publication is complete when such publication has been 
 duly made and proved by the affidavit of the printer, or other person 
 knowing the same. 
 
 § ] 6. When it becomes necessary to make the heirs or devisee of any 
 deceased person defendant, and their names and residence are unknown, 
 similar proceedings may be had by publication, under the direction and 
 order of the court. But a judgment or order obtained without other 
 service than by publication, may be, at any time within five years, 
 opened, and the defendant let in to defend, upon notice, and satisfying 
 the court that during the pendency of the action he had no notice thereof 
 in time to appear and defend ; and must at the same time file a full an- 
 swer to the action, and pay costs. But the opening of such judgment 
 
 1 See the code, § 55-60. ^ Code, I 70-79. » Code, ? 71-73. 
 
422 CIVIL LAW. [boo^ i"- 
 
 and proceedings to a rehearing of the case, does not affect the title of 
 any property purchased in good faith under the judgment, nor when 
 sold under an attachment.^ 
 
 SEEVICE OF PEOCESS. 
 
 § It. The summons shall be served by the officer to whom it is di- 
 rected, who shall indorse on the original writ the time and manner of 
 service. It may be served by any person not a party to the action, 
 appointed by the officer, by an authority indorsed on the writ. When 
 the service is made by such appointee, or made out of the State, the 
 return must be verified by oath or affirmation. The service shall be by 
 delivering a copy of the summons to the defendant personally, or by 
 leaving one at his usual place of residence, before the return day. An 
 acknowledgment on the back of the summons, or the voluntary appear- 
 ance of the defendant,' is equivalent to service. In all cases where 
 service may be by publication, personal service of a copy of the sum. 
 mons and complaint may be made out of the State, and proved by 
 affidavit.' 
 
 § 18. A summons against a corporation may be served upon the presi- 
 dent* or other chief officer; or if he be not found in the county, upon its 
 cashier or managing agent ; or if such officer be not found, by a copy 
 left at the office or usual place of business of the corporation, with the 
 person having charge thereof. When the defendant is a minor under 
 the age of fourteen years, the service must be upon him and upon his 
 guardian or father, or if neither can be found, upon the mother or the 
 person having the care and control of the infant, or with whom he lives. 
 If neither of these can be found, or if the minor be more than fourteen 
 years of age, service on him alone shall be sufficient.^ 
 
 § 19. Where the action is against two or more defendants, and some 
 have been served, but not all, the plaintiff may proceed^ — 1. Against the 
 defendants served, in actions against the defendants jointly liable upon 
 contracts, unless the court otherwise directs. 2. Against the defend- 
 ants served, where all are severally liable, in the same manner as if 
 those served were the only defendants, without prejudice to his rights 
 against those not served. 
 
 § 20. When summons has been served, or publication made, the action 
 is pending, so as to charge third persons with notice of its pendency, 
 and while pending no interest can be acquired by third persons against 
 the plaintiff's title.' When real property, the subject of an action, is 
 
 1 See the code, J75, 76. ' See code, g 61-65. 
 
 s Code, I 74. i Code, § 66. 
 
 6 Code, \ 69. e Code, ? 77. 
 
 ' Code, I 78, 79. 
 
CHAP. IV.] PROCEDURE AND PRACTICE. 423 
 
 situated in any other county than the one in which the action is brought, 
 a certified copy of the judgment must be recorded in the recorder's office 
 of such other county, before it shall operate as such notice, so as to 
 charge third persons. 
 
 § 21. Such are the provisions of the code in relation to process and 
 service, which is very much the same as our statutes that preceded it, 
 and very nearly in conformity with the common law principles in rela- 
 tion to the same subjects. The proper service of process on the defend- 
 ant, or what the law makes equivalent to it, is of the utmost importance 
 in the case, for it is what gives the court jurisdiction over the case ; and 
 a judgment without it would be void as coram non judice. But if legal 
 process is served, so that the defendant has had the required legal 
 notice, and he neglects to make his appearance and defend, the plaintiff 
 is permitted thereafter to proceed against him in court as upon default, 
 and no further process is required to be made on him in order to obtain 
 judgment. 
 
 AEEEST AND BAIL. 
 
 § 22. In all countries proceedings of some kind are devised to secure 
 the personal attendance of the defendant to be forthwith coming, to 
 answer the judgment of the court against him, in that class of cases 
 which the law deemed worthy of it. At common law this was secured 
 by a process called a writ of " capias ad respondendum," and subse- 
 quent proceedings thereon. This is had under the code by what it 
 calls " provisional remedies,'" but which is a proper subject here as 
 being connected with process. 
 
 § 23. As to arrest and bail, the code provides that a defendant in a 
 civil action can be arrested before and after judgment, as prescribed 
 by the code, and not otherwise ; but this does not apply to proceedings 
 for contempt ; nor to actions or judgment in the name of the State to 
 recover fines or penalties for crimes or offenses. An order for such ar- 
 rest shall be made by the clerk of the court, when there is filed in his 
 office an affidavit of the plaintiff, his agent or attorney, before any judge 
 of any court or clerk thereof, or justice of the peace, stating the nature 
 of the plaintiffs claim, that it is just, and the amount thereof, as nearly 
 as may be, and establishing one or more of the following particulars:^ 
 1. That the defendant has removed, or began to remove, any of his 
 property out of the jurisdiction of the court, with intent to defraud his 
 creditors. 2. That he has begun to convert his property, or a part 
 thereof, into money, for the purpose of placing it beyond the reach of 
 his creditors. 3. That he has property, or rights of action, which he 
 fraudulently conceals. 4 That he has assigned, removed, or disposed 
 
 1 See post, this cb. g 32. 2 Code, g 45 and 146. • 
 
424 CIVIL LA W. [book hi. 
 
 of, or has begun to dispose of his property, or a part thereof, with in- 
 tent to defraud his creditors. 5. That he fraudulently contracted the 
 debt, or incurred the obligation, for which suit is about to be, or has 
 been, brought ; the affidavit shall also contain a statement of the facts 
 claimed to justify the belief in the existence of one or more of the above 
 particulars. 
 
 § 24. The clerk is not to issue the order until he receives from the 
 plaintiff an undertaking, with sufficient sureties in double the amount 
 claimed, to the effect that the plaintiff shall pay all damages the defend- 
 ant may sustain by reason of the arrest, if the order be wrongfully ob- 
 tained. The order may accompany the summons, or at any time after- 
 ward, before judgment. It shall be addressed and delivered, with a 
 copy of the affidavit, to the sheriff. It shall state the names of the par- 
 ties, the court, and the amount of the plaintiff's claim in the affidavit ; 
 and shall require the arrest of the defendant, and hold him to bail in 
 double the sum claimed ; and to make return on a day named in the 
 order with the undertaking, if any, to be given by the defendant. 
 
 § 25. The return day of the order, when issued at the commence- 
 ment of the suit, shall be the same as the Summons ; when issued after- 
 ward, it shall be in fifteen^ days. The sheriff executes the order by ar- 
 resting the defendant, and giving him a copy of the order and affidavit. 
 If the defendant is not found by the return day, the plaintiff is entitled 
 to further orders on the same affidavit and undertaking ; but order of 
 arrest shall not be issued to any other county. 
 
 § 26. The defendant when arrested shall be committed by the sheriff 
 to the jail, and kept in custody until legally discharged. He may, be- 
 fore or after giving bail, deposit with the sheriff, or in court, the amount 
 of money mentioned in the order, whereupon he shall be discharged or 
 his bail released. The money must be paid by the sheriff into court, 
 who shall make proper orders for the safe-keeping of money deposited 
 in lieu of bail, to be paid to the party entitled, according to the result 
 of the suit. The sheriff and his sureties are responsible on the official 
 bond for the money while in his care. Bail may be given by the de- 
 fendant at any time before judgment. It shall be done by causing one 
 or more sufficient bail to execute a written undertaking to the plaintiff, 
 in the presence of the sheriff, to the effect that if judgment shall be ren- 
 dered in the action against him he will render himself amenable to the 
 process thereon ; which should be returned to the clerk's office and the 
 defendant discharged. 
 
 § 21. The plaintiff may object to the bail for insufficiency at any time 
 within ten days after given ; within such time he shall serve a written 
 notice on the sheriff that he excepts to the bail, or he shall be deemed 
 
 ' Code, 1 150-157. 
 
CHAP. IV.] . PRO C ED TIRE AND PRACTICE. 425 
 
 to have accepted it, and the sheriff exonerated.^ "When the undertak- 
 ing is given after the return, the plaintiff shall have notice. On receipt 
 of notice of exception, the sheriff or defendant may, within ten days 
 thereafter, give the plaintiff notice in writing of the justification of the 
 same, or other bail, before the judge, or clerk, or probate judge or jus- 
 tice of the peace, at a specified time and place, not less than five, nor 
 more than ten, days thereafter. If other bail be given, there must be a 
 new undertaking. Each of the bail must attend before the proper officer 
 at the time and place of justification, and may be examined on oath or 
 affirmation touching his sufficiency, as the officer may think proper. If 
 the officer find the bail sufficient, he shall indorse his allowance on the 
 undertaking, and file the same with the clerk, and the sheriff is thereby 
 discharged. But if the defendant escape, or be rescued, or bail be not 
 taken, or be adjudged insufficient, or a deposit be not made, the sheriff 
 shall be liable as bail. He may, however, discharge himself by putting 
 in sufficient bail at any time before judgment. And the return of " not 
 found," upon an execution against the defendant, shall be necessary to 
 fix the liability of the sheriff as bail, which shall be the amount of the 
 judgment, interest and costs. This liability can be enforced only in a 
 separate action against him, or against him and his sureties on his 
 official bond, as in other cases of delinquency. A bail adjudged insuffi- 
 cient shall be liable to the sheriff for the damages he may sustain by 
 reason of the insufficiency ; and his liability shall be fixed in the same 
 manner as that provided against the sheriff, and be proceeded against 
 in an action only. 
 
 § 28. A surrender of the defendant to the sheriff, with a copy of the 
 undertaking, by the defendant himself or his bail, shall discharge the 
 bail.^ The sheriff shall give to the bail a written acknowledgment of 
 the surrender, and hold the defendant in custody upon the copy of the 
 undertaking, as upon an order of arrest. And upon presenting the 
 acknowledgment of a surrender to the clerk, an exoneration — exoneratur 
 — shall be entered on the undertaking. For this purpose, the bail may 
 arrest the defendant at any time or place, before he is finally charged. 
 This he may do himself, or by a written authority indorsed on a certified 
 copy of the undertaking. 
 
 § 29. Bail will be exonerated by the death of the defendant; or his 
 imprisonment in a state prison ; or by his legal discharge from being 
 amenable to the process; or by his surrender to the proper sheriff 
 within the time fixed for that purpose, or within such further time as 
 the court may allow.' And the court may, at any time before or after 
 judgment against the bail, if proceedings be commenced in error on 
 the judgment against the principal, on motion, stay proceedings against 
 
 1 Code, 2 158-165. ' Code, g 166, 167. « Code, § 168. 
 
426 CIVIL LAW. ■ [book iii. 
 
 the bail, on payment of costs ; and if such judgment be reversed, and 
 the principal be discharged, the bail shall also be discharged. 
 
 § 30. Motion to vacate the order or to reduce the amount may be made 
 by the defendant, at any time before justification, to the court, if in ses- 
 sion, and in vacation to any judge of a court of record of the State,' upon 
 reasonable notice thereof being given the plaintiff. If such motion be 
 made by the defendant on affidavit, then, and not otherwise, the plain- 
 tiff may oppose by affidavits or other evidence in addition to that on 
 which the order was made. 
 
 § 31. The imprisiDnment of debtors is not in the least encouraged by 
 the laws of Ohio. The code therefore provides^ that any person caus- 
 ing another to be committed to jail shall be liable, in the first instance, 
 for the jail fees, and shall, if required by the jailer, pay such fees weekly 
 in advance ; and such fees, so paid, shall be a part of the costs of the 
 case. Under these provisions of the code, it is but very seldom that 
 there is any imprisonment for debt in Ohio, and the student will ob- 
 serve that the law itself authorizes it only in case where the plaintiff 
 makes showing by affidavit that there was charged against the defendant 
 either fraud, absconding, secreting of property, or the like misconduct 
 and bad faith toward his creditors. 
 
 PROVISIONAL EEMEDIES. 
 
 § 32. Under this head the code has arranged a number of subjects, 
 some of which we have been compelled to consider in the former part 
 of this book as intimately connected with actions and process. To 
 them reference must be had for what has been said upon those subjects. 
 But in the course of the proceedings of a case the practitioner should 
 always see what special or "provisional remedies"^ the code will afford 
 in his case. Those enumerated in the code as provisional remedies are 
 these five, to wit: 1. Arrest and bail.* 2. Replevin of property.^ 3. 
 Attachment." 4. Injunction. 5. Receivers and other provisional reme- 
 dies. Each of -which will be considered. 
 
 § 33. 1. Arrest and hail are subjects that properly belong to process, 
 where they have been considered. 2. Replevin has been considered as 
 one of the actions, and so it has been classified by the code itself as 
 Action and Class No. V. It has always been treated as action, and 
 must be, in the nature of things ; for there must be, in the first place, a 
 declai'ation, count, or petition upon the cause of action, and followed 
 
 1 Code, I 170, 171, 172. s Code, § 173. 
 
 3 See code, from I 145 to 259. 
 
 * Code, I 145-168, and ante, this chapter, I 22. 
 
 6 Code, § 174-190; ante, oh. iii. § 7. . e gee code, § 
 
CHAP. IV.] PROCEDURE AND PRACTICE. 427 
 
 by proceedings, pleading, and separate judgment, as in any other 
 action.' 
 
 § 34. The code provides that replevin may be had to recover specific 
 personal property at the commencement of the suit, or any time before 
 answer, and claim immediate delivery. The order for the delivery of the 
 property shall be made by the clerk, when there is filed in his office in 
 the case an affidavit of the plaintiff, his agent or attorney, showing — 1. 
 A description of the property claimed. 2. That the plaintiff is the owner 
 of the property, or has a special ownership or interest therein, stating 
 the facts, and that he is entitled to immediate possession. 3. That the 
 property is wrongfully detained by the defendant. 4. That it was not 
 taken in execution on any order or judgment against the plaintiff, or for 
 the payment of any tax, fine, or amercement assessed against him, or 
 by virtue of an order of delivery issued in replevin under the code, or 
 any other mesne or final process issued against the plaintiff. 
 
 § 35. The sheriff shall execute the order by taking the property and 
 delivering a copy of the order to the person charged with the detention, 
 or leaving it at his usual place of residence. But the property shall not 
 be delivered to the plaintiff" until there is executed by one or more suffi- 
 cient sureties of the plaintiff an undertaking to the defendant in double 
 the value of the property, to the effect that the plaintiff shall duly prose- 
 cute the suit and pay all costs and damages that may be awarded 
 against him. In case such undertaking be not given within twenty- 
 four hours from the taking of the property, it shall be returned to the 
 defendant. The officer serving the order shall be responsible for the 
 return of the property, and for the sureties, if they were insufficient 
 when taken. 
 
 § 36. When the process is returned to court, the matters in issue are 
 to be tried as in other cases. If the property has been delivered to 
 the plaintiff, and he fails to prosecute the suit upon demurrer, the court, 
 at the instance of the defendant, shall impanel a jury to inquire into 
 the right of property and right of possession of defendant to the prop- 
 erty taken. If the right of property be found in the defendant at the 
 commencement of the action, or if he be found entitled to possession 
 only, in either case the jury shall assess such damages for the defend- 
 ant as are right and proper; for which, and costs, the court shall render 
 judgment. And in the like case, when the jury shall find, upon issue 
 joined, for the defendant, the like proceedings and judgment are had. 
 But where the jury finds for the plaintiff upon the issue, or on inquiry 
 of damages, upon default, they shall assess adequate damages to the 
 plaintiff for the illegal detention, for which, with costs, the court shall 
 render, judgment against the defendant; where, however, the property 
 
 1 See code, from g 174 to 190, and ante, B. iii. ch. iii. g 7. 
 
428 * CIVIL LA W. [book hi. 
 
 has not been taken, or been returned to the defendant for the want of the 
 undertaking, the action may proceed as one for damages only, and the 
 plaintiff shall be entitled to such damages as are right and proper ; but 
 if the property be returned for the want of the undertaking, the plaintiff 
 shall pay all costs made by taking the same. 
 
 § 31. 3. Attaclimenl has been considered as part of the process in cer- 
 tain cases (to which reference is had),^ though it may be well con- 
 sidered as one of the provisional remedies, which should be well con- 
 sidered in practice. 
 
 § 38. 4. Injunction may also with propriety be arranged as a pro- 
 visional remedy ; but as it properly belongs to, and has ever been 
 considered as a part of, equity, the subject will be deferred until proceed- 
 ings in equity are considered. When the pending suit is one strictly at 
 law, and not a case in equity, the proceedings by injunction are auxiliary 
 to, and in aid of, the action at law, and in that case there must be a pe- 
 tition stating the grounds of the prayer of the injunction ; the question 
 of the allowance of the injunction, the pleadings, and other proceedings, 
 as in cases in equity. 
 
 §39. 5. Receivers, another provisional remedy, is the last subject 
 of this head of the code. It provides that a receiver may be appointed 
 by the supreme court, the district court, or by the court of common 
 pleas, or any judge of either, or in their absence from the county, by the 
 probate judge :' 1. In an action by a vendor to vacate a fraudulent 
 purchase of property, or by a creditor to subject any property or fund 
 to his claim, or between partners or others jointly owning or interested 
 in any property or fund, on the application of the plaintiff, or of any 
 party whose right to or interest in the property or fund, or the pro- 
 ceeds thereof, is probable, and where it is shown that the property or 
 fund is in danger of being lost, removed, or materially injured. 2. 
 In actions for the foreclosure and sale of mortgaged property, where 
 it appears that the property is in danger of being lost, removed, or 
 materially injured, or that the condition of the mortgage has not been 
 performed, and that the property is probably insufficient to discharge 
 the mortgage debt. 3. After judgment, to carry the judgment into effect. 
 4. After judgment, to dispose of the property according to the judg- 
 ment, or to preserve it during the pendency of an appeal, or when an 
 execution has been returned unsatisfied, and the judgment debtor re- 
 fuses to apply the property in satisfaction of the judgment. 5. In cases 
 provided in the code and by special statutes, when a corporation has 
 been dissolved, or is insolvent, or in imminent danger of insolvency, or 
 
 1 See ante, B. iii. eh. iii. g 20-26 ; cf. code, g 226-236. 
 
 2 Code, I 253-259. 
 
CHAP. IV.] PROCEDURE AND PRACTICE. 429 
 
 has forfeited its corporate rights. 6. In all other cases where receivers 
 have heretofore been appointed by the usages of courts of equity. 
 
 § 40. No party, or attorney, or person interested in the action shall 
 be appointed receiver. Before entering upon his duties the receiver 
 must be sworn to perform them faithfully ; and with one or more sure- 
 ties approved by the court or judge, execute an undertaking to such 
 person, and in such sum as the court or judge shall direct, to the effect 
 that he will faithfully discharge the duties of receiver in the action and 
 obey the orders of the court therein. 
 
 § 41. The receiver has, under the control of the court, power to bring 
 and defend actions in his own name, as receiver, to take and keep posses- 
 sion of property, to receive rents, collect debts, to compound for and com- 
 promise the same, to make transfers, and generally to do such acts re- 
 specting the property as the court may authorize. Funds in the hands 
 of a receiver may be invested upon interest by order of court, but not 
 without the consent of all the parties to the action. 
 
 § 42. When it appears that a party has in his possession, or under 
 his control, any money or other thing capable of delivery, being the 
 subject of the litigation, and held as trustee for another party, or belongs 
 to or is due to another party, the court may order the same to be de- 
 posited in court, or delivered to the party, with or without security, 
 subject to further order of the court. Whenever any such order is 
 disobeyed, the court, besides punishing the disobedience as for contempt, 
 may order the sheriff to take the money or thing, and deposit or deliver 
 it in conformity with the direction of the court. 
 
 § 43. The residue of practice, in the course of the prosecution of an 
 action or suit to its termination, will be treated in connection with the 
 subsequent subjects of this book, as Pleadings, Evidence, Trial, Judg- 
 ment, Execution, Error, and Equity, — much or all of which might be 
 properly considered under the head of Practice or Procedure, but which, 
 as a part of this work, will be more conveniently considered as part of 
 the subsequent chapters. 
 
430 CIVIL LA W. [book hi. 
 
 CHAPTER Y. 
 
 PLEADING. 
 
 § 1. In the natural order of things, and according to the course of the 
 common law, when the party plaintiff has commenced his suit, and has 
 brought the defendant by proper process before the court to answer, the 
 court, as a necessary preliminary step to the trial and decision of the 
 case, would call upon the parties to state severally their respective 
 case: — the plaintiff, his cause of complaint; and the defendant, his 
 grounds of defense. This is done in one way or another in all systems 
 of jurisprudence. This altercation of the parties, at common law, is 
 called the pleadings ; and something very much like it is stated in the 
 Institutes of Justinian, as the course of pleading in the Roman civil law. 
 There the plea 01* answer of the defendant to the action of the plaintiff 
 was called' " excepiio." " It follows," says the Institutes, " exceptions 
 have been introduced into excuses for the defense of the party cited." 
 . . . . " Sometimes an exception, which appears at first view to be 
 valid, is not so ; and when this happens, an additional allegation is 
 necessary in aid of the plaintiff, called a replication." .... "It also 
 sometimes happens that a replication, replicatio, at first appears con- 
 clusive, though it is not so ; in this case another allegation, called a 
 duplication, duplicatio, may be offered by the defendant." " And when 
 this is wrongfully urged against the plaintiff, be may also in his turn 
 put in another, which is termed a triplication, triplicatio." 
 
 § 2. Such was the course of pleading under the civil law, and it cor- 
 responds with that of the common law. The Institutes illustrates not 
 only the propriety, but the justice and necessity of one party having an 
 allegation after another, until one of the parties come to a negation of 
 the affirmative allegation of the other, and states it thus : " As if a 
 creditor should covenant with his debtor not to sue hira, and the con- 
 trary should afterward be agreed between them, in consequence of which 
 the creditor brings an action, to which the debtor excepts, alleging the 
 agreement not to sue ; in this case the exception would be of weight, as 
 such an agreement was actually made, although another was made after- 
 ward to a contrary effect ; but, as it would be unjust that a creditor 
 should be thus concluded, he is allowed to plead the subsequent com- 
 pact by way of replication."^ And this is in exact conformity with 
 
 ' See Cooper's Justinian, 365-871, lib. iv. tit. xii. et xiv. 
 ' Lib. iv. tit. xiv. ^ 
 
CHAP, v.] PLEADING. 431 
 
 wliat would be the pleading at common law at the present day. But 
 the case put by the Institutes might be carried still further, as the de- 
 fendant might allege that the last agreement — the release — was procured 
 by fraud or duress. Thus, the contest of the parties is reduced to the 
 fasX question put, — the last allegation made ; for all the facts alleged in 
 the previous pleadings must necessarily be admitted by it, and which 
 would reduce the question in controversy to the validity of the release. 
 Thus, the pleadings of the parties in an action under the civil law, as 
 illustrated in the Roman jurisprudence more than fifteen hundred years 
 ago, illustrate the theory of pleadings at common law, and agree with 
 our plea, replication, rejoinder, and sur-rejoinder, etc., only they are 
 known in the Roman law by their Latin names. 
 
 § 3. When the party defended had been duly summoned, or process 
 duly served, be was bound to make his appearance in court, and answer 
 there what was alleged against him, or abide the consequences, which 
 were, that judgment and proceedings would be had against him by de- 
 fault. The several statements made by the parties, for the purpose of 
 informing the court and each other of the precise matter in controversy, 
 by which the plaintiff set forth his claim and cause of action, and the 
 defendant his grounds of defense, are called the pleadings, which are 
 defined to be the mutual altercations of the parties, — plaintiff and de- 
 fendant, — by which the parties are respectively informed of the claim 
 and position of each, and enable the court to know the subject of their 
 controversy, and to pronounce j-udgment upon tlM3 subject-matter of the 
 litigation. 
 
 § 4. According to the common law, these pleadings were had in court 
 after the process was issued and returned, and in very ancient times 
 they were had, viva voce, before the court, and, when fully settled 
 upon, were reduced to writing by an officer of the court, and made a 
 part of the record. But in process of time it became the practice for 
 the parties, or their attorneys, — each party for himself, — to procure his 
 pleading to be drawn up within the rule and filed, each, alternately, until 
 the issue was made up, and this was done out of court or in vacation, so 
 that the court was not troubled with it until the case came on to a trial, 
 or some motion was made or question raised in the progress of the case. 
 
 § 5. These pleadings were required to be drawn up with some care 
 and skill, and to contain only the facts of the party's case, without the evi- 
 dence upon which the facts of the case rested, or the arguments that might 
 be adduced to support them. The facts should be set forth in a logical 
 and legal form (which last only means that it should be in the cus- 
 tomary form) ; should conform to the nature and form of the action, 
 and be adapted to bring out the point in controversy, which is called 
 the issue. These requisites applied to all the pleadings, whether they 
 were the pleadings on the part of the plaintiff or those of the defendant. 
 
432 CIVIL LAW. [book hi. 
 
 § 6. In stating the case which constitutes the subject-matter of the 
 party's allegation in the altercation, it is the facts and the facts only 
 that should constitute the matter stated in the pleading ; for all matters 
 of law are judicially noticed by the court, and supposed also to be known 
 by the adverse party. And as it is only the facts that are required in 
 developing the issue and ascertaining the point in controversy, the cir- 
 cumstantial evidence upon which such facts rest, as well as any argu- 
 ment in support of them, should be equally and carefully excluded. 
 The matter of evidence, though essential upon the trial of the facts, if 
 put in issue, and to be found one way or another by the jury, is super- 
 fluous and redundant in ascertaining the facts upon which each party 
 relies, so as to enable the court to apply the law and decide the case, 
 and any argument in support of the case would then be equally out of 
 place and objectionable. 
 
 § 7. These principles being premised as to the pleadings in general, 
 it is requisite now that the nature and order of pleadings should be con- 
 sidered, each for itself. The first of these is the declaration (or narra- 
 tion, narratio), which is a more precise and definite statement of the 
 facts of the plaintiff's case than was contained in the process, in case 
 the suit was not compromised and settled upon the service of process, 
 and therefore further proceedings became necessary. In that event the 
 plaintiff, or his attorney, files with the (-lerk, within the time prescribed 
 by the rules of the court after the return of the process, his declaration. 
 This paper, at its commencement, contains the name of the county in 
 which the proceedings are had, and is called the venue, which, in local 
 actions, must always be in the county where the subject-matter of the 
 suit is situate. But in transitory cases the action may be laid, accord- 
 ing to the practice that prevailed in this country, in any county in 
 which the defendant, or any one of a number, might be found, so that 
 process could be served upon him there ; and if the case had other 
 necessary parties in other counties, they were summoned by due process 
 issued to such other cotmties. 
 
 § 8. The declaration then commences with, "A B, the plaintiff, com- 
 jjlains of C D, the defendant, for that," and then proceeds to allege in 
 short and precise terms the circumstances of the plaintiff's complaint, — 
 as in cases upon contract, — that the defendant, at a certain time and 
 place, made his certain agreement upon a certain consideration, by 
 which he promised to do for the plaintiff a certain matter, and then 
 allege the breach of such promise, and claim the damages sustained by 
 means thereof. Or, in case of a tort, state in the same manner the par- 
 ties and form of action, and allege the commission of the wrong and 
 injury to the plaintiff or his property, and aver the damages, — either 
 general or special damages sustained thereby, — and conclude by prayer 
 
CHAP, v.] PLEADING. 433 
 
 of judgment. Such is the nature of declarations, now for many years 
 in use, where the common law practice prevailed. 
 
 § 9. The following rules and principles of pleading are in a great 
 measure applicable to all pleadings, but more especially so as to the 
 declaration. All facts alleged in good pleading consist — 1, of the gist 
 or substance of the complaint or defense ; or 2, of matter of inducement, 
 or, as it is sometimes termed, conveyance ; or 3, matter of aggravation. 
 Whatever else is stated in any part of the pleading is but surplusage 
 and redundancy. What is termed form in pleading constitutes no dis- 
 tinct matter, but simply the manner in which the matter pleaded is 
 stated ; and as a matter of convenience both to the court and the par- 
 ties, should be adhered to, so that the court should not be troubled 
 with questions upon new and unheard-of matters. 
 
 § 10. 1. The gist of the complaint or defense is the essential grounds, 
 ov principal subject-matter of it; or that without which no legal cause 
 of complaint can appear on the one hand, or no legal ground of the 
 defense on the other, however perfect, in point of form, the pleading 
 may be. Of this nature is the consideration of the defendant's promise ; 
 the performance of a condition precedent, in an action on a contract ; 
 the conversion in trover, etc. 
 
 § 11. 2. Matter of inducement is that which is merely introductory 
 to the essential ground or substance of the complaint or defense, or in 
 some respects explanatory of it, or of the manner in which it originated 
 or took place. Thus, in trover, the loss and finding of the plaintiff's 
 goods ; in an action for slander or libel, the character or circumstances 
 of the plaintiff; and in an action for a nuisance to a house or lands, the 
 plaintiff's possession of the subject of the injury, — are respectively 
 matters of inducement to the subject or gist of the action. 
 
 § 12. 3. Matter of aggravation is that which, in actions for forcible 
 injuries or torts, is introduced to show the circumstances of enormity 
 under which the principal wrong complained of was committed, with a 
 view to the recovery of special damages therefor. Thus, if the plaintiff 
 in trespass for breaking and entering his house superadds to his state- 
 ment of the complaint that the defendant, at the same time, beat his 
 servant, scattered his goods, and committed other wrongs, these super- 
 added facts are only matters of aggravation, which require neither proof 
 nor answer, as a matter essential to the maintenance of the case, but as 
 an incident to the principal matters ; for the breaking and entering the 
 house being alone the gist of the action.' Whatever sufficiently answers 
 the substance or gist of the action is, of course, a suffilbient answer to 
 the whole complaint, including all matters of aggravation; and this is 
 equally true of matters of inducement.' 
 
 1 Gould's PI. 51, eh. iii. | 7. 
 28 
 
434 CIVIL LA W. [book m. 
 
 § 13. Although it is a fundamental rule that all pleadings should be 
 trae, yet certain statements called fiction are allowable and frequently 
 occun-ing. These were devised and allowed in pleading for their con- 
 venience and the advancement of justice ;' and, like matter of induce- 
 ment, requires, on the one hand, no proof, except what incidentally 
 arises out of the evidence, which proves the gist of the action ; so, on 
 the other, they cannot be traversed, as permitting it would defeat their 
 object, and would put the issue upon an immaterial averment, instead 
 of the gist of the action. As in a case where there had been a con- 
 version, and the plaintiff complained that he bad lent the property to 
 the defendant, and that he had wrongfully converted it to his own use. 
 Upon the trial it appeared that the property came into the defendant's 
 possession not by lending but by finding. This being objected to as a 
 variance, the court would decide that the gist of the action was the 
 conversion, and not the question of either lending or finding, as that 
 was immaterial to the justice of the case. This would enable the 
 pleader thereafter to allege, as a matter of convenience in all cases of 
 conversion of property, that it came into the possession of the defendant 
 by finding, as is done in all cases of trover and conversion. So in cases 
 where the law, from the equity of the case will imply a promise to pay, 
 the pleader will (as a fiction) allege an express promise to pay, which, 
 on the trial, is not proved by an express promise, but by proof of such 
 circumstances as that the law will imply the promise. In neither of 
 these cases will the rules of pleading permit the defendant to plead, 
 putting in issue the actual finding in one case, or the express promise 
 in the other ; but the gist of the inquiry will be, Was there a wrongful 
 conversion in the one case; or circumstances from which the law, as a 
 matter of equity, will imply the promise in the other ? These fictions 
 are therefore in aid of law and the advancement of justice. 
 
 § 14. Pleadings are required to be certain. At common law it was 
 said that there were three degrees of certainty, viz.: certainty to a com- 
 mon intent, certainty to a certain intent in general, and certainty to a 
 certain intent in every particular. This is a jargon of words which is 
 hard to define or illustrate ; but it is true that courts have required a 
 greater degree of certainty in some pleadings, which the law did not 
 regard with as much favor, as in others. The highest degree of cer- 
 tainty is required in certain pleas that are regarded in law as odious 
 or unfavorable, as pleas in estoppel and dilatory pleas ; because these 
 pleas tend to defeat suits upon grounds unconnected with their merits. 
 But otherwise, pleadings are generally construed by the same rules as 
 
 1 Gould's PI. 57, ch. iii. ^ 18, etc. Partisan writers frequently complain of 
 fiction in pleading, without any just ground for it, or real cause of complaint, but 
 is frequently made a humbug and a matter ad captandum. 
 
CHAP, v.] PLEADING. 435 
 
 any other writings between the parties. And, generally speaking, the 
 pleader, as a rule, should, in the statement of every material allega- 
 tion, state the time, place, number, and such circumstances as the sub- 
 ject-matter is naturally susceptible of, in order to identify and render 
 it reasonably certain. Yet a variance in any of these particulars is 
 immaterial, except when the date of a record or other writing, or the 
 recital of its contents, is called in question, when it is affected as a 
 question of Identity. 
 
 § 15. Although a variance in an allegation as to time or place may 
 be immaterial, except where material to identify a writing or a locality, 
 and it becomes material as a part of the description, yet an allegation 
 in a pleading must not be ambiguous or of a doubtful meaning. As 
 where a party was bound to make a release of certain land, should 
 plead that he did execute a release, his plea would be bad, for it would 
 be doubtful if the release was of the same land. So if it became neces- 
 sary in any pleading to allege that a matter was done or " procured by 
 fraud," it will not do to make the allegation in those words, but must 
 state those acts or facts that constituted- the fraud, so that the court 
 could judicially see that it amounted to a fraud, if true. Again, an alle- 
 gation must be direct and positive, and not contain a negative pregnant, 
 — that is, a negative expression which may imply an affirmative ; or it 
 must not be argumentative, or in the alternative, or by way of recital. 
 But a general mode of statement is suflScient, where the facts lay more 
 in the knowledge of the opposite party than of the party pleading, or 
 where the matter was multifarious and tended to great prolixity. 
 
 § 16. Every good pleader would observe these rules ; they necessa- 
 rily exist in the nature of things, and accord with logic. At common 
 law the objection to an allegation might be either to its surplusage or 
 to its insufficiency, because it was irrelevant or uncertain. When the 
 matter was insufficiently stated, the objection might be taken by de- 
 murrer,^ but that which was a mere surplusage or irrelevancy the objec- 
 tion' was not by demurrer ; for it was considerered that the allegation 
 which was in itself sufficient was not destroyed or vitiated by that 
 which was unnecessary or irrelevant to it, upon the maxim that utile 
 per inutile non vitiatur, but was corrected by a motion to the court to 
 strike out such objectionable matter.' Our code adopts these principles, 
 but takes a little different course in practice. It provides:' " If redun- 
 dant or irrelevant matter be inserted in a pleading, it may be stricken 
 out on motion of the party prejudiced thereby. And when the allega- 
 tions of a pleading are so indefinite and uncertain that the precise nature 
 of the charge or defense is not apparent, the court may require the plead- 
 ing to be made definite and certain by amendment." The cases where 
 
 ' See Demurrer, post, J 21-27. « Stephens's PI. 424, « Ohio Code, ? 118. 
 
436 CIVIL LA W. [book m. 
 
 the court will thus act, and the rules by which they will be governed 
 in " determining' that the precise nature of the charge or defense is so 
 indefinite and uncertain," or " when redundant or irrelevant," are not 
 yet settled ; but the rules of the common law, as practiced in modern 
 times, will greatly aid, and Avhen well observed, pleading under the 
 code cannot be obnoxious to objection. 
 
 § IT. But having stated the manner that the facts constituting the 
 party's case should be alleged, it is now proper to state those rules 
 which render it unnecessary to allege certain facts and circumstances 
 connected with or involved in the main facts and gist of the case. 
 These are: 1. It is unnecessary to state matters of which the court 
 takes notice ex officio. All matters of law fall within this rule ; for 
 the judges are bound to know the law, and apply it to the facts of the 
 case. This includes not only the positive law of the land, as the Con- 
 stitution of the Union and of our own State and their public statutes, 
 but whatever makes up and constitutes the law of the land. And in 
 the like manner they take judicial notice of whatever constitutes a part 
 of the public interest and welfare, as the division and course of time ; 
 the division of the Union into States and districts ; the division of our 
 own State into counties and judicial districts ; our known language 
 and terms of art, our weights and measures, and the currency; the 
 course of legislative proceedings, and the like, which may be con- 
 sidered as part of the public affairs.' 
 
 § 18. 2. It is not necessary to allege circumstances necessarily im- 
 plied.' As where some legal act is averred to have been performed, 
 as the revocation of a power, or the execution of a will ; the allega- 
 tion of the performance of any such act will include, by implication, 
 whatever is necessary to render the act valid, until the contrary is 
 proved. 
 
 §19. 3. It is not necessary to allege what the law will presume. 
 As a plaintiff need not allege that he was a person of full age, for that 
 is presumed until the contrary appears or is put in question. So in an 
 action for defamation, it is not necessary to allege that he is not a thief, 
 or any other matter alleged against him, for the law presumes him 
 innocent until the contrary is shown. 
 
 § 20. 4. Although the rules of pleading require that every material 
 allegation be made as specific and certain as the matter is reasonably 
 capable of, yet this does not require any greater particularity than the 
 nature of the thing pleaded will conveniently admit. Thus, in an 
 action for injury to the plaintiff's goods, the quantity must generally be 
 stated ; yet if they be lost or destroyed, as, for instance, the plaintiff's 
 trunk, so that number, weight, or measure cannot be known, or con- 
 
 1 See Swan's PI. 164. « Stephens's PI 346. ' Ibid. 354. 
 
CHAP, v.] PLEADING. 437 
 
 veniently ascertained, that certainty will not be required. So in an 
 allegation that the defendant had extorted from the plaintiff, by duress, 
 a bond payable to him and others unknown, he was not required to be 
 more particular as to the names of the payees. 
 
 § 21. The plaintiff having filed his declaration as required by the 
 rules,^ it becomes necessary for the defendant to consider how he shall 
 meet the case made against him in his defense. The rule is, that he 
 must either demur or plead, or judgment will be taken against him by 
 default. The case of a demurrer must be first considered. This is a very 
 simple paper or pleading in form and substance, and it merely alleges 
 "the declaration is not sufBcient in law." This was the proper plead- 
 ing where it was seen that the plaintiff, according to the statements and 
 allegation of his declaration, had no cause of action. 
 
 § 22. A demurrer alleging that the pleading objected to " is not suf- 
 ficient in law," necessarily required the court to decide that matter 
 without proceeding any further. If, upon a demurrer to the declara- 
 tion, the court found that the statement of the plaintiff's case was in- 
 sufBcient in substance for the recovery of a judgment, the court would 
 render judgment against the plaintiff on the demurrer; and that would 
 be the end of the case, unless the plaintiff, upon satisfying the court 
 that his case, though unfortunately stated, had real merits in it, ob- 
 tained leave to amend his declarations on payment of costs. But if the 
 court found the declaration substantially sufBcient, and as a demurrer 
 is always upon the theory that facts alleged in the pleading it objects 
 to are true in the manner and form stated, the court, upon such ad- 
 mitted facts, will render judgment in favor of the plaintiff, unless the 
 defendant, upon satisfying the court that he filed the demurrer in good 
 faith, and had probably a defense on the merits that ought to be heard, 
 obtained leave to withdraw his demurrer, on payment of costs, and file, 
 upon the terms thus required, an issuable plea. 
 
 § 23. The demurrer may be for insufficiency either in substance or in 
 form ; that is, that the case shown by the opposite party is essentially 
 insufficient, or in so inartificial a manner that the court could not ren- 
 der judgment upon it, and preserve due form in the administration of 
 justice. But it was the rule of the court not to notice upon demurrer 
 mere matter of form, unless it was specially pointed out in the demurrer. 
 This caused demurrers to be classed as general demurrer or special 
 demurrer. The first were such as have been stated, but the last were 
 
 ' While the practice in Ohio, before the code, was in acooi-dance with the 
 common law, the practice was to file the declaration with the clerk, within the 
 rules of the court, where the opposite party must notice such filing. This is the 
 usual practice in this country. In England a copy of the declaration or narr. is 
 served on the defendant or his attorney. 
 
438 CIVIL LA W. [book hi. 
 
 such as, in addition to the ordinary form of demurrer, added words that 
 particularly and specially pointed out the particular matter or want of 
 form objected to. Mere form would not be noticed as an objection by 
 the court only on special demurrer; and any unimportant matter of 
 form objected to would cause the demurrer to be considered as frivolous, 
 and on that account, on motion, subject to be ordered by the court to be 
 stricken from the files. So that mere matter of form was but little re- 
 garded, unless in the due administration of justice it was important, as 
 a matter of convenience and tended to facilitate business, that it should 
 be so observed. Demurrers, therefore, were but little regarded, " so 
 that sufficient matter appeared in the pleading, upon which the court 
 could give judgment according to the very right of the case.'" Such 
 special demurrer answered all the purposes of a general demurrer ; but 
 the latter did not answer the purpose of the former, as has been shown. 
 It should be remembered" that upon demurrer, surplusage or irrelevant 
 matter was not regarded, upon the maxim that that which was good was 
 not vitiated by that which was useless, but might be stricken out of the 
 pleading, on motion, when it was objectionable to be there. 
 
 § 24. Demurrers may be filed to any subsequent pleading as well as 
 to the declaration when it was in the same manner objectionable. 
 When the demurrer was overruled, the court would render the proper 
 judgment against the demurrant ; and in case the demurrer was sus- 
 tained, judgment was accordingly given in its favor. This would end 
 the case, unless the court, upon motion, were satisfied to give leave to 
 the party in fault, upon the real merits of his case, to withdraw his faulty 
 pleading and amend, so that the faulty course of pleading be rendered 
 sufficient, if in fact and in law it could be. But where that could not 
 be done, the case would have to rest where it was, for the court had 
 already pronounced the law upon the facts and the law of the case as it 
 appeared in the record. 
 
 § 25. But when the defendant finds that a demurrer will not answer 
 his purpose in his defense, and assumes that he has a meritorious de- 
 fense, he must file his plea in due time, or submit to be in default. The 
 plea sets forth the facts that constitute the grounds of his defense, and 
 his objection in matter of fact, to the plaintifTs right of maintaining his 
 action. If it were only a question of law, that would be properly raised 
 by the demurrer — pleas only deal in facts. In all systems of jurispru- 
 dence this was necessary. In common law this setting forth of the 
 defendant's objection to the action of the plaintiff is called his plea; 
 in the Roman civil law it was called his exceptio; in chancery it was 
 usually called his answer. But be it called by whatever name, it 
 amounts to the same thing, and must be governed by the same princi- 
 
 iSteph. PI. 140-42. ! Ante, ? 16. 
 
CHAP, v.] PLEADING. 439 
 
 pies, while the objects of all are the same — the administration of the 
 law and justice between the parties litigant. 
 
 § 26. To illustrate, let the case stated in Justinian's Institutes be 
 taken,' as where a creditor sued his debtor for the payment of a debt. 
 When the parties came before the prffitor the plaintiff was required to 
 state his form of action and cause of complaint, — which was called 
 intentio edere actionem, which may be considered as equivalent to the 
 declaration. If the defendant excepted that the action was improper, or 
 the intentio insufficient to enable the plaintiff to recover, and if the 
 praetor so adjudged it, the case was then determined against the plaintiff, 
 unless the praetor gave leave to amend. This was equivalent to a de- 
 murrer to the declaration ; but if the proceedings on the part of the 
 plaintiff were sufficient, the defendant must answer, or judgment would 
 go against him. This he did by alleging in his exceptio the fact that 
 the plaintiff afterward agreed not to sue him. If the plaintiff objected 
 before the praetor that this in law was not a sufficient answer, — exceptio, — 
 this was equivalent to a demurrer to a plea. When that question was 
 settled, and if found sufficient, the plaintiff must put in his replication, 
 as before stated. These objections to the sufficiency of the proceedings, 
 raised before the praetor, were precisely like our law, — in questions raised 
 on demurrer, — and the law of the case was thus settled by the praetor ; 
 but when the parties alleged one new fact after another, by way of con- 
 fession and avoidance, that must be replied to by the other party until 
 they were at issue, — i.e. an allegation on one side and a direct denial on 
 the other. The case was then sent by the praetor to be tried, upon the 
 facts thus put in issue, before the judices, — usually a number of persons 
 selected for that purpose, much like our jury. Although the raising of 
 a question of law on the proceeding before the praetor was not known 
 by the name of demurrer, yet the objection was raised in a less formal 
 and scientific manner ; and the system of thus raising and deciding 
 questions of law existed there, and must necessarily exist in all systems 
 of jurisprudence ; and it makes but little or no difference in practice 
 whether the objection is taken on motion or on demurrer. 
 
 § 27. The principles of pleading as stated as applicable to declara- 
 tions and demurrer, are, generally, equally applicable to any and all 
 other pleadings. When a demurrer is filed to any pleading, no further 
 pleading is required or allowed, except to join in demurrer until all 
 questions of law raised by it are determined, unless it be to get rid of it 
 by a motion to the court to order it to be stricken off the files, because 
 
 I See ante, this ch. ? 2, and Just. Inst. lib. iv. tit. xiv. Coop. Just. 370. See 
 also Smith's Gre. and Eoman Antiquities, art. Action ; 1 Starkey's Ev. 4, in note. 
 Comparative jurisprudence is of grfeat advantage to the student, as comparative 
 anatomy, etc. are in other sciences. 
 
440 CIVIL LA W. [book hi. 
 
 it is frivolous ; or because it is a general demurrer and not a special 
 demurrer, and the only question that can be raised is a mere matter of 
 form, "which did not interfere with the court in giving judgment ac- 
 cording to the right of the cause. '" There can be no demurrer to a de- 
 murrer; for the demurrer is a challenge to the correctness of the plead- 
 ings and the law of the whole case as it appears on paper. It is, there- 
 fore, a rule — (1) that a demurrer admits all such matters of fact as are 
 sufficiently pleaded ; and (2) the court will consider, on demurrer, the 
 whole record, and give judgment for the party who appears to be enti- 
 tled to it. The court will go back and search for the first error, and 
 give judgment accordingly. Thus, if on demurrer the court find the 
 replication bad, but find a substantial fault in the pleas, they will 
 give judgment, not for the defendant who demurred, but for the plaintiff, 
 provided the declaration be good; but if the declaration also be bad in 
 substance, then, upon the same principle, judgment would be given for 
 the defendant. Thus the case would have to stand, unless the court, 
 on being satisfied that there is merit in the case, should give leave to 
 amend. To this the only exception worthy of notice is, that if the 
 plaintiff demur to a plea in abatement, and the court decide against the 
 plea, the judgment will be respondeat ouster (that the defendant answer 
 over), without any regard to any defect in the declaration. 
 
 PLEAS. 
 
 §28. When the defendant, upon the investigation of the plaintiff's 
 case, as stated in the declaration, comes to the conclusion that there 
 is no ground of demurrer, or in case his demurrer has been overruled, 
 with leave to plead, he must then consider what he can plead, for the 
 defendant is bound to answer the plaintiff's declaration by either a de- 
 murrer or a plea, or he will be in default. The demurrer, as has been 
 seen, is intended to raise an objection, by way of a question of law, to 
 anything that appears in the record thus far in the proceeding of the ac- 
 tion and declaration, and this he may do by a demurrer to one part and 
 plead to another part, when the question is capable of such division, as 
 where there are two or more counts or causes of action joined in the 
 declaration. But in whatever way the necessity for a plea may arise, 
 the nature and quality of a plea will be the same, — to answer the plain- 
 tiff 's claim as set forth in the declaration, by stating new facts that are 
 a logical and legal answer to it, or by a direct denial of facts set up as 
 the foundation of the plaintiff's claim. Whenever a matter is thus 
 affirmed on the one side and directly denied on the other, it is called 
 a traverse, which forms the issue between the parties, and which is the 
 
 1 Steph. PI. 141. 
 
CBAP. v.] PLEADING. 441 
 
 object of all pleadings, — to ascertaia the precise matter in issue between 
 the parties, — which will be the matter to be decided by the court and 
 jury in the determination of the case. 
 
 § 29. Pleas are divided in various ways as to their general character : 
 as into pleas dilatory and peremptory, and sometimes into — either to the 
 jurisdiction of the court, — in suspension of the action, — in abatement 
 of the writ or declaration, — or in bar of the action ; the three iirst be- 
 long to the dilatory class, — the latter to the peremptory. But the most 
 usual classification is, into pleas in abatement and pleas in bar ; under 
 the former would be arranged all dilatory pleas. 
 
 § 30. Dilatory pleas, or pleas in abatement, are such as raise some 
 legal or technical objection to the present mode of proceeding without 
 denying the cause of action, as pleading some fact showing that the 
 court has no jurisdiction ; or that the real cause of action required 
 another form of action ; or that the plaintiff was incapable, in the 
 present mode, of suing; or the defendant incapable of being sued; or 
 that there were other persons interested in the action who should be 
 made either party plaintiff or defendant. These are called dilatory 
 pleas, or pleas in abatement, because they delay and temporarily abate 
 the proceedings until the objection is removed ; sometimes requiring a 
 different action, and even sometimes the jurisdiction of a different court. 
 These pleas may be, to the jurisdiction, or to the action, or to the par- 
 ties, and only create a delay or temporary suspension in the proceed- 
 ings of the case, without calling in question the right of recovery upon 
 the cause of action itself; for a plea that would contract the right of 
 recovery upon the cause of action set forth in the declaration would do 
 it as a perpetual bar to the right of recovery, and is therefore called a 
 plea in bar, which is the distinguishing feature between pleas in 
 abatement and those in bar. 
 
 §31. Pleas in abatement, as they seldom go to the real merits of ac- 
 tion, are not received with so much favor by the court as pleas in bar, 
 and are therefore put under greater restriction ; as that they are re- 
 quired to be more strictly certain ; and where the matter pleaded is not 
 substantiated by the record, the truth of the plea must be sworn to ; and 
 where it is to the want and non-joinder of parties, the court of late 
 require that it be shown that the party on account of whom the plea 
 is pleaded is within the jurisdiction of the court, and that the place 
 of residence be stated. But in case a demurrer is filed to any of these 
 dilatory pleas, the judgment of the court, when against them, is not 
 of a peremptory and conclusive kind, but that he answer over, — re- 
 spondeat ouster ; for the issue raised upon it was not on the merits of 
 the action.' 
 
 iSteph. Plea. 50-52. 
 
412 CIVIL LAW. [book III. 
 
 § 32. A plea in bar is one that goes to bar and defeat the action, in 
 contradistinction to those that only go to delay or temporarily abate 
 the action. It is a substantial and conclusive answer to the claim set 
 up in the action. It must, therefore, either deny all, or some essential 
 part of the averment of the fact in the declaration ; — or, admitting them 
 to be true, allege new facts which obviate or repel the legal effect. In 
 the first instance, the defendant is said to traverse the matter of the de- 
 claration ; in the next, to confess and avoid it. Therefore, pleas in bar 
 may be divided into two classes : — pleas by way of traverse, and pleas 
 by way of confession and avoidance. 
 
 § 33. A plea by way of traverse is where the defendant by a direct 
 denial takes issue upon all or a material part of the declaration. In 
 this case the question between the parties being thus raised, by the 
 matter in difference being afBrraed on the one side, and denied on the 
 other, the traverser, by a formal tender of issue, with the words, "And 
 of this he puts himself upon the country" {i.e. a jury), and the opposite 
 party, it was said, doth the like, closed the pleadings, and the parties 
 were said to be at issue, and the question thus raised was called the issue. 
 But this traverse may not only occur between the declaration and the 
 plea, but between any subsequent pleading when such pleading prop- 
 erly occurs. 
 
 § 34. The plearmay traverse the declaration ordinarily in one of two 
 ways : — either by what is called a common traverse, which is a denial 
 of a material part of the declaration ; or it may be by what is called 
 the general issue, which is a traverse by an established formula, 
 adapted to each form of action, and putting in issue every material fact 
 in the alleged cause of action as in assumpsit: — "did not undertake 
 and promise in manner and form as the plaintiff has complained,'' etc.; or 
 in an action for a tort : — " not guilty of the supposed trespass," — or, " of 
 the supposed wrong and injury," etc. According to common law prin- 
 ciples of pleading, the traverse only put in issue what it directly or 
 necessarily controverted ; but the general issue was gradually permitted 
 not only to put in issue the material allegations of the declaration, but 
 to permit and require proof of facts, under certain established rules, 
 which were not by the natural meaning of the issue put in controversy. 
 But of late, wherever the common law rules of pleading have been ad- 
 hered to, this aberrance from the principle of a traverse at common law 
 has generally been restrained, and the rule adopted that the general 
 issue shall be restrained to their proper and ancient province, and so 
 confined that they put nothing in issue beyond a mere denial of some- 
 thing adversely alleged. Thus, the plea of the general issue of non- 
 assumpsit operates as a denial in fact of the express contract or prom- 
 ise alleged in the declaration, or of the matters of fact from which the 
 contract or promise alleged may be implied in law, but does not deny 
 
CHAP. Y.] PLEADING. . 443 
 
 the validity of the contract itself; for if there are other facts which 
 render the contract invalid, such facts should be specially pleaded.^ 
 
 § 35. So in the plea of the general issue : — not guilty in an action for 
 a tort ; as in trespass for the breaking and entering the plaintiff's close, 
 or for taking and carrying away the plaintiff's goods ; if in fact the 
 defendant did not break and enter the close in question, or take the 
 goods, the general issue, "not guilty," will be proper. But under this 
 plea the defendant cannot, in the first case, deny the plaintiff's posses- 
 sion, nor right of possession, of the close ; nor in the second case, the 
 plaintiff's property in the goods taken. What amounts to an excuse or 
 justification at common law must be pleaded, and cannot be given in 
 evidence under the general issue. The reason of this is, to prevent 
 surprise on the opposite party by unexpected evidence, out of the ob- 
 vious issue made up in the pleadings of the case. 
 
 § 36. Besides the plea of the general issue which produces a traverse 
 to the declaration, there are also what are denominated special pleas, 
 which are a traverse to the declaration by denying some one or more 
 of the essential facts of the declaration, instead of putting the whole in 
 issue, as is done by the general issue. It must be a special plea that 
 traverse some essential part of the declaration, without which the plain- 
 tiff cannot sustain his action, and must not amount to the general issue 
 by a traverse to the whole. If the defendant, by a special plea, should 
 attempt to traverse the whole declaration in some new and unex- 
 pected form, instead of the general issue known and familiar to the court 
 and parties, it is subject to a demurrer, on the ground that it amounts 
 to the general issue, under the aspect of a special plea. Such plea is, 
 therefore, more specific and particular, and sometimes denominated 
 special issue, by way of distinction from those that are called general 
 issue. 
 
 § 37. In pleading, there sometimes occurs, though not often, what is 
 called a special traverse.' For a long time, both at law and in chan- 
 ceiy, the technical formula commencing a special traverse were the 
 Latin words, " absque hoc,'' or their corresponding English translation, 
 " without this, that," etc. It sometimes happens that the pleader may 
 be desirous, when he is about to traverse something alleged by the op- 
 posite party, in order to make his traverse appear more reasonable, and 
 disclose more fully and frankly the grounds of it, to state the special 
 circumstances upon which his traverse rests. This he is not bound to 
 do, — for he might traverse without so disclosing, — and the traverse is 
 only the material part of his plea. As where the plaintiff alleges a cer- 
 tain state of facts by which it appears that he is entitled to recover, the 
 defendant, in his plea of a special traverse to it, may state the facts as 
 
 iStophens's PI. 158, etc.; 1 Ohit. PI. 541, etc. ^ Stephens's PI. 169, etc. 
 
444 I CIVIL LA W. [book hi. 
 
 inconsistent with the claim of the plaintiff, and then traverse in a formal 
 manner the material allegation of the plaintiff. The preceding matter 
 is called the inducement. This inducement is subject to these rules : 
 that it must not be so important a matter as to amount to a confession 
 and avoidance, nor be itself a traverse, nor subject to a demurrer, nor 
 to be traversed, nor necessary to be proved on the trial. It is a mere 
 inducement to the traverse. After the inducement, the plea continues 
 to the traverse, " without this, that the said" matter is as alleged by the 
 plaintiff. Other words of traverse will ansftrer instead of the absque 
 hoc, as et non. This may be illustrated by the case of a common con- 
 troversy, — where one person intending to deny the assertion of the 
 other, should commence by stating how the facts really were, and not 
 {etnon or absque hoc) as stated by the first. 
 
 § 38. For example, where the plaintiff claims title in himself, by alleg- 
 ing that Peter devised the land to him, and then died seised in fee ; and 
 the defendent pleads, by stating as an inducement, that Peter died seised 
 in fee, and intestate, and that the title was in himself as heir of Peter ; 
 without this, that Peter devised the land to the plaintiff. This traverse 
 is special ; the allegation of Peter's intestacy, etc. is the special induce- 
 ment, and the absque hoc, with what follows, is a special traverse of the 
 alleged devise: that is, a denial of it in the terms of the allegation.^ 
 
 § 39. It may here be remarked as a rule applicable to all the plead- 
 ings subsequent to the declaration, that whenever a party comes to a 
 traverse, he should tender an issue which for its form will depend upon 
 the subject-matter of the issue. If it be dependent upon a fact, it is, as 
 has been said, "and of this he puts himself upon the country ;" but if 
 it be a matter of record, then it is, " and this he is ready to verify in 
 such manner as the court shall order or appoint." But when the mat- 
 ter pleaded is not a traverse, — that is, a direct negative and afErmative, 
 and containing any new matter, — then the pleading must conclude with 
 a verification. Formerly it was customary to close a special traverse, 
 absque hoc, with a verification, but now it is customary, with more con- 
 sistency with principle, to close with a tender of issue to the country. 
 
 § 40. Pleas by way of confession and avoidance. The defendant 
 having concluded not to demur to the plaintiff's declaration, and that 
 he could not truthfully plead by way of traverse, he may still plead a 
 plea in bar, by way of confession and avoidance, some fact which in 
 effect admits the facts constituting the ground of the plaintiff's cause 
 of action, but is a logical and legal answer to it. It is the setting up 
 of some new fact, which, though consistent with the facts claimed by 
 the plaintiff, is still an answer to and takes away the right of the plain- 
 tiff to maintain his action. These pleas are distinguished, in accordance 
 
 1 3 Bouv. Inst. 297. 
 
CHAP, v.] PLEADING. • 445 
 
 ■with their subject-matter, as either pleas in justification or excuse, or 
 as pleas in discharge o/the plaintiff's right of action.' Plea oi justifi- 
 cation or excuse goes to the foundation of the action, and shows that 
 the plaintiff never had a just cause of action, because the act complained 
 of was lawful, or the refusal justifiable ; as in an action for assault and 
 battery, a plea of son assault demesne; or in an action upon a contract, 
 a plea of its being procured by fraud or duress. But a plea in dis- 
 charge does not contest the original cause of action, but shows that 
 though the right of action once existed, it is discharged or released by 
 some matter subsequent, as a payment, a release, or a discharge by 
 bankruptcy. A matter of confession and avoidance may be set up as a 
 bar in the replication or subsequent pleadings, as well as in the plea, 
 as an answer to the previous pleading, yet they are not then subject to 
 the classification of justification or discharge. 
 
 § 41. It is a universal rule of pleading, that every pleading, that 
 assumes to be an answer to a previous pleading, admits whatever such 
 previous pleading contains that is well pleaded, that it does not con- 
 trovert, either by a traverse or by a matter of confession and avoidance. 
 Whenever, therefore, a new matter is pleaded by way of avoidance, it 
 of course admits the facts to which it is an answer, that it does not avoid 
 by a fact, which is a logical and legal answer to it. If it be not such 
 an answer, it is subject to be demurred to, or' treated as a nullity. 
 Thus, where the plaintiff sues to recover upon a contract made be- 
 tween him and the defendapt ; to this the defendant might plead a 
 special plea in bar, by way of confession and avoidance, that the plain- 
 tiff, after making the contract, had released him from the perform- 
 ance of it. As this is a legal answer to the action, the plaintiff must 
 reply to it, or fail in his action. But if the defendant had pleaded that 
 one C D had, for a certain consideration, released him from the con- 
 tract, the plea would be vicious, as the release of C D, an apparent 
 stranger, would be no legal answer to the action: the plaintiff might 
 demur to it. If, however, it be a fact that the release, which the de- 
 fendant did set up in his plea, was extorted from the plaintiff by duress, 
 he might plead that fact in his replication as answer to the defendant's 
 plea ; and this again would be a confession and avoidance of the plea. 
 Now, in this case, the plea, by the rules of pleading, admits and con- 
 fesses the facts stated in the declaration, and the replication does the 
 same to the plea, and in each case the effect of the admission is avoided 
 by the new fact set up in the same pleading. The replication set up 
 the duress as a bar to the effect of the release. The defendant must 
 answer the replication in some manner, or the plaintiff would be en- 
 titled to take judgment by default. This he may do by denying the 
 
 1 Stephens's. PI. 199. 
 
446 CIVIL LA W. [book hi. 
 
 truth of the duress alleged in the replication. This would be done by 
 the defendant in his rejoinder traversing the allegation of the duress 
 and tendering issue on that traverse. If the plaintiff thereon join issue, 
 the question is then to be determined by a jury. If found in favor of 
 the plaintiff {i.e. that the release was obtained by duress, and void), he 
 will be entitled to have his damages assessed, and judgment. But if 
 the verdict be for the defendant {i.e. a good release), he will be entitled 
 to judgment in his favor. 
 
 § 42. It has been sometimes the practice in these pleas of confession 
 and avoidance, to commence with a formal admission of the matter to 
 be answered and avoided, with the words, "true it is that," etc., and 
 then plead in answer to the matter thus expressly admitted. But this 
 is unnecessary and improper, for, as has been seen, the pleajper se 
 admits the traversable matter to which it assumes to be an answer. 
 If the pleading to be answered contains two distinct matters, one of 
 which is untrue, and the other true, but susceptible of an answer of 
 confession and avoidance, the pleader should separate them, and in 
 the same plea, to so much as he claims to be untrue, he should traverse 
 it, and to the residue plead the matter in avoidance. But the matter 
 so pleaded in avoidance must not within itself contain a traverse, but 
 be a full implied admission of the existence of the fact to which it is an 
 answer. This admission or confession is what in pleading is called 
 "giving color." In all such pleas in avoidance it must be of such 
 matter as is consistent with, and admit, the matter to which it is an 
 answer, and thereby give color to it ; for if it be a matter which will not 
 admit of such admission and giving color, it should be a traverse, and 
 not a plea of avoidance. 
 
 § 43. The rule that pleadings in confession and avoidance should give 
 color, means that it must be so far consistent with the allegation it 
 assumes to answer as to be an implied admission of an apparent right 
 in the opposite party in the manner alleged. This is denominated an 
 implied color, to distinguish it from what in some pleading is called 
 express color. The latter is never required in practice, and only 
 adopted to enable the party, unnecessarily, to adopt a special plea in 
 avoidance instead of a traverse.^ 
 
 § 44. To the rule that every pleading is taken to confess such travers- 
 able matter alleged on the other side as it does not traverse, as in a 
 suit upon a contract to keep up certain repairs ; if the defendant should 
 plead traversing the want of repairs, he thereby admits the contract 
 and its obligations. There are some exceptions, founded on well-estab- 
 lished principles. First. It does not apply to pleas in abatement or 
 dilatory pleas, for such pleas do not go in bar of the action, but merely 
 
 1 As to express color, see Stephens's PI. 206. 
 
OHAP. v.] PLEADING. 447 
 
 oppose a matter of form to the declaration, and do not tend either to 
 deny or confess its allegations. Second. Pleas in estoppel are pleaded 
 without confessing or denying the matter of fact adversely alleged, re- 
 lying merely on some matter of estoppel, arising either from matter of 
 record, or from the deed of the partj^ or from matter in pais {i.e. a 
 matter of fact), as a bar to the claim set up by the opposite party, 
 without regard to the truth or falsehood of the matters to which it is 
 pleaded. 
 
 § 45. Another matter in relation to pleading should be noticed, — it 
 is that of New Assignments. This occurs in cases where the plaintiff, 
 as he must do, alleges in very general terms in his declaration a descrip- 
 tion of the property or breach of a contract, and the defendant should 
 plead that the property was his own, or to the breach of the contract, 
 that he had performed it; now, if the plaintiff should traverse these 
 pleas, the defendant on the trial might, in the general terms of the 
 declaration, prove the truth of his plea, without reaching the case in- 
 tended by the plaintiff; the plaintiff, therefore, in fear of such result, 
 should in his replication, instead of the traverse, new assign in more 
 specific terms the precise property he intend, or the breach of which he 
 intended to complain. In such replication he would say, that he 
 brought his action not for the matters set up in the plea, but for that, 
 etc., stating the matter more specifically and precisely. This new assign- 
 ment is considered as a new declaration, to which the defendant must 
 again plead ; and if he can again evade the case in his new plea, the 
 plaintiff may again be compelled to new assign. 
 
 § 46. Upon these principles must the parties continue their pleadings 
 and their alternate altercation until they come to aii issue, and joinder 
 in issue, when the pleadings are brought to a close, and the case is ready 
 for a trial before court and jury. 
 
 § 47. But it is now proper, for a better understanding of the subject, 
 that some of the more usual special pleas in bar should be noticed, with 
 their several peculiar relations to the rights of the parties. Only those 
 will be noticed which are of the most frequent occurrence, and will most 
 readily aid in understanding the general principles and theory of pleading. 
 
 § 48. One of the most common pleas in bar by confession and avoid- 
 ance, is that of the statutes of limitation. This plea has been received 
 with more or less favor by different courts and judges ; by some with much 
 favor, by others with much prejudice against them. Blackstone says: 
 " The use of these statutes is to preserve the peace of the kingdom, and 
 to prevent those innumerable perjuries which might ensue if a man 
 were allowed to bring an action for an injury committed at any distance 
 of time." If a person were permitted to institute a suit at any time 
 after the matter had transpired without a limitation, there would be 
 danger of its being purposely delayed until the defendant, by some 
 
448 CIVIL LA W. [book hi. 
 
 casualty, be deprived of documentary or some other evidence by which 
 the action might have been successfully defended.' But however they 
 may or may not deserve these encomiums, these statutes are positive 
 law, to which every one has a right to appeal. Our statute of limita- 
 tion is generally contained in the code, and it regulates the length of 
 time of the limitation to different periods, dependent upon the impor- 
 tance of the different causes of action.'' 
 
 § 49. As to the general doctrine and law of the statutes of limitation, 
 reference is had to a former chapter. What is here intended is to illus- 
 trate the doctrine of pleading upon that subject. The principles of the 
 law of limitation, as to the subject of pleading, are these : the statutes 
 do not extinguish the debt or claim, but on the account of the lapse of 
 time bar the action. These statutes are the law of the court where the 
 action is pending, lex fori, and not the law of the contract, lex loci 
 contractus. Therefore, where a note is executed between parties in 
 New York, the action there would be barred in six years, but in Ohio 
 in fifteen years. A suit upon it in Ohio would be barred only by that 
 lapse of time, were it not that the statute of Ohio expressly provides 
 that the statute of the State where the contract was made might be set 
 up and made a defense here. It is, also, a well-established principle, 
 that this law of limitation is an advantage or privilege granted to the 
 defendant, which he may insist upon by a plea or waive ; and, if he 
 does not set it up as a plea, it is a waiver. This may be answered by 
 a replication that the plaintiff was still within some one of the excep- 
 tions or waivings of the statute ; that there was some subsequent 
 acknowledgment or promise to pay. This replication was not based 
 upon the hypothesis that a new promise or contract was made, but that 
 the operation of the statute was taken off of the old contract, or cause 
 of action. 
 
 § 50. The usual replication to a plea of the statute of limitation was 
 formerly that of a "new promise." The issue thus raised was sus- 
 tained, by the plaintiff proving the defendant's admission or acknowl- 
 edgment of the debt within the limited time. Such acknowledgment 
 was considered not only to take the original indebtedness from under 
 the operation of the statute, but as evidence of a new promise to prove 
 the issue, upon the principle that the acknowledgment of the debt 
 would in law raise an implied promise to pay it. The pleadings under 
 the statute of limitation are often more complicated, — thus, in an action 
 of ejectment, to a plea of the limitation on the part of the defendant, 
 
 1 3 Blaokst. Com. 307; 3 Steph. Com. 544. See contra, Newman vs. Eau, 18 
 0. E. 240; Sheets vs. Baldwin, 12 0. S. 120, where the court say they do not 
 favor a plea of the statute of limitations. 
 
 » As to the statute of limitations, see ante, B. iii. oh. iii. J 29-36; 2 Parsons'* 
 Cont. 341, etc. 
 
CHAP, v.] PLEADING. 449 
 
 the plaintiff might reply that at the time when the cause of action 
 
 accrued he was an infant of the age of , and that the action was 
 
 brought within years after he arrived of age. This reply may be 
 
 all true, — therefore the defendant could not, with safety, traverse it ; 
 but, if such be the fact, he might rejoin that the cause of action accrued 
 in the lifetime of A B, in whom the fee of the land then was, who has 
 since died, and from whom the plaintiff now claims as his heir. So in 
 an action to recover a debt, the claim may be apparently within the 
 statute of limitation, but when the defendant pleads the limitation, the 
 plaintiff may reply his own infancy, or the absence of the defendant 
 from the State ; or the acknowledgment of the existence of the debt in 
 writing ; or by the payment of interest.^ 
 
 § 51. Another matter, very frequently the subject of a pleading, is 
 that of fraud ; that is, in alleging that the right or advantage claimed 
 by the opposite party was procured by fraud. In doing this, the party 
 who alleges it must state facts and circumstances attending it, and means 
 by which it was procured, so that the court can, in case it is true, see 
 judicially that it was a fraud. The same must be done in case a duress 
 is pleaded as an avoidance to the allegations of the opposite party. 
 
 § 52. A release, or an accord and satisfaction, is also frequently the 
 subject of a special plea in bar, in confession and avoidance of the 
 plaintiff's claim. Asa mere release, the instrument should be under 
 seal ; but, if not under seal, it may be an instrument in writing suffi- 
 cient to support the allegation of accord and satisfaction, if founded 
 upon a sufficient consideration. Whenever either party alleges a deed 
 as either the foundation of the action, or by way of a defense to the 
 allegation of the opposite party, anywhere in the course of the plead- 
 ing, as a release or otherwise, he should offer to produce and show it in 
 court, with these words, "And now here shown to the court." This is 
 what is called in pleading making profert, or profert in curia. This is 
 not only done in cases where a deed is alleged, but also where letters of 
 administration or letters testamentary or a will, or an award when under 
 seal. Whenever a profert is made, the opposite party is entitled to oyer, 
 i.e. to hear it read, and if it contains any matter of defense, to set it 
 
 > See 8 O. S. R. 215, Van Sant. PI. (2a ed.), 688. In New York and Ohio, 
 under the code, they have sustained demurrer to the action where the petition 
 shows a longer time since the debt became due than the time fixed by the 
 statute of limitation. This, it seems, would be in violation of all just principles 
 of pleading, and either cut oif all legal reply to the plea, or compel an anticipa- 
 tion of it in the declaration or petition, before it is known that the defendant 
 will avail himself of the benefit of the limitation. A good pleader would say it 
 was jumping before one came to the stile. It is no answer that chancery pre- 
 viously admitted that course, for then the practice of raising the objection of 
 limitation, or that of a stale claim, was upon an entirely diflferent principle. 
 
 29 
 
450 CIVIL LA W. [book in. 
 
 forth as a part of his pleading. This demand is made by what is called 
 craving oyer, which cannot be refused. But in modern times this is 
 better accomplished by a demand of a copy, and which will be enforced 
 by the court, if necessary; and this, too, as to papers not under seal, in 
 which case he would have no right to demand oyer. Such papers may 
 now be made part of the pleadings, as formerly sealed instruments 
 were upon profert and oyer. 
 
 § 53. Whenever, after any of these pleadings have been filed, and 
 before trial, any new fact has transpired that will afford the party a 
 subject of defense to a position taken by the adverse party, — as the 
 death of an essential party to the suit, or a release, or an accord or 
 satisfaction, he has a right to plead such fact, by what is called a plea 
 puis darrein continuance, i.e. a plea since the last continuance. But 
 frequently the same matter and object may be accomplished by a motion 
 to the court. Such plea, according to its subject-matter, may be, like 
 others pleas, either a plea in abatement or in bar of the action. 
 
 § 54. When the parties have thus arrived, in their alternate plead- 
 ings, at an affirmative on one side and negative on the other, the trav- 
 erser must tender issue, and the other party must join in issue or be in 
 default. The parties are then said to be at issue, and the case is ready 
 for trial and judgment (subjects which will be considered in a subse- 
 quent chapter), unless the court, upon examination of the record, dis- 
 cover that the issue is an immaterial issue, or one that does not decide 
 the merits of the case, so as to enable the court to pronounce the proper 
 judgment, the court, by an interlocutory judgment, will order a re- 
 pleader, when the parties are bound to plead de novo, or commence 
 back at the first vicious pleading. The same thing is accomplished by 
 leave granted by the court to the parties to amend pleadings. 
 
 § 55. Pleadings under the code. The material provisions of the code 
 upon the subject of pleadings are these : 
 
 1. It declares that " the rules of pleading heretofore existing in civil 
 actions are abolished ; and hereafter the forms of pleading in civil ac- 
 tions in courts of record, and the rules by which their sufficiency may 
 be determined, are those prescribed by this code."^ 
 
 2. " The only pleadings allowed are — 
 " 1st. The petition by the plaintiff. 
 
 " 2d. The answer or demurrer by the defendant. 
 
 "3d. The demurrer to the reply by the plaintiff. 
 
 " 4th. The demurrer or the reply by the defendant. 
 
 " And any defendant, in his answer, may claim relief touching the 
 matters in question in the petition against the plaintiff, or against other 
 defendants in the same action.'" 
 
 > Code, i 83. 2 Code, ? 84. 
 
CHAP, v.] PLEADING. 451 
 
 3. " Tbe defendant may set forth in his answer as many grounds of 
 defense, counter-claim, and set-off as he may have, whether they be 
 such as have been heretofore denominated legal or equitable, or both. 
 Each must be separately stated and numbered, as they must refer in an 
 intelligible manner to the causes of action which they are intended to 
 answer.'" " The plaintiff in his reply may allege any new matter, not 
 inconsistent with the petition, constituting an answer in law."" "But 
 the allegation of new matter in the reply shall be deemed controverted 
 by the adverse party, as upon a direct denial or avoidance."^ 
 
 4. The code requires all the allegations made in the pleadings to be 
 "in ordinary and concise language, and without repetition,"' and with- 
 out fiction,^ and that such allegations should be only of such facts as 
 may be necessary to support the action, or to be an answer to it in law. 
 It establishes as a rule, in determining the validity of a pleading, as to 
 its being essential, that a material allegation is one essential to the 
 claim or defense, which could not be striclien from the pleading without 
 leaving it insufficient f and such " allegations shall be literally construed , 
 with a view to substantial justice between the parties."' 
 
 § 56. The code has, in some measure, altered the mode of taking ob- 
 jection to the insufficiency and imperfection of the pleadings. At com- 
 mon law, as has been seen, objections to a pleading were taken both to 
 the sufficiency of the subject-matter and the form, by demurrer ; still, 
 but little regard was paid to the demurrer unless the court regarded the 
 objection to be a substantial defect in the administration of justice, either 
 as a matter of form or in substance. Mere surplusage was not subject 
 of demurrer, but was subject to be expunged upon motion. But under 
 the code, matter of form is not regarded upon demurrer ; and it pro- 
 vides that "the defendant may demur to the petition only where it 
 appears on its face, either — 
 
 " 1. That the court has no jurisdiction of the person of the defendant 
 or the subject of the action. 
 
 " 2. That the plaintiff has no legal capacity to sue. 
 
 " 3. That there is another action pending between the same parties for 
 the same cause. 
 
 " 4. That there is a defect of parties, plaintiff or defendant. 
 
 " 5. That the several causes of action are improperly joined. 
 
 " 6. That the petition does not state facts sufficient to constitute a 
 cause of action."' " The demurrer shall specify distinctly the grounds 
 of objection to the petition. Unless it does so, it shall be regarded as 
 objecting only that the petition does not state facts sufficient to consti- 
 
 > Code, § 93. = Code, ? 101. > Code, ? 127. 
 
 « Code, \ 85, 92, 101. » Code, \ 115. « Code, \ 128. 
 
 ' Code, I 114. » Code, I 87. 
 
452 CIVIL LA W. [book hi. 
 
 tute a cause of action.'" "When any of the defects which maybe 
 taken by demurrer do not appear on the face of the petition, the objec- 
 tion may be taken by answer; and if not taken either by demurrer or 
 answer, the defendant shall be deemed to have waived the same, except 
 only the objection to the jurisdiction of the court, and that the petition 
 does not state facts sufficient to constitute a cause of action.'"' " If re- 
 dundant or irrelevant matter be inserted- in any pleading, it may be 
 stricken out on motion of the party prejudiced thereby. And when the 
 allegations of a pleading are so indefinite and uncertain that the precise 
 nature of the charge or defense is ijot apparent, the court may require 
 the pleading to be made definite and certain by amendment."' 
 
 § 5T. Besides these general provisions and special alterations in 
 pleadings, the code contains furtfiefi^ovisions as to particular items of 
 pleading, as, — petition must contain — 1. " The name of the court and 
 county in which the action is brought, and the name of the parties, 
 plaintiff atid defendant, followed by the word 'petition.' 2. A state- 
 ment of the facts constituting the cause of action, in ordinary and con- 
 cise language. 3. A demand of the relief to which the party supposes 
 himself entitled. If the recovery of money be demanded, the amount 
 thereof shall be stated ; and if interest thereon be claimed, the time from 
 which interest is to be computed shall be also stated. Each cause of 
 action must be stated separately and numbered."* 
 
 § 58. " The answer shall contain — 1. A general or special denial of 
 each material allegation of the petition controverted by the defendant. 
 2. A statement of any new matter containing a defense, counter-claim, 
 or set-off." 
 
 § 59. " A counter-claim must be one existing in favor of a defendant 
 and against a plaintiff, between whom a several judgment might be had 
 in the action, and arising out of the contract or transaction set forth 
 in the petition as the foundation of the plaintiff's claim, or connected 
 with the subject of the action. And 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." 
 
 § 60. There are a few more provisions of the code that in some 
 measure operate upon and govern the principles of pleading. As that, 
 " every pleading must be subscribed by the partj^ or bis attorney, and 
 be verified." Any party may, in all cases in which he would have the 
 right to use the deposition of the adverse party, whether plaintiff or 
 defendant, also annex to his pleading (other than a demurrer) interroga- 
 tories pertinent to the case, which interrogatories, if not demurred to, 
 
 shall be plainly and fully answered under oath Which may 
 
 be enforced by the court, and on the trial such answer may be used as 
 
 1 Code, ? 88. ''Code, ? 89. soode, J118. •• Code, ? 85, 86. 
 
CHAP, v.] PLEADING. 453 
 
 evidence by either party.' If the action, counter-claim, or set-olf be 
 founded on account, or on a note, bill, or other written instrument, as 
 evidence of indebtedness, a copy thereof must be attached to and filed 
 with the pleading; and if not so attached and filed, the reason thereof 
 must be shown in the pleading.^ 
 
 § 61. The code also contains some provisions dispensing with some 
 allegations, and requiring others less explicit in relation to pleading and 
 setting forth a judgment or other determination of a court, — qr a per- 
 formance of a condition precedent in a contract, — or any amount, 
 promissory note, bill of exchange, or other instrument for the uncon- 
 ditional payment of money only; or in pleading a private statute, or a 
 right derived therefrom ; or in actions for libel or slander. But in all 
 such cases it will be far more reliable to depend upon a full statement 
 and allegation of the legal facts, according to the common law prac- 
 tice. 
 
 § 62. The great changes produced by the code in pleading are 
 these : — 1. It abolishes all differences of action as known at common law 
 and in equity, and all words and forms of expression dependent merely 
 upon them, and in their stead adopts seven classes of action, with names 
 and forms peculiarly its own. 2. The pleadings must be confined to 
 the mere allegations of the necessary facts ; but in determining what 
 are necessary facts in the prosecution or defense of an action, all the 
 rules that determined what constituted the right of action either at law 
 or in equity remain the same. 3. Demurrers are confined to the six 
 enumerated particulars ; and require that objections on the score of 
 necessary form and the want of certainty in pleadings, should be taken, 
 by a motion, to the court instead of demurrer. Where, at common law, 
 a motion might be made to strike out of the pleading a matter of 
 surplusage, the same thing is now to be done by calling it redandanl 
 matter. 4. Both systems assume the object of pleading to be, to ascer- 
 tain the precise matter in dispute, by permitting each party to state 
 his cause of action, or grounds of defense, alternately, until the parties 
 were at an issue by an affirmative on one side and a negative on the other. 
 This the common law pleading accomplished, but the code stops at the 
 replication, and leaves all beyond that in uncertainty and doubt. As 
 where an action is brought to recover a debt, the defendant pleads the 
 statute of limitation, the plaintiff replies that the defendant at a cer- 
 tain time, by his certain instrument in writing acknowledged the exist- 
 ence of the debt, and agreed to waive the limitation ; at common law 
 the answer of the defendant to this would be by a rejoinder which would 
 admit of a traverse, or a confession and avoidance, as, that the writing 
 
 1 Code, 1 105. 
 
 ^ Code, 1 117. This provision is equivalent to and supersedes profert and oyer. 
 
454 CIVIL LAW. [book m. 
 
 was procured by fraud or duress. But under the code there can be no. 
 pleading in such case after the reply. For the code provides that "the 
 allegation of new matter in the reply shall be deemed controverted by 
 the adverse party, as upon a direct denial or avoidance.'" By this 
 arrangement the plaintiff, when he expects a direct denial, is met at the 
 trial with an unexpected defense of confession and avoidance by proof 
 of fraud or duress, which is not in the pleadings, and takes him by 
 surprise. And this may happen in many cases. 
 
 § 6.3. Another change produced by the code in pleading is — 5. There 
 is no formal joinder in issue on either a demurrer or a traverse, as there 
 is at common law. The code assumes, when a party demurs, or the 
 defendant answers traversing the petition, or the plaintiff in his reply 
 either traverses, or confesses, and avoids, that the opposite party joins in 
 the demurrer, or joins issue on the traverse in the answer, or traverses 
 or avoids the reply. When the party intends to do no su;;h thing, but 
 may move the court to treat the demurrer as frivolous, or move that 
 some redundant matter be stricken out of the pleading of the opposite 
 party, or that it may be made more certain. The party therefore does 
 not know whether he is to meet a joinder in issue or a motion until it 
 is developed at the trial ; but this doubt and uncertainty in practice 
 may be tolerable, except as to the manner the pleading is left upon the 
 reply (replication), which may develop an issue which is not at all dis- 
 closed in the pleadings. 
 
 § 64. 6. The code has unnecessarily adopted a new nomenclature to 
 the science of pleading — as the declaration has become a petition; the 
 plea, the answer; the replication, the reply; the surplusage has become 
 the redundancy; besides a number of new terms before unknown to 
 the law, and changes which have caused what were formerly questions 
 as to the form of action, to become questions as to the class of actions ; 
 which are all unnecessary changes, and without any improvement. 
 
 § 65. Except in a few instances specially stated in the code, as in the 
 cases of action, counter-claim, or set-off, founded upon an account, 
 promissory note, bill of exchange, or other instrument, for the uncondi- 
 tional payment of money only,^ — in which cases the code points out 
 what may be done, — the pleader is left to draw his own conclusion as 
 to the necessary and essential facts to be alleged, or stated in his plead- 
 ing, as constituting his cause of action or grounds of defense, as those 
 essential facts were established and known before the code ; and it 
 would be safe, in these special cases, thus to state the essential facts of 
 his case, according to the substantial facts required at common law. 
 This has been frequently declared by the courts in language like this: — 
 
 1 Code, 2 127. ' Code, ?. 122. 
 
CHAP, v.] PLEADING. 455 
 
 "Former precedents, rules, and adjudications may be resorted to as 
 authoritative, except so far as they relate to the different form of action, 
 or the formal and merely technical allegation.'" "Whatever rules of 
 common law pleadings are in accordance with the rules of the code are 
 still applicable to pleadings under the code.'" " The principles of plead- 
 ing, whatever the system, are always the same, — its of&ce is to present 
 the cause of action on one side, and a defense on the other. This is not 
 less true under the code than it was under the former system."" 
 " There is nothing in the code that compels us to invent new modes of 
 expressing the same legal proposition."* 
 
 § 66. The essential rules of the code as to pleading, as deduced from 
 the code itself, are these : — 1. That each cause of action, or ground of 
 defense, should be separately stated.* What constitutes a cause of 
 action, or ground of defense, is left to be deduced from what consti- 
 tuted a cause of action, or the ground of defense, either in law or 
 equity, or both, as the law stood before the adoption of the code. 
 
 § 67. 2. That the statement of such cause of action, or defense, must 
 consist of the allegation of such material and essential facts as in law 
 constituted such cause of action* or defense. Such allegations must be 
 the material facts, not the evidence of the facts. The legal facts of the 
 ease in the pleading should be abstracted from the evidence which sup- 
 ported them, or upon which they depended. This is equally true in 
 cases in equity as those at law. What might have been tolerated in a 
 petition in equity under the former chancery practice, as statement of cir- 
 cumstances which went to support the essential facts, will not be tol- 
 erated under the code. When a petition, or answer, does not contain 
 such essential facts, it is subject either to a demurrer, because it does 
 not contain a cause of action, or to a motion, to cause the pleading to be 
 made more certain. When it contains more than such substantial facts, 
 as the recital of the evidence or other unessential matters, it is subject 
 to a motion to have it stricken out, as a redundant or irrelevant matter. 
 
 § 68. 3. Such statement should be made in ordinary and concise 
 language, and without repetition ;' it should also be without fiction,* 
 and no technicality is required. It should be made as a narrative of 
 the facts as they occurred or transpired in the ordinary course of 
 events. If an essential fact is not stated, it is subject to a demurrer, as 
 not stating sufficient facts to constitute a cause of action or ground of 
 defense.' But there is a great difference between the want or absence 
 
 ' Wintersmith vs. Barrett, 14 B. Monroe, 84. 
 
 2 Trustees vs. Odlin, 8 0. S. K. 293. 
 
 3 Beddington vs. Davis, 6 Howard, N. Y. K. 402. 
 * Stewart vs. Travis, 10 Howard, N. Y. B. 148. 
 
 5 Code, ? 86 and 93. « Code, § 85, subdivision 2. 
 
 ' Code, g 8-5, 92, and 101. « Code, § 115. « Code, g 87 and 101. 
 
456 CIVIL LAW. [book III. 
 
 of the statement of a necessary fact or title and an imperfect statement 
 of it. The former will sustain a demurrer as just stated ; but an imper- 
 fect fact or title is only subject to a motion to make it more certain,^ 
 and it is waived by pleading over, or by trial and verdict. 
 
 § 69. After all the changes wrought by the code, the fundamental 
 principles of pleading must remain the same, — to inform the parties and 
 the court of the facts of their controversy, and draw out the issue or the 
 matter in controversy between them, preparatory to the judgment of 
 the court thereon. What these facts are, that are essential in pleading, 
 can only be learned by a thorough study of the law of actions and de- 
 fenses as they existed at law and in equity before the code existed. 
 And the great rule of both systems is, to require the substantial facts 
 of the case only to be stated iu the pleadings. In doing this, the former 
 rules of pleading, as to the statement of the substantial facts, are excel- 
 lent guides, and the pervading principles of both are the same, — the 
 code: "the allegations shall be liberally construed, with a view to sub- 
 stantial justice between the parties.'" And that of the common law: 
 "that sufficient matter appear in the pleading, upon which the court 
 would give judgment according to the very right of the case.'" 
 
 CHAPTER VI. 
 
 EVIDENCE. 
 
 § 1. Evidence is that which may be legally introduced to demonstrate 
 and make evident the point in issue. The subject may be considered 
 in relation to — I. The elementary principles upon which the doctrine of 
 evidence rests ; II. The instruments of evidence by which it is introduced 
 to the judicial tribunal ; and III. Their application to proving the issue.* 
 
 1 Code, 1 118. 2 Code, § 114. 
 
 » Ante, § 23, and Stephens's PI. 140. On the code, Judge Swan's Treatise on 
 Pleading is reoommended as highly deserving the student's diligent attention. 
 The ohjection to it is, that it commends the code beyond its merits, and censures 
 the common law pleading below its deserts. 
 
 * 1 Stark. Ev. 13. In legal phraseology, evidence is that which may be admitted 
 to prove and demonstrate the truth of the issue. Testimony is the declaration of 
 witnesses for the purpose of evidence. Proof is that which demonstrates the 
 truth. The testimony may not amount to evidence, and the evidence may not 
 amount to proof. 
 
CHAP. Ti.] EVIDENCE. 457 
 
 I. THE BLEMENTAEY PKINCIPLES ON WHICH THE DOCTRINE 
 OP EVIDENCE BESTS. 
 
 § 2. The means which the law employs for ascertaining the truth of 
 any fact, brought in issue in the course of a judicial investigation, are 
 the same to which mankind resort for ordinary but extra-judicial pur- 
 poses. All the rules adopted by law as rules of evidence are for the 
 purpose of ascertaining and admitting such evidence as has a proper 
 tendency to establish the truth of any fact in question, and to exclude 
 that which, for judicial purposes, is unworthy of credence, or too remote 
 for the object intended ; and for this purpose the law has established 
 several tests of truth, by which the admission or exclusion of the evi- 
 dence is to be tried. These tests are — (1) that the evidence shall be 
 given under oath ; (2) that it should be from a disinterested source ; (3) 
 that it should be the best evidence ; and (4) that it should have afforded 
 an opportunity for cross-examination. 
 
 §3. (1) The first great safeguard which the law provides for the 
 ascertainment of truth in ordinary cases consists in requiring all evi- 
 dence to be given under the sanction of a judicial oath, which may be 
 defined to be a solemn invocation of the vengeance of the Deity upon the 
 witness if he do not declare the whole truth, as far as he knows it. This 
 imposes as strong obligations as human wisdom can devise upon the con- 
 science of the witness to declare the whole truth ; and a willful violation 
 of it exposes him to a criminal prosecution and the wrath of Heaven. 
 
 § 4. This implies that the witness should be of a sufficient age and 
 understanding to comprehend the moral obligation of an oath, and also 
 be of that moral character which would be affected by it. For this 
 reason persons who want understanding, as idiots, insane persons, and 
 children, are not competent witnesses ; but children of any age may be 
 examined under oath who are capable of understanding its obligations, 
 and of distinguishing between good and evil. So persons who do not 
 believe in the solemn obligation of an oath, in the existence of God, and 
 in a future state of reward and punishment, are incompetent as wit- 
 nesses ; for these objections are at the foundations of the principle upon 
 which an oath is administered. But if the witness entertains these 
 essential beliefs, mere difference of religious opinion will form no objec- 
 tion to his competency ; therefore, Jews, Mohammedans, Gentoos, or, in 
 short, persons of any sect possessed of such beliefs, are so far competent 
 witnesses ; but they are to be sworn according to that form which they 
 hold to be the most solemn.^ It follows also, that the testimony of a 
 
 ' Eos. C. Ev. 79. 1 Stark. Ev. 82. Wright's R. 345. 
 
 2 One who believes in the existence of God, and that the oath is binding on his 
 conscience, is a competent witness, though he does not believe in a future state 
 of reward and punishment. Brock vs. Milligan, 10 0. K. 121. 
 
458 CIVIL LA W. [book hi. 
 
 person who, by his conduct, has shown that he is regardless of law and 
 moral obligation, ought not to be received ; and therefore it may be 
 taken as a general rule that no witness is competent to give evidence 
 in a court of justice who has been convicted of an infamous crime. 
 
 § 5. (2) The law will not receive the evidence of a person, even under 
 the sanction of an oath, who has an interest in giving the proposed evi- 
 dence, and consequently whose interest conflicts with his duty.' That 
 intere.st which will exclude a witness must be a direct and certain 
 interest in the event of the cause, or an interest in the record for the 
 purpose of evidence. A bias, or a remote and uncertain interest, will not 
 exclude ; and therefore a father or son, principal or agent, guardian or 
 ward, or any other person connected with each other in any civil or 
 domestic relation (except husband and wife), may mutually give evidence 
 for each other. Thus, a son is competent evidence for his father, for any 
 interest he may have in his father's estate is remote and uncertain ; but 
 he cannot be a witness upon the same cause of action at the suit of the 
 administrators of his father's estate without relinquishing his interest 
 in the estate, for a recovery in the cause will increase the estate in 
 which he has a direct and certain interest. When the interest is estab- 
 lished, it will render the witness incompetent, however small that 
 interest may be ; but the objection maybe removed by a release of that 
 interest. 
 
 § 6. When a verdict in the cause would be evidence for or against 
 the witness in a subsequent action, he is incompetent in favor of that 
 party in whose favor his interest inclines. As where a witness was to 
 have a lease in case the plaintiflf recovered the land, the witness is incom- 
 petent for the plaintiff; for in case the witness sued for the lease, the 
 verdict obtained on his own evidence would form part of his proof. 
 So in an action against the master for the negligence of the servant, the 
 servant is not a competent witness for the defendant to disprove the 
 negligence, for the servant would be interested to defeat the recovery, 
 as he is answerable over to the master, and the verdict in the case would 
 be evidence of the amount of damages in an action by the master against 
 the servant. But it is not objectionable to a witness that he is equally 
 interested on both sides of the question; ,as in an action for money had 
 and received, a witness may prove the payment to him by the defend- 
 ant as the plaintiff's agent, since he is liable to one or the other of the 
 parties. Nor is it objectionable that the witness is interested against 
 the party who calls him ; for if the party who calls him waives the ob- 
 jection, the other ought not to be permitted to object that he was inter- 
 ested in his favor. 
 
 1 This was the rule at common law ; under the code the objection only goes to 
 his credibility. 
 
CHAP. VI.] EVIDENCE. 459 
 
 § 7. When a person is a party on the record, though he be merely a 
 trustee, he is incompetent as a witness ; and this rule is principally on 
 the score of interest, for all persons party to the record are at least 
 liable for costs, prochein ami, and the like. So if they are parties to 
 the suit, though their names do not appear upon the record, they are in- 
 competent; as in a suit by a corporation, a corporator is incompetent for 
 a witness, even though it releases its interest in the subject-matter of the 
 suit, since, in the event of a verdict against the corporation, the corpora- 
 tion funds would be decreased by the amount of the costs. But a mere 
 co-trespasser, who is not a party on record, is a competent witness, for 
 he cannot be affected by the record of the suit ; and there are a number 
 of instances where a party is admitted as a witness to prove certain 
 facts, as to prove the service of a notice, the loss of a written instru- 
 ment, and in certain cases the oath of the party is admitted with his 
 book account to prove its amount and validity.^ 
 
 § 8. There are some instances where persons are excluded as witnesses 
 on account of a near connection between them and the party to the 
 suit ; partly on account of interest and partly on account of public 
 policy — as neither the husband nor wife of a party to the suit is 
 competent to give evidence for or against such party ; and whenever 
 the husband is incompetent on account of interest in the event of the 
 suit, the wife must be also. Though the- husband consents to the ex- 
 amination of his wife against him, in criminal cases at least the court 
 have refused to permit it, on the ground of public policy, to prevent any 
 opportunity by such means of marring the peace of families. So at- 
 torneys and counselors are excused* from disclosing anything, as wit- 
 nesses, confided to them by their clients, in the course of their pro- 
 fessional duty ; and this also as a principle of public policy, for the pur- 
 pose of protecting the rights and interests of suitors. This privilege is 
 that of the client and not of the attorney, and the court will not permit 
 him to make a disclosure without the consent of his client.' 
 
 § 9. (3) Another principle which the law has adopted as a test is, 
 that the best evidence of which the case admits must be adduced ■* and 
 therefore it excludes secondary and inferior evidence when it is at- 
 tempted to be substituted for evidence of a higher and superior nature. 
 Thus, where a contract has been reduced to writing, and signed by 
 the parties, no copy or parol evidence can be given of its contents until 
 its loss or destruction is established, for the writing itself is the best 
 evidence of the contract, and no resort to secondary evidence is per- 
 
 1 Eos. C. Ev. 87. 2 See post, g 15 and statute. 
 
 3 Eos. C. Ev. 90. These rules of the common law should be understood, 
 although the objection on the score of interest under the code now goes only to 
 the credibility of the witness, and not to his competency. 
 
 <1 Stark. Ev. 102; Eos. E. 1 ; see post, J 58. 
 
460 CIVIL LA W. [book hi. 
 
 mitted while such primary evidence is in the power of the party. 
 Where the writing is a mere narrative of a fact, and not constituting 
 the fact itself, it may be proved by parol evidence. Upon this principle 
 a receipt for money will not exclude parol evidence of the payment. 
 
 § 10. But where it is shown to the court that the best or primary 
 evidence is out of the power of the party, as lost, destroyed, or in the 
 possession of the opposite party, secondary evidence will be admitted. 
 If the primary evidence is in the possession of the opposite party, 
 notice should be served in due time to produce it; unless, from the 
 nature of the proceedings, he has notice, he is to be charged with the 
 possession of it, as in cases of trover, forgery, etc. 
 
 § 11. (4) The last test of truth in the admission of evidence which we 
 shall notice is that of an opportunity for cross-exaviination, by means 
 of which the credit due to the witness, his means of knowledge, and 
 motives, may be scrutinized and ascertained. 
 
 Thus, depositions taken in the absence of one party to a suit, and 
 without notice, are not evidence ; so an answer in chancery is not evi- 
 dence against one who neither was a party to the suit, nor claims in 
 privity with a party, and had not the same opportunity for a cross-ex- 
 amination. This rule operates to the exclusion of all that is usually 
 described under res inter alios acta, that is, to all declarations or acts 
 of others, or transactions in relation to other cause of action, which 
 tend to conclude or affect the rights of any one without his privity. 
 
 § 12. It is by this rule, as well as that which requires evidence to be 
 under the sanction of an oath, that hearsay evidence is excluded from 
 courts of justice ; for it is evident that no one ought to be bound by 
 what another has said or written as a fact, not under oath, and not 
 under circumstances affording an opportunity for cross-examination, as 
 it would afford too vague and uncertain a source of evidence to be re- 
 lied on. But to this rule excluding hearsay evidence there are some 
 exceptions, in cases where the reason of the rule does not apply in its 
 full force, or from the necessity of the case. 
 
 § 13. In the first place, the rule does not apply to any public docu- 
 vient^ made under lawful authority, such as gazettes, proclamations, 
 public surveys, records, and other memorials of a similar description; 
 these often constitute the facts themselves, and, so far from being the 
 vague declaration of a stranger as to any fact, are made and constituted, 
 by proper authority, as the means and vehicles of consummating and 
 perpetuating the knowledge of the facts which they contain. 
 
 § 14. In the next place, the general rule excluding hearsay evidence 
 does not apply to admissions which the party himself has made, or to 
 those declarations to which he is privy.'' Such evidence Is admissible 
 
 ' 1 Stark. Ev. 46, « 1 Stark. Ev. 50: Bos. Ev. 25-33. 
 
CHAP. Ti.] EVIDENCE. 461 
 
 against him on the ground that he would not have admitted a fact 
 against his own interest unless it had been true. The express admis- 
 sions of a party to a suit, or admissions implied from his conduct, are 
 strong evidence against him ; but he is at liberty to prove that such 
 admissions are mistaken or untrue, and is not estopped or concluded by 
 them, unless another person has acted upon them, and been induced by 
 them to alter his coudition ; in such cases the party is estopped from 
 disputing their truth with respect to that person and those claiming 
 under him; but as to third persons he is not bound. Admissions thus 
 made are admissible against the party, as facts admitted before arbi- 
 trators ; an answer to a bill in chancery, filed against the defendant by 
 a stranger, may be read to show the admission of a particular fact, 
 though it is not admissible as evidence of a judicial proceeding, — what- 
 ever is admitted on the record is conclusive between the parties ; but 
 where there are several distinct pleas pleaded, one does not operate as 
 an admission of any other. But whatever is pleaded and not denied 
 shall be taken to be admitted ; thus, in an action of covenant, a plea of 
 an award admits the execution of the deed upon which the covenant is 
 brought. So in an action by a person suing in a particular character, 
 as an administrator, a plea of general issue admits the title of the 
 plaintiff to sue in the character he assumed. 
 
 § 15. In the next place, the objection that the evidence is hearsay, or 
 res inter alios acta, does not apply when the evidence is of facts, which 
 are themselves part of the res gestee, i.e. part of the transaction in ques- 
 tion.' Whether the objection applies or not may be determined by this 
 test: if the evidence has no tendency to illustrate the question, except 
 as a mere fact detached from the transaction in question, and depending 
 entirely for its effect upon the credit of the person who gives it, it is 
 inadmissible in evidence ; but if, on the contrary, any importance can 
 be attached to it as a circumstance which is part of the transaction 
 itself, and deriving a degree of credit from its connection with the cir- 
 .eumstances, independently of any credit to be attached to such person, 
 then it is admissible. As the declarations made by a trader at the time 
 of absenting himself from home are admissible on a question as to his 
 bankruptcy, to show the motive of his absence, so, in an action for 
 assault and battery, evidence of what the plaintiff said immediately 
 upon receiving the hurt, is admissible. And in cases of riot, the cry 
 of the mob may be received as evidence as part of the transaction. It 
 may also be stated that it is partly on this principle, of its being part 
 of the res gesfse, that account books are admitted in evidence, with the 
 supplemental oath of the party. 
 
 § 16. There is another exception to the general rule in the case 
 
 » Kos. Ev. 21 ; 1 Stark. Ev. 47. 
 
462 CIVIL LA W. [book hi. 
 
 where a declaration is made by a person in extremis, and under the 
 apprehension of approaching dissolution, is received in evidence ; for 
 such declarations are admitted to be proved, although the party against 
 whom they were offered was not present, and therefore had not an 
 opportunity to cross-examine and elicit the whole truth, ^ But as this 
 is an exception to the general rule, it is never received but with the 
 greatest caution, and it is never admitted unless the court be first satis- 
 fied that the party who made the declaration was under the impression 
 of approaching death. But this exception has but few applications, 
 except in cases of homicide, and in relation to the cause of death. 
 
 § IT. Another exception is in questions of pedigree, where the oral or 
 written declarations of deceased members of the family are admissible 
 to prove the pedigree. Declarations in a family, descriptions in wills, 
 inscriptions on monuments, in Bibles, and registry books, are all ad- 
 mitted, upon the principle that they are the natural eifusions of a party 
 who must know the truth,'' and who speaks upon an occasion when the 
 mind stands in an even position, without any temptation to exceed or 
 fall short of the truth. So the declaration of a parent, or of a surgeon 
 who attended at the birth, are good evidence to prove the tiifne of the 
 birth of a child. But such hearsay evidence must be from a person 
 having such a connection with the party to whom it relates that it is 
 natural and likely, from their domestic habits and connections, that they 
 are speaking the truth, and that they could not be mistaken. And where 
 the declarations have been made, after a controversy has arisen with re- 
 gard to the point in question {post litem molam), they are inadmissible. 
 
 § 18. Hearsay evidence or common reputation is also admissible to 
 prove public or general rights, or to prove a right affecting a number 
 of persons which is in the nature of a public right; as, the custom of 
 a place, the boundaries between parishes and manors, and the like. 
 Although in such cases general reputation is evidence, yet the tradition 
 of a particular fact is not. Evidence of this description must be confined 
 to what old persons, who were in a situation to know what the rights in 
 question were, have been heard to say concerning them. 
 
 These declarations, as in cases of pedigree, must not have been made 
 post litem motam. And it is to be observed that declarations are not 
 to be received in any case where the person is a competent witness, 
 and can be had as such in court. 
 
 II. INSTRUMENTS OF EVIDENCE. 
 
 § 19. In the next place, the. instruments of evidence are to be con- 
 sidered, — the means by which it is conveyed to the judicial tribunal 
 before which it is required. These are — first, personal witnesses exam- 
 
 > 1 Stark. Ev. 100. ' Eos. Ev. 19. 
 
CHAP. Ti.] EVIDENCE. 468 
 
 ined viva voce in court ; and secondly, written evidence. Oral testimony 
 will naturally precede written evidence, as its natural tendency is to 
 develop the circumstances of the case more fully, and prepare the way 
 for the written evidence. 
 
 § 20. The attendance of witnesses in court is compelled by a writ of 
 subpoena, which summons them, under a penalty, to attend for the pur- 
 pose of testifying in civil bases when in the county, and in criminal 
 cases when in the State. In civil cases, when the witness is out of the 
 county, the testimony is procured by means of depositions. When the 
 witness has been duly subpoenaed and refuses to obey, the court will 
 compel his attendance by means of a writ of attachment, and punish 
 him for a contempt of the court in disobeying the command of its writ.^ 
 For the purpose of rendering the attendance of the witness safe and 
 convenient, fees are allowed for his time and service, and he is protected 
 from arrest during the time consumed (eundo morando et redundo) in 
 going to the place of trial, his attendance there, and in his return, 
 although he is attending on application simply, without subpoena. 
 
 § 21. When the witness attends at the trial his testimony may be ob- 
 jected to for want of competency or for want of credibility. Objections 
 to his competency, when they prevail, exclude his testimony entirely, 
 and should, therefore, regularly be made before he is sworn, or at least 
 upon examination-in-chief ; but if the objection appear at anytime in 
 the course of the examination, if made as soon as known and discovered, 
 the testimony will be excluded. For the purpose of raising this objec- 
 tion the witness may be examined, in the first instance, as to the facts 
 upon which the objection is founded ; but his answers are conclusive 
 upon the subject, and he who relied upon the answers will not be per- 
 mitted to contradict them, or his incompetency may be shown by other 
 evidence. It is not permitted, however, to resort at the same time 
 for this purpose to both measures. 
 
 § 22. The objections on the ground of competency are — first, because 
 he is incapable of the obligation of an oath, from youth, mental infirmity, 
 ignorance, unbelief, or infamy ; or, secondly, because he is interested in 
 the cause, from direct and certain interest in the event of the suit, or 
 from being connected with one of the parties in a relation which the 
 law excludes, as husband or wife, attorney or counselor, or the like ; 
 and of these we have already treated.^ 
 
 § 23. Objections to the credit of a witness are those objections which, 
 though insufiicient upon legal principles to exclude the witness on the 
 account of incompetency, still show him to be affected by some motive, 
 
 1 1 Stark. Ev. 119 ; Eos. Ev. 77. 
 
 2 See ante, § 4. These objections, existing at common law, as to competency, 
 are now, by our code, rendered as objections only to the credibility of the wit- 
 ness, so far as interest and being a party is concerned. 
 
464 CIVIL LAW. [book hi. 
 
 interest, or want of character, which, upon the ordinary principles of 
 human action, would render him less entitled to full credence; such as 
 the inducement he may have to aid and protect a friend or near connec- 
 tion ; an interest in the same question ; or the want of that regard for 
 veracity which usually characterizes persons of probity. These ob- 
 jections do not exclude the witness, but leave his testimony, under the 
 objection, to go to the court or jury for them to consider how much 
 it is entitled to belief. And it is a principle that all objections which 
 militate against the testimony of a witness should go to his credibility 
 rather than to his competency — that the evidence may be received for 
 what it is worth, rather than be entirely excluded. 
 
 § 24. The credit of a witness may be impeached, not only by what 
 may appear against him on his cross-examination, but by contradicting 
 him by other opposite testimony, or by general evidence to affect his 
 credit.' He may be contradicted by witnesses who represent the facts 
 differently, or by proof that he has said or written that which is incon-- 
 sistent with his present testimony. But this must be to some material 
 point, and not to a collateral fact, after the mind of the witness has 
 been called to that point (for an opportunity of explanation) upon cross- 
 examination. 
 
 The witness called upon to impeach the credit of another is not per- 
 mitted to testify of particular instances in the formation of a character, 
 but of the general character of the witness for truth and veracity, for 
 the admission of the evidence of such instances would lead to collateral 
 issues and endless inquiry; and, though every man may be supposed to 
 be prepared to defend his general character, he cannot be supposed to 
 be prepared to defend himself against particular charges, of which he 
 has had no previous notice. 
 
 § 25. But a party is not permitted to discredit the testimony of his 
 own witness, or show his incompetency, for it would be unfair that he 
 should impeach the testimony which he himself has introduced, have 
 the benefit of it if favorable, and be able to reject it if the contrary. In 
 case, however, the party is surprised by unexpected testimony, he will 
 not be precluded from proving the case by other witnesses ; for it would 
 be contrary to justice that, the treachery of a witness whom the party 
 had introduced in good faith should exclude him from establishing the 
 truth by the aid of other testimony. When a witness has been im- 
 peached, his character and credit may be supported by other testimony ; 
 but as that is always presumed to be good until the contrary appears, a 
 party cannot introduce evidence to confirm the character of a witness 
 before the credit of that witness has been impeached, either upon cross- 
 examination or by the testimony of other witnesses. 
 
 1 1 Stark. Ev. 145. 
 
CHAP. VI.] EVIDENCE: 465 
 
 § 26. In the examination of a witness, the court, upon motion, will 
 order the residue of the witnesses for the same party out of court, for the 
 purpose of putting their testimony to the severe scrutiny of a separate 
 examination, and thereby assist in the detection of any fabricated evi- 
 dence and prevent any concert in their testimony. 
 
 § 2T. Upon the examination of a witness-in-chief, the rule to be ob- 
 served is that leading questions are not to be asked, — that is, questions 
 which suggest to the witness the answer he is to make. The rule is 
 intended to prevent improper use being made of a willing witness, by 
 leading him on to giving a fuller color to that which is susceptible of 
 misrepresentation, without being positively and directly false. It is not 
 objectionable, in the first place, to direct the mind of the witness fully 
 to the subject, by putting such leading questions as will call the wit- 
 ness's attention to such parts of his information as will be pertinent to 
 the issue. And it seems such questions are not objectionable when 
 relative to facts which, when answered, must be one way or the other 
 directly and positively true or false, — as in the identity of a person, he 
 may be pointed out and the witness asked whether he be the person. 
 So, where a witness is called to prove the handwriting of another, it is 
 the practice to show him the document, and ask him directly whether 
 that is the handwriting of A B or not. So also in the examination of 
 a witness to impeach another, he is asked if he is acquainted with his 
 general character, and if so, whether he would believe him under oath. 
 Such instances are innumerable. But where a witness is examined as 
 to any conversation, admission, or agreement, where the particular 
 terms of the admission or contract are important, or as to facts depend- 
 ing upon a variety of circumstances capable of coloring and misrepre- 
 sentation, without being directly and positively false, objections to 
 leading questions become important, since there is danger lest the wit- 
 ness should, by design or mistake, be guilty of some variance, and give 
 a false color to the transaction. When the witness is evidently hostile 
 to the party calling him, the court will permit leading questions to be 
 put upon the examination-in-chlef ; and where he is evidently too willing, 
 the court will restrain such questions, even upon cross-examination. 
 
 § 28. Testimony should be founded upon personal knowledge.' The 
 object of it is the <ittainment of facts which will enable the court or jury 
 to decide the point in issue, and not the mere opinion or judgment of 
 the witness. But there are instances where opinions or belief, founded 
 upon suflScient knowledge or experience, may be properly given in evi- 
 dence ; as on questions of identity of persons and of handwriting, it is 
 the every-day practice for witnesses to swear that they believe the per- 
 son to be the same, or the handwriting to be that of a particular indi- 
 
 1 Stark. Ev. 126. 
 30 
 
466 CIVIL LA W. [book hi. 
 
 vidua], although they will not swear positively. So, where professional 
 men and others give evidence on matters of skill and judgment, their 
 evidence frequently does not, and often cannot, from the nature of the 
 case, extend beyond opinion and belief. The means of knowledge upon 
 which such opinions are founded, if not disclosed on the examination- 
 in-chief, may be fully investigated upon cross-examination, and the de- 
 gree of credit to be attached to the evidence is a question for the jury. 
 
 § 29. A witness is not bound to answer any question, if his answer 
 will expose him to any criminal punishment or penal liability, upon the 
 wise and humane principle that no man is bound to criminate himself' 
 Where a question of this nature is put and objected to, it is the province 
 of the court to judge whether any indirect answer to the question will 
 furnish evidence against the witness. If such answer may disclose a 
 fact which forms a necessary and essential link in the chain of testimony 
 sufficient to convict him of a crime, he is not bound to answer it so as to 
 furnish matter for that conviction ; and in that case the witness himself 
 must judge what his answer will be; and if he says on oath he cannot 
 answer without accusing himself, he cannot be compelled to answer ; 
 and it appears to be the prevailing opinion that the rule extends to an- 
 swers of questions which tend to render the witness infamous, or to dis- 
 grace him, or to impeach his conduct as a public officer.^ The refusal 
 of a witness to answer to discredit himself would make an unfavorable 
 impression upon the jury. But should the witness admit that be had 
 been guilty of a crime, the admission would only go to his credit, and 
 would not render him incompetent without due proof of his conviction. 
 It seems to be the prevailing opinion that a witness cannot refuse to 
 answer a question because he may thereby subject himself to a civil 
 liability or a charge, for he would be bound to disclose the same upon 
 a bill in chancery. 
 
 § 30. Written instruments are either of a public or private nature, or 
 partaking partly of the nature of both. Public documents, again, are 
 cxih&e judicial or non-judicial, of record or not of record. It will here 
 be the most convenient to consider — 1, written documents of a public 
 nature, or public documents ; 2, judicial documents ; 3, private docu- 
 ments. 
 
 §31. ]. Public documents are statutes, journals of either house of 
 the legislature, journals or minutes of the proceedings of any meeting 
 or board of public officers, public registers, public surveys, etc. When- 
 ever it is proper to introduce any of these public documents as evidence 
 pertinent to the issue, they are generally proved by duly certified copies, 
 
 ' 1 Stark. Ev. 135 ; 1 Burr's Trial, 245. 
 
 2 1 John. E. 498; 1 Cranch, 144; 13 John. R. 82 ; 1 Stark. Ev. 138, n. (1) 
 and (f ). 8 Sec I 13. 
 
CHAP. VI.] EVIDENCE. 467 
 
 as the originals cannot be had at every place where they might be 
 needed as evidence, but are kept in soiue fixed place, assigned by law. 
 Statutes, journals of the legislature, etc. are proved by the printed 
 copies of them executed by the State printers. Other public documents 
 are generally admitted upon the certificate of the officer whose duty it 
 is to keep or certify to them. When such officer has an official seal, the 
 certificate should be under his seal ; but where he has not, and where 
 he resides out of the county where the court sits, the official character 
 of the officer ought to be certified by either the Secretary of State or 
 the clerk of the court of common pleas of his county, as the case may 
 be, under their official seal. In most of these instances, where copies^ 
 of public documents are admitted, copies proved on oath to have been 
 examined with the originals are admissible ; where such documents 
 are from other States, the statute of the United States,' made in pur- 
 suance of the provisions of the Constitution, authorizing Congress to 
 prescribe the manner in which the public acts, records, judicial pro- 
 ceedings, etc. of other States may be proved, regulates the manner of 
 their admission.' 
 
 § 32. 2. Judicial documents are the records and papers belonging to 
 judgments and proceedings of courts, in the course of disposing of the 
 judicial cases before them. These consist of three classes: 1, judg- 
 ments, decrees, and verdicts ; 2, depositions, examinations, reports, and 
 the like papers, being parts of the proceedings in the case ; and 3, writs, 
 warrants, pleadings, and the like papers, incident to judicial proceedings. 
 Such documents may be offered in evidence in other cases for very dif- 
 ferent purposes ; they may be used to prove the consequence and effect 
 of a judgment and proceedings between the same parties ; or they may be 
 used to prove or maintain a collateral fact in the subsequent proceedings. 
 The first great rule in relation to the admission of such documents is, 
 that they should be between the same parties, and that each should be 
 mutually bound by them ; where this is not the case, the parties are 
 considered as strangers to the record, and it is to be considered as res 
 inter alios. But then all who are privies are equally bound, — that is, 
 who claim mutual or successive relationship to the same right or prop- 
 erty, whether in estate, blood, or in law, are in the same manner con- 
 cluded by it, — as where the judgment is a, proceeding in rem, all who 
 claim the property or thing are bound by its determination. But where 
 such document is used by way of inducement, or to establish a collateral 
 fact, it may be admitted, though the parties are not the same. Thu.s, 
 the record of a conviction may be shown to prove the legal infamy of 
 a witness, or to lay the foundation to let in the proof of what was sworn 
 
 > Statute of U. S. March 27, 1804. 
 » 1 Stark. Ev. 154, ... (1) ; 181, (1). 
 
468 CIVIL LA W. [book hi. 
 
 to on a former trial, or to justify proceedings in execution of the judg- 
 ment. 
 
 § 33. But in order that such document should be conclusive, it must 
 appear that the matter had been finally determined upon the issue and 
 upon the merits, and not as to everything that was incidentally brought 
 in question during the trial, or where the case went off on some col- 
 lateral question. Where it is thus conclusive it is said to be res judicata. 
 When the judgment is introduced to prove a collateral fact in another 
 case, it is conclusive only as to such fact, and not as to the merits of the 
 new case, as a judgment of a former conviction may be given in evi- 
 _dence on the issue as a plea in bar of another prosecution. So where 
 B, who had been acquitted, had brought an action against A for mali- 
 cious prosecution, on the trial it would have been necessary to prove 
 the acquittal, and for this purpose the record of the acquittal would 
 have been conclusive, but not upon its general merits as to the prose- 
 cution having been malicious and without a probable cause. 
 
 § 34. 3. A private document is such writing or paper as the party, 
 against whom it is offered, has committed himself as to its contents, 
 as a matter of contract or as to an admission of the facts it con- 
 tains. Letters, depositions, and contracts, written by the party, and 
 sent or executed to other parties, may be used against him as evidence 
 of what he has acknowledged or admitted to be the fact. But the whole 
 must be taken together, and it can be no stronger against him than a 
 fair construction of the whole will put upon it. And here it is said that 
 the law makes a distinction between a confessio juris and a confessio 
 facti. For as to the former the party may not know its legal effect, 
 and his admission be exceedingly erroneous, and therefore little or no 
 weight should be put upon it ; but it is otherwise where the admission 
 of a fact is made, even if it involved a question of law, which is of such 
 a character that it is presumed to be understood. 
 
 § 35. As to contracts, those made with other parties, if admitted at 
 all, could only be admitted as evidence of some certain admission ; but 
 between the parties themselves they may be more than this, as being a 
 contract founded upon a consideration, by which the party may be 
 bound by what is promised or agreed to be done. Paper of the latter 
 kind may be that upon which the action is founded and put in issue, or 
 it may be brought in evidence to prove a collateral fact. But in what- 
 ever way brought in, unless it is admitted by the pleadings, it must bo 
 proved. If the paper is in the possession or power of the opposite 
 party, reasonable notice must be served on him or his attorney to 
 produce it on the trial. If so produced, the very production of it is 
 an admission that it is the paper that was called for, and that it pur- 
 ports to be. This notice is necessary in order to lay the foundation 
 for the proof of its contents. If in the hands of third persons, its 
 
CHAP. VI.] EVIDENCE. 469 
 
 production is usually enforced by a writ of subpoena with a duces tecum 
 clause.^ 
 
 § 36. When it becomes necessary to prove the execution of private 
 instruments, it must be done by one of the subscribing witnesses, if 
 there be any. This is the rule as to every species of writing as well as 
 to deeds. But this rule has several exceptions, as — (1) where the in- 
 strument is thirty years old, when it is said that such ancient instru- 
 ments prove themselves ; but in such cases they must be free from just 
 suspicion, and must come from the proper custody, or have been so 
 acted upon as to afford some corroborative proof of their genuineness ; 
 
 (2) when the instrument is produced by the adverse party, pursuant 
 to notice, and the party so producing it claims an interest under it ; 
 
 (3) where the witnesses are unable to attend the court, or are out of its 
 jurisdiction, cannot be found after diligent inquiry, or have become 
 incompetent to testify ; and (4) it seems also to be an admitted ex- 
 ception in respect to official bonds taken by some public functionary, in 
 trust for the benefit of those whom they may concern, and kept and 
 preserved as public property. When the testimony of the subscribing 
 witnesses is dispensed with as secondary evidence, it is usual to prove 
 the handwriting of one of the witnesses, and that of the obligor, and 
 some additional evidence to identify it with the party sued.'' 
 
 § 37. When the instrument is to be proved, and there are no sub- 
 scribing witnesses to it, it is usual to prove it by proving the hand- 
 writing of the party, and this is usually done by persons who can say 
 they were acquainted with his handwriting by seeing him write, and 
 by correspondence with him, and that they recognized the signature in 
 question as his handwriting, and upon this subject they have been per- 
 mitted to declare their belief In contested cases the testimony of ex- 
 perts has been admitted, by comparing the signature in question with 
 others directly proved or admitted to be genuine, although they had no 
 previous knowledge of the party's handwriting.' 
 
 § 38. When the original paper has been lost, then secondary evidence 
 is admitted of its execution and contents. In such cases the first thing 
 to be done is to prove the loss, to the satisfaction of the court, before it 
 will let the secondary evidence go to the jury. For this purpose the 
 evidence of the party himself is admitted upon the principle of neces- 
 sity, to prove to the court that the instrument is actually lost, and that 
 due diligence has been used in searching for it. When the court is 
 
 ' 1 Greenlf. £v. 596. 
 
 2 1 Greenlf. Ev. 569-575; Cliirk vs Boyd, 2 O. R. 56. When the sabscribing 
 witness denies his signature, the execution may be proved by other witnesses. 
 Duckwell m. Weaver, 2 0. E. 13 ; Zerby vs Wilson, 3 O. K. 42 ; Simmons vs. 
 State, 7 O. R. 116 ; Richards vs. Skiff, 8 0. S. R. 586. 
 
 3 Collins vs. State 14 0. S. E. 222. 
 
470 CIVIL LA W. [book hi. 
 
 satisfied upon these points, the secondary evidence is allowed to go to 
 the jury, to prove the execution and the contents of the instrument. It 
 must be shown that it existed as a genuine instrument, having all the 
 requisite evidence of such instrument as it assumed to be. But where 
 proof of the execution would be dispensed with in case the original be 
 produced, proof of the execution is unnecessary where the instrument 
 is lost. After the execution has been proved, its contents should be 
 proved by the best evidence which can be produced, as a counterpart, 
 or other originals, or a copy, or an abstract. If there be no such counter- 
 part or copy, then parol evidence may be given of its contents.' 
 
 § 39. The reason for giving notice, and the necessity for it, ceases 
 when, from the very nature of the suit, the party must know that he 
 is charged with the possession and control of the instrument. There- 
 fore, in trover for a bond or note, or in a prosecution for stealing such 
 instruments, and the like cases, parol evidence of the instrument may 
 be given, without proof of a previous notice to produce them having 
 been given. , 
 
 §40. It has been the practice to admit deeds that are conveyances, 
 executed in accordance with the statute in relation to the acknowledg- 
 ment and recording of deeds in evidence, without other or further proof; 
 and so of the certified copy of the record when they are recorded. But 
 such certified copy of any other instrument than such as is a convey- 
 ance within the statute, is not so admitted in evidence.^ And where a 
 document is produced and admitted, the party reading it must read the 
 whole, for unless the whole be read there can be no certainty as to the 
 real sense and meaning of any part of the instrument. 
 
 § 41. Evidence is classed as to its validity in three grades, that is: 
 1, direct and positive evidence ; 2, presumptive evidence ; and 3, circum- 
 stantial evidence. 
 
 All evidence is dependent for its force and authority upon our ex- 
 perience and reliance upon the capacities of our senses. Evidence is 
 the proof and demonstration of the existence of facts. Its authority de- 
 pends upon the confidence we have in our capacity to know and under- 
 stand the actual existence of facts and circumstances, through the 
 medium of our own senses or those of others. "When the subject-matter 
 of the evidence is brought to the tests and demonstration of our own 
 senses, it is the most satisfactory ; and that which is the next most 
 satisfactory, and which is usually the only evidence, and frequently the 
 only possible evidence of events and matters that have passed, is the 
 testimony or narration of others in whom we place full credence, who 
 liave with their own senses experienced and witnessed the existence of 
 
 1 1 Stark. Ev. 394. 
 
 » Webster vs. Harris, 16 O. E. 490 1 1 Stark. Ev. 412. 
 
cuAP. Ti.] EVIDENCE. All 
 
 the actual facts and circumstances to which they testify. This is what 
 is called direct and positive evidence. 
 
 § 42. But frequently questions arise as to disputed facts, in relation to 
 which there is no direct and positive evidence, but the nearest approach 
 to it is the evidence of other facts and circumstances, from the existence 
 of which the fact in question may be deduced as a presumption or an 
 inference. This is what is denominated presumptive or circumstantial 
 evidence. The force and validity of this evidence depend upon the ex- 
 perience and knowledge of mankind. Truth is known to be a consistent 
 and harmonious whole, so thq,t with confidence one unknown fact may 
 be proved as a presumption or an inference, to be deduced as a natural 
 or probable result or consequence from the facts already actually proved. 
 There is no such thing as infallible evidence dependent upon human 
 testimony ; but frequently circumstantial evidence is so corroborated 
 by concomitant facts and circumstances as to render it, in many in- 
 stances, quite as satisfactory as direct and positive evidence not thus 
 supported. Presumptive and circumstantial evidence thus deduced, 
 though often confounded and used without distinction, are terms not 
 entirely synonymous, and should be distinguished.' 
 
 § 43. Presumptive evidence is such demonstration of the existence 
 of an unknown, by the proof of certain actual facts from which it re- 
 sults, according to human experience and knowledge, as a probable or 
 certain event. It is sometimes so established by experience and judicial 
 recognizance as to become a maxim of law ; and at other times so 
 founded in human experience that the court will take judicial notice of 
 it. Thus, the law presumes a person innocent until the contrary is 
 proved. A person proved to be recently alive is presumed to be still 
 living. A person proved to have been absent and unheard of for more 
 than seven years is presumed to be dead. Sir Matthew Hale first pro- 
 pounded as a limitation of debt that the lapse of twenty years (unac- 
 counted for) was a presumption of payment; which, since, has been 
 followed, both in courts of law and equity, as a maxim and presumption 
 of law. ^ But wherever a matter may be thus presumed, as an almost 
 universal rule it is susceptible of being, and may be, controverted and 
 rebutted. Presumptions only exist until the contrary is actually proved. 
 
 § 44. But circumstantial evidence is something different from pre- 
 sumptive evidence. It is an inference drawn from a variety of facts 
 
 ' In Greenleaf on Evidence and Powell on Evidence, presumptive and cir- 
 cumsfantial ev. are treated as the same ; but Stark. Ev. distinguishes between 
 them. 
 
 2 And adverse peaceable possession for twenty-five or thirty years will raise a 
 presumption of a grant or title in favor of him who has enjoyed such possession, 
 even against the government. 1 Greenlf. Ev. 20, 21 ; see Bierce vs. Pierce, 15 
 O. R. 529. 
 
472 CIVIL LAW. BOOK m. 
 
 and circumstances, which, according to human experience and teason, 
 tend satisfactorily to demonstrate and prove the fact in question as a 
 logical conclusion from the premises, not as a presumption, but as an 
 inference ; and it results as a truth from mere syllogism, of which the 
 major premise is not a rule of law, but is the common and received re- 
 sult of the truth of propositions and the result of arguments. It is the 
 result of investigation and conclusion in matters of law, as it would be 
 in any other subject of human inquiry or matter of science : the convic- 
 tion as to the truth of a certain unknown pi'oposition, inferred from 
 other surrounding facts and circumstances that are known or proved. 
 
 § 45. The difference between what may be called presumptive evi- 
 dence and that which is circumstantial is this, that presumption results 
 from the known and established truths or principles that the proof of 
 one fact, or a number of connected and dependent facts, have in demon- 
 strating and proving the inquiry. Whenever this occurs, the court 
 will take judicial notice of it, as a maxim of law or well-established 
 principle of human knowledge, and will not hesitate to charge the jury 
 as to the presumption. But when the question sought for is to be 
 deduced from a variety of disconnected facts and circumstances upon 
 which it depends, the court will not instruct the jury to presume ; but, 
 that if, after an investigation of the facts and circumstances proved, they 
 in their conscience believe beyond a reasonable doubt that the fact of 
 their inquiry existed, then they might infer it as true. We presume from 
 a fact that, as a maxim or established principle, the premises prove the 
 conclusion ; but we only infer from circumstances that it may be true. 
 We presume a man to be innocent until proven guilty as an established 
 maxim; but we may infer his guilt from the circumstances of his case. 
 
 § 46. Where the connection and dependence between one fact and 
 another are so uniform and reliable as to receive general acknowledg- 
 ment, the proof of the one is properly termed a presumption of the 
 other ; but where the question is dependent upon a variety of circum- 
 stances, and the evidence to be deduced from them is the conclusion to 
 be drawn from general experience and reason, it is circumstantial evi- 
 dence as contradistinguished from presumptive.^ But in order that 
 such circumstances should be admissible evidence for the purpose of 
 proving the fact sought for, they must be consistent with, and have a 
 rational tendency to prove it, and its efficacy will depend upon the force 
 and tendency of these circumstances to establish the ti'uth of the dis- 
 
 ' 1 Stark. Ev. 57 and 560. In the case of the Commonwealth of Mass. vs. J. 
 F. Knapp, Mr. Webster assumed the motives of the defendant as a presumption 
 arising from the relation that the conspirators bore to the murdered man White; 
 but as to the conspiracy and murder itself, Mr. W. said : "This is a case of cir- 
 cumstantial evidence, and these circumstances, we think, are full and .latisfae- 
 tory." 
 
CHAP. VI.] EVIDENCE. 473 
 
 puted fact, and exclude any other hypothesis. In accordance with this, 
 the law rejects and excludes all evidence of such facts and circum- 
 stances as have no such rational connection and tendency, or are the 
 acts, sayings, or doings of strangers, and would fall within the rule of 
 being res inter alios acta. 
 
 III. APPLICATION 01" THE EVIDENCE TO THE PEOOP OP THE 
 
 ISSUE. 
 
 § 47. Having considered the general principles of the law of evidence, 
 and the instruments by which it is produced to the consideration of the 
 court and jury, it now remains to consider the application of these prin- 
 ciples and instruments to the proof of the issues. In doing so, it is to 
 be observed that there are three important parts of the subject to be 
 considered : — 1, if is the duty of the parties to produce the necessary 
 evidence to prove and sustain the issue ; 2, it is the province of the 
 court to pronounce upon its legal effect, — to control, admit, or reject it ; 
 and 3, it is the duty of the jury to decide upon the facts, and to apply 
 the law, unless, by finding the facts by a special verdict, they cast the 
 duty of applying the law upon the court. 
 
 § 48. It is, as a general rule, incumbent upon the party who as- 
 sumes the affirmative of the issue to prove it, and this leads us to con- 
 sider — first, upon whom the proof of an issue or fact is incumbent ; and 
 secondly, the nature, quality, and quantity of the evidence to be 
 adduced. This is what is called the onus probandi. 
 
 § 49. The first general rule as to the production of proof is, that the 
 evidence must be confined to the issue, and must correspond with the 
 allegations of the party. This leads us to consider first, what, in the 
 altercation of the parties, need not be proved, for that might at once 
 raise an objection to the admission of the evidence. 
 
 § 50. The parties in their pleadings malje allegations of facts upon 
 which their cause of action or defense depends. The opposite party 
 traverses such allegation or admits it ; and what is not traversed is, as 
 a general and necessary rule, admitted. What is thus admitted by the 
 pleadings need not and ought not to be proved ; nor need there be any 
 proof upon subjects or facts that the law will presume, or that the court 
 take judicial notice of. The pleadings, therefore, should be carefully 
 examined, to ascertain what are the precise points put in issue, and thus 
 left to be proved by the introduction of evidence. 
 
 § 51. When a point in issue is to be proved, the burden of proving it 
 rests upon the party who states the affirmative, and not by the party 
 who states the negative ; and this is to be tested by ascertaining what 
 is the substance of the affirmative, and not merely the affirmative in 
 form ; for it is a rule that it is only the substance of the issue- that is 
 
474 CIVIL LA W. [book hi. 
 
 to be proved. Generally, allegations which are introductory and ex- 
 planatory may be treated as a matter of mere inducement, and conse- 
 quently as a surplusage which need not be proved ; but sometimes 
 irrelevant rnatter may be so incorporated with essential matter as to 
 render them legally inseparable, and must, therefore, be proved. 
 
 § 52. It is a general rule, that a party is not bound to prove a nega^ 
 tive ; but where it becomes an essential element in his right of action or 
 defense, it may be otherwise ; as where the plaintiff rests his right of 
 action upon a negative allegation, the establishment of such negative 
 (to a prma /acie extent at least) is an essential element in his case. 
 Thus, in an action for having prosecuted the plaintiff maliciously, and 
 without a probable cause, the want of probable cause must be made 
 out by the plaintiff by some affirmative proof, though the proposition 
 be negative in terms. But when the subject-matter of the negative 
 averment lies peculiarly within the knowledge of the opposite party, 
 the averment is taken as true, unless disproved; as where a person is 
 charged with doing a prohibitory act without a license. As he can 
 show his license, if he have one, without inconvenience, while it would 
 be difficult for the other party to do so, then in case he refused to pro- 
 duce it, it would be presumed he had none. 
 
 § 53. But there may be more than one issue, or a number of inde- 
 pendent issues on each side ; then the question is frequently raised, 
 Who begins and opens the case ? The rule is, that if the plaintiff has 
 the affirmative on any one of the issues, he has the affirmative and the 
 opening and close in the whole case.' The defendant cannot claim this 
 advantage unless he has taken upon himself the affirmative of the 
 issues as to the whole matter. 
 
 § 54. The next consideration is the quantity and quality of the evi- 
 dence to be adduced. As to the first, it is much to be determined by 
 the matter put in issue ; for the rule is, that the evidence must be con- 
 fined to the issue, and correspond to the nature of the allegations. The 
 evidence must come up to the issue, or there is a want of testimony or 
 evidence ; if it differ from the issue, it is then objectionable on the 
 account of its variance or irrelevancy. 
 
 § 55. When the evidence adduced and the allegations on the record, 
 constituting the pleadings and issue between the parties, differ, and 
 there is a material discrepancy between them, it constitutes what is 
 termed a variance or irrelevancy.^ A variance is where the evidence 
 approaches the issue and is something like, but differs in identity ; but 
 irrelevancy is where the evidence is foreign to the issue, and is imperti- 
 nent and inapplicable to support it. It is easier to point out and dis- 
 criminate between the former and the issue than to do that as to the 
 
 1 16 0. K. 324; 11 0. S. K. 339. 2 Powell's Ev. 178-203. 
 
CHAP. Ti.] EVIDENCE. 475 
 
 latter, for the evidence and issue are brought into immediate comparison 
 to prove their identity or variance ; but when the objection to the evi- 
 dence is that it is irrelevant, and not merely that it is variant, it becomes 
 a more difficult question, for circumstances are frequently admitted to 
 be proved to raise a presumption or Ay&w an inference. Frequently, 
 when the evidence is indirect, it is difficult to determine whether the 
 evidence offered is irrelevant or not. 
 
 § 56. But whether the objection to the evidence is on account of a 
 variance or that of an irrelevancy, the difficulty occurs more frequently 
 than otherwise on account of careless, unskillful, and unheard-of kind 
 of pleadings, and the time of the court taken up and misspent in ascer^ 
 taining the real meaning of the pleading, and in determining whether 
 the objection is a matter of substance or mere form, and whether 
 the opposite party has not come in good faith to meet the issue iu one 
 shape, and is now. prejudiced by being unexpectedly called upon to 
 meet a different issue. Under the practice that has long prevailed, 
 both at common law and under the code, the courts have disregarded 
 mere matter of form, and determine these questions according to the 
 substantial matter of justice between the parties. And the courts are 
 permitted, by legislative provisions, to allow, upon some just terms, 
 almost unlimited amendments of the record, so as to obviate such ob- 
 jections. Where such objection occurs on account of bad pleading, 
 even where obviated by amendments, it .is attended with expense and 
 trouble, and much hinderance to the time of the court. Whenever such 
 substantial and material objection does, however, occur on account of 
 the variance or irrelevancy of the evidence, the party must submit to 
 a nonsuit, or an adverse verdict, or to amend upon such terms as the 
 court will give, with a view to doing substantial justice between the 
 parties. 
 
 § 51. Upon this subject our supreme court have said : " The code 
 authorizes an amendment even where the mistake goes to the substance 
 of the pleadings or proceedings. . . . The only limits seem to be to 
 cases where an amendment would not be in furtherance of justice. 
 While, on the one hand, courts will not visit upon a suitor the mistakes 
 of his attorney, by throwing- his case out of court, they will, at the same 
 time, carefully protect the party who objects to a defect in pleadings or 
 proceedings, from suffering any unreasonable delay or injustice by the 
 correction of mistakes. Cases, undoubtedly, will occur where it will 
 not be in furtherance of justice, but a manifest encouragement of a liti- 
 gious spirit, to permit an amendment ; and probably, in such cases, the 
 court will not interpose. Where, too, the defect in the proceeding is so 
 gross, or is committed under such circumstances as to indicate that the 
 defect itself was designed, and not simply a mistake, the court would 
 
476 CIVIL LAW. [book hi. 
 
 probably refuse permission to amend ; for in such case no mistake has 
 in fact been made."' 
 
 § 58. The quality of the evidence offered is next to be considered. 
 The jury are to weigh and determine the amount of credence to be 
 given to the evidence, and determine whether a matter is proved or not 
 when the evidence is submitted to them. But before it can go to the jury, 
 the court may first determine upon its competency, or its quantity, as it 
 respects its variance or irrelevancy, and lastly as to its quality. For it 
 is a rule of evidence, that the best attainable evidence must be adduced 
 to prove every disputed fact. This rule rests, for its principle, on the 
 presumption that if inferior evidence is offered, when evidence of a better 
 nature is attainable, the substitution arises either from fraud or gross 
 negligence. Thus, if parol evidence is offered of the contents of a writ- 
 ing instead of the instrument itself, or a copy instead of the original ; 
 in each of these and the like cases the court would exclude such inferior 
 evidence from the jury until a foundation is first laid for the admission 
 of such secondary evidence, by proving to the satisfaction of the court 
 that such better or primary evidence was not attainable, or lost. Upon 
 the court being satisfied that the party has used due diligence, and that 
 such primary evidence was not attainable, they then admit the secondary 
 evidence to go the jury.'' 
 
 § 59. To the general rule, that the contents of a writing cannot be 
 proved without producing it, there is apparently an exception ; as where 
 the primary and secondary evidence and the fact to be proved are all 
 collateral to each other. Thus, where there is a receipt for the pay- 
 ment of money, and collateral parol evidence of the same fact, it may 
 be proved by either. The question of tenancy may be proved by a 
 collateral fact, as the payment of rent, and such payment of rent may 
 be proved without the introduction of the written lease or the written 
 receipt of the payment.^ But this class of exceptions can be maintained 
 only where the fact, of which oral evidence is admitted, is something 
 extrinsic and collateral to the written instrument. 
 
 § 60. It has been stated as a rule, in ihe production of evidence, that it 
 was the substance of the issue that was to be proved. Between that 
 rule and those which determined the quantity and quality of evidence 
 to be produced, there are a number of collateral rules that should be 
 noticed in connection with them. 1. A distinction is made between 
 allegations of matter of substance and allegations of matter of essential 
 description. The former may be substantially proved, but the latter 
 must be proved with a degree of accuracy that will exclude differ- 
 
 1 Irwin vs. Bank of Bellefontaine 6 0. S. E. 81 ; Ohio Dig. 96-98 ; Code, J 131, 
 132, 187. 
 
 2 See ante, § 9. a Powell's Ev. 38. 
 
CHAP. VI.] EVIDENCE. 477 
 
 ence as to identity. Thus, in an action for malicious prosecution, the 
 plaintiff may allege that he was acquitted of the charge on a certain 
 day : here the substance of the allegation is the acquittal, and it is suffi- 
 cient if it be proved on any day, the time not being material. But if 
 the allegation be that the defendant drew a bill of exchange of a certain 
 date and tenor : here every allegation, even to the precise day of the 
 date, is descriptive of the bill, and essential to its identity, and must be 
 strictly proved. 
 
 § 61. 2. But, in general, the allegations of time, place, quantity, 
 quality, and value, when not descriptive of the identity of the subject 
 of the action, will be found immaterial, and need not be proved strictly 
 as alleged. Thus, in trespass to the person, the material fact is the 
 assault and battery, the time, place, and number not being material, un- 
 less made so by the nature of the justification and the manner of plead- 
 ing. But when these things are inserted in written documents, and re- 
 peated in the pleadings as a part of their description and identity, 
 they then become essentially descriptive, and require to be precisely 
 proved. 
 
 § 62. 3. The party is entitled to a verdict in his favor on any one of 
 the issues that he substantially proves, though he fails on the others, and 
 also fails on that as to time, place, quantity, and value. Thus, if the 
 plaintiff has in his declaration a number of counts, and substantially 
 proves any one of them, he will be entitled to recover on that ; and so 
 if the defendant has a number of pleas, and thus succeeds on any one of 
 them, he will be entitled to the benefit of that one. So, also, if he 
 proves only one of his allegations as to the number or value of the 
 articles he sold, or the amount, or value of the work he has performed, 
 and the like, he will be entitled to recover for what he has substantially 
 proved. 
 
 IV. EVIDENCE AS CHANGED BY THE CODE. 
 
 § 63. Having developed the principles of evidence as practiced in re- 
 cent times under the common law, and in Ohio previous to the code, it 
 shall now be the object to demonstrate the principal alteration produced 
 in the law of evidence by that change. The first great change produced 
 is that in relation to the competency of witnesses. The code declares 
 that "no person shall be disqualified as a witness in any civil action 
 or proceeding by reason of his interest in the event of the same, as a 
 party or otherwise, or by reason of his conviction of a crime ; but such 
 interest or conviction may be shown for the purpose of affecting his 
 credibility.'" And another section provides that any party to a civil 
 action may compel an adverse party, at the trial or deposition, to testify 
 
 » Code, I 310. 
 
478 CIVIL LAW. [book hi. 
 
 in the same manner as other witnesses. Thus has been abolished all 
 distinction between parties to the action, and other witnesses as to 
 competency, making the objection only a question as to their credi- 
 bility. 
 
 §64. The code, then, declares that no party shall be thus allowed to 
 testify where the adverse party is the guardian of any person, or the 
 executor or administrator of any deceased person, or the guardian of a 
 child of a decedent, where the facts to be proved transpired before the 
 death of such deceased persons, except as to certain suits on contracts 
 entered into by agents, and book accounts.' The deposition of a party 
 shall not be used in his own behalf unless the legal notice, required in 
 a case where depositions are to be taken, shall also specify that the 
 deposition to be taken is that of the party. Where deposition is taken 
 in any pending suit, and the party die before trial, the opposite parly 
 may testify as to matters in the deposition. 
 
 § 65. Another section provides that the following persons shall be 
 incompetent to testify: — 1st. Persons who are of unsound mind at the 
 time of their production for examination. 2d. Children under ten years 
 of age, who appear incapable of receiving just impressions of the fads 
 respecting which they are examined, or of relating them truly. 3d. 
 Husband and wife, for or against each other, or concerning any com- 
 munication made by one to the other during the marriage, whether 
 called as a witness while the relation subsists or afterward, except in 
 actions where the wife, were she a feme sole, would be plaintiff or de- 
 fendant, in which action the wife may testify. Either the wife or hus- 
 band may testify, but not both. 4th. Attorneys in relation to profes- 
 sional confidence. 5th. A clergyman or priest concerning any confession, 
 etc. 6th. Any person incompetent under section 313," if he offer him- 
 self as a witness, it is to be deemed a consent to the examination of 
 attorney, etc., also on the same subject' 
 
 § 66. The code next provides for the subpoenaing persons to attend 
 court as witnesses, compelling them to attend, and pointing out the mode, 
 in certain cases, of examining them, very much on common law princi- 
 ples. It also provides that when a witness is a resident out of the 
 county, or otherwise unable to attend court, his deposition might be 
 taken upon giving certain notice thereof to the opposite party, and directs 
 the mode of taking such deposition, and taking exceptions thereto.* 
 
 § 67. The code makes the following judicious provisions upon the 
 subject of the admission, inspection, and production of documents as 
 evidence:^ — 1. "Either party may exhibit to the other, or his attorney, 
 at any time before trial, any paper or document material to the action, 
 
 » Code, ? 313 and 314. ' Code, J 314. » Code, J 315. 
 
 * Code, i 31G-358. ^ Code, J 359-362. 
 
CHAP. VI.] EVIDENCE. 479 
 
 and. request an admission in writing of its genuineness. If the adverse 
 party or his attorney fail to give the admission in writing within four 
 days after the request, and if the party exhibiting the paper or docu- 
 ment be afterward put to any cost or expense to prove its genuineness, 
 and the same be finally proved or admitted on the trial, such cost and 
 expense, to be ascertained at the trial, shall be paid by the party refus- 
 ing to make the admission, unless it shall appear to the court that 
 there were good reasons for the refusal." 2. " That the court, where 
 any action is pending, shall have power, on motion, and ten days' no- 
 tice thereof, to require the parties to produce books and writings in their 
 possession or power which contain evidence pertinent to the issue, in 
 cases and under circumstances where they might heretofore have been 
 compelled to produce the same by the ordinary rules of producing in 
 chancery," etc.; and provides means of enforcing the same, and to order 
 inspection and copies of books, papers, and documents. 3. If either 
 party, upon request, shall refuse to furnish copies of any deed, instru- 
 ment, or other writings whereon the action or defense is founded, the 
 party so refusing shall not be permitted to give the same in evidence 
 at the trial. 
 
 § 68. The code provides that printed copies of statutes, code, and 
 other written laws enacted by any other State or Territory, or foreign 
 government, shall be admitted as presumptive evidence of such law. 
 The unwritten or common law of any other State, Territory, or foreign 
 government may be proved as facts by parol evidence ; and the books 
 of reports of cases adjudged in the courts may also be admitted as pre- 
 sumptive evidence of such law. 
 
 § 69. The code also provides for the perpetuating of testimony. A 
 petition may be filed in the court of common pleas, stating the particu- 
 lar case, and the necessity for the proceedings, and duly verified; there- 
 upon the court, or a judge thereof, may order the necessary proceedings ; 
 thereupon interrogatories and cross-interrogatories are filed, and the 
 depositions are taken, to be perpetuated under the order of the court or 
 judge ; the applicant, however, to pay all the costs of the proceedings. 
 
480 CIVIL LA W. [booe hi. 
 
 CHAPTER VII. 
 
 TRIAL, VERDICT, AND JUDGMENT, 
 
 § 1. The principles of pleading and evidence being settled and un- 
 derstood, the next subjects to be considered are the trial, verdict, and 
 judgment. The parties, by means of the pleadings, having been brought 
 to an issue on the subject-matter of their controversy, w^hich now must 
 be heard and tried before the court. The issue or issues in a case may 
 be either one of law or of fact, or both. It is entirely a question of 
 law where the facts are admitted or agreed upon by the parties, as in 
 cases of demurrer, or where the parties put upon the record, with the 
 pleadings, an agreed statement of the facts; so that the court has only 
 to hear the case and arguments of counsel, consider and determine the 
 law of the case as thus submitted, and to render judgment accordingly. 
 But if the case is in two or more parts, in some of which there are 
 issues of law and in others issues of facts, those of law must be first 
 determined, — for when the issues of law are determined, the party may 
 have leave to amend and put more at issue in fact than when first sub- 
 mitted upon the pleadings. But when there is an issue of fact in the 
 case, it must be tried and settled before the court can pronounce its 
 final judgment upon the law of the case, and the determination of the 
 matters in controversy between the parties. 
 
 § 2. The trial means the investigation and determination of the case 
 before the proper tribunal provided by the law for that purpose. Ac- 
 cording to our laws and practice there are three judicial modes of trial 
 of civil action, dependent upon the matter in issue between the parties, 
 and sometimes also upon the consent and arrangement of the parties 
 themselves. These modes are — 1, by the court ; 2, by the referees ; 
 and 3, by a jury. 
 
 § 3. 1. The court, at all times, has the control, management, and 
 direction of the trial ; and it is the duty of the court to see that the 
 same is had in accordance with law and justice. The general rule is 
 that all questions of law must be determined by the court, and ques- 
 tions of fact by the jury. At common law, when actions at law and 
 suits in equity were kept separate and distinct, it was comparatively 
 an easy matter to determine what was within the province of the court, 
 and what, for its determination, must go to a jury. But the code, by 
 uniting all principles of law and equity and all the distinctions between 
 them in the same action, both in the urosecution and the defense, it has 
 
CHAP. Til.] TRIAL, VEBDICT, AND JUDGMENT. 481 
 
 become more difiBcult, in some cases, to determine the province of the 
 court and that of the jury. For in equity there are numerous cases 
 where the court of equity, upon the peculiar grounds of the equity, 
 always exercises the power of determining the facts as well as the law 
 upon which the peculiar grounds on which the equity of the case rests. 
 This would be the case where cases of pure actions of law are mixed 
 up under the code with cases that are purely cases in equity, as fraudu- 
 lent assignments, trusts, specific performance, and the like.' 
 
 § 4. The code provides that "issues of law must be tried by the 
 
 court, unless referred Issues of fact arising in actions for the 
 
 recovery of money, or of specific, real, or personal property, shall be 
 tried by a jury, unless a jury-trial is waived, or a reference be ordered." 
 . . . . " All other issues of fact shall be tried by the court, subject to 
 its power to order an issue to be tried by a jury or referred."^ The 
 court may be required to try the case in actions arising on contract, 
 when the parties waive a trial by jury; and with the assent of the 
 court, in other cases, where one party fails to appear, and the party 
 appearing consents to the trial by the court ; or where the parties con- 
 sent thereto by writing filed with the clerk, or by an entry on the jour- 
 nal.' When the court thus tries the case upon the issue of facts, it is 
 unnecessary for the court to state its finding, except by a general finding 
 for the plaintiff or for the defendant, unless one of the parties requires 
 it, with the view of excepting to the decision of the court upon the 
 questions of law involved in the trial, — in which case the court shall 
 state in writing the conclusions of facts found, separately from the con- 
 clusions of law.* 
 
 § 5. Under the common law practice, in cases where judgment had 
 been rendered against the defendant upon a demurrer, or when in 
 default, and it became necessary to assess damages for the plaintiff, it 
 was customary for the court to issue a writ of inquirf to the sheriff, 
 requiring him to summon a jury, and hold an inquest, and assess the 
 amount of damages to which the plaintiff was entitled by his case. 
 But such writs of inquiry and inquest have never been the practice in 
 Ohio ; but such damages were assessed by the court, or by a jury sum- 
 moned before the court and under their direction, as in other cases of 
 
 1 See Draper vs. Day et al., 11 Howard's K. (N. T.) 439; Klonne vs. Bradstreet, 
 2 Handy's B. (Otiio), 74. In these cases the court determined that in such cases 
 in equity under the code, it was a question of discretion with the court whether 
 to refer such question of fact to a jury or not. 
 
 2 Code, § 263, 264. 
 
 ' Code, J 279. The distinction is, that in cases on contract, where the parties 
 waive the right of trial by a jury, the court is hound to try the facts of the 
 case ; in other cases, not on contract, it is discretionary in the court. 
 
 « Code, I 280! 
 
 31 
 
482 CIVIL LAW. [book m. 
 
 trial. But now the code provides — " If the taking of an account, or 
 the proof of a fact, or the assessment of damages be necessary to enable 
 the court to pronounce judgment upon a failure to answer, or after a 
 decision of an issue of law, the court may, with the assent of the party 
 not in default, take the account, hear the proof, or assess the damages ; 
 or may, with the like assent, refer the same to a referee or master com- 
 missioner, or may direct the same to be assessed by a jury. If a jury 
 be ordered, it shall be on or after the day on which the action is set for 
 trial.^ But this shall not be construed to impair the right of a party to 
 a jury, if he appear at the trial and demand the same.'" 
 
 § 6. There are few other instances where the trial is wholly had by 
 the court, and the aid of the jury is dispensed with, unless it be for the 
 mere assessment of damages, as where the issue is dependent upon 
 the existence of a record or some matter of which the court takes judi- 
 cial notice. When a matter of record is alleged as the foundation of 
 the action or subject of defense, and the other party pleads, there is no 
 such record (nul tiel record); upon this issue the court will try the 
 question, upon the inspection of the record, or a duly certified copy of 
 it. In alleging the record, the party usually concludes his pleading by 
 saying, "And this he is ready to verify by the record, etc.," or, in the 
 ancient law language, " Patet per recordam." 
 
 § T. When by the pleadings the record is thus put in issue, it can 
 only be determined by the production of the record itself, or by a duly 
 authenticated copy of it. This the court tries and determines by the 
 inspection of it. It is not a question of fact for the jury to determine ; 
 but every question in relation to it is purely a question of law ; as to 
 its authenticity, its force, effect, and amount, are all questions of law, 
 which the court determines for itself. If the question of the record be 
 so connected and linked in with the facts of the case as that it must 
 go to the jury as a matter constituting part of the case to-be deter- 
 mined by them, they are bound to receive the determination and direc- 
 tion of the court as to its authenticity, validity, and force. If the 
 original record has been lost or destroyed, secondary evidence might 
 be admitted of its contents ; then the question of the existence of such 
 record — whether it ever existed or not — might be a question of fact for 
 the jury. 
 
 , § 8. For the purpose of proving the record, when put in issue, the 
 original record itself might be produced, when convenient; but the 
 usual course is to procure an exemplified copy (in accordance with the 
 act of Congress), by the attestation of the clerk, and the seal of the 
 court annexed, together with a certificate of the judge or presiding 
 
 » Code 3 376. a Code, g 598. 
 
CHAP, vii.] TRIAL, VERDICT, AND JUDGMENT. 483 
 
 magistrate of the court, that the said attestation is in due form ;' or 
 an office copy of a record, authenticated by a person intrusted for that 
 purpose, as an officer having the legal custody of public records. Such 
 copies, certified by the clerk of the court under its seal, are usually re- 
 ceived as evidence of the record; but the safest rule would be to obtain 
 an exemplified copy certified in accordance with the act of Congress.^ 
 
 § 9. 2. Trial by referees may be had, and thereby the trial by the 
 court or the jury be in some cases superseded. The code provides 
 that " all or any of the issues in the action, whether of fact, or of law, 
 or both, may be referred," upon the consent of the parties. And " when 
 the parties do not consent, the court may, upon the application of either, 
 or of its own motion, direct a reference in any case in which the par- 
 ties are not entitled by the constitution of this State to a trial by 
 jury."' 
 
 § 10. At common law it was customary for the court, by the consent 
 of the parties, to refer the case to the determination of certain reference 
 or arbitration, as agreed upon by the parties ; and upon the return of 
 such reference or award, the court, unless there were some just objec- 
 tion to it, would enter up judgment in the case in accordance with 
 such finding. When a case is thus referred, it is tried before the 
 referee out of court; and upon such trial the referee assumes the power 
 and authority of a court, for the purpose of the trial, and hears and 
 determines the case very much in the same manner, and makes a report 
 of its finding therein to the court. 
 
 § 11. As to the mode of trial before referees, the code directs that it 
 shall be "conducted in the same manner as a trial before the court." 
 They have the same power to summon and enforce the attendance of 
 witnesses, to administer all necessary oaths in the trial of the case, -and 
 to grant adjournments as the court upon such trial. They must state 
 the facts found, and the conclusions of law, separately, and their deci- 
 sion must be given, and may be excepted to and reviewed in like man- 
 ner. The report of the referees upon the whole issue stands as the 
 decision of the court, and judgment may be entered thereon in the same 
 manner as if the action had been tried by the court. When the reference 
 is to report the facts, the report has the effect of a special verdict."* 
 
 § 12. The parties, except where an infant, may agree upon a suitable 
 person or persons, not exceeding three, for such reference ; and if the 
 parties do not agree, the court shall appoint such as shall be free from 
 
 1 Act of Congress, May 20, 1790, and March 27, 1804. See Greenleaf s Ev. 
 i 501, 508. 
 
 ' In New York the question as to the record is made a question of fact for the 
 jury by statute. 
 
 » Code, i 281, 282. * Code, g 283. 
 
484 CIVIL LAW. [book III. 
 
 exception. Upon the written consent of the parties, a judge of the 
 court may make any order of reference, which shall be filed with the 
 clerk of the court with the other papers in the case. All such referees 
 must be sworn well and faithfully to hear and examine the case, and 
 make a just and true report, according to the best of their under- 
 standing.^ 
 
 § 13. The referees thus appointed, in the discharge of their duties 
 possess judicial functions ; and, with the exception of rendering judg- 
 ment and issuing execution, they possess all the powers of the court 
 that appoint them. The report of the majority is their judgment under 
 the reference, which is final, unless set aside for causes. Objection to 
 the mode of proceedings at the trial, as to the admission of evidence 
 and the like, should be taken by a bill of exceptions at the time ; for, as 
 a general rule, the award cannot be re-examined unless the error ap- 
 pears in the proceedings themselves. An appeal from the common 
 pleas to the district court vacates the report, and the case stands there 
 for trial as though no reference bad been made.^ 
 
 § 14. But although the court will only review the report as to their 
 determinations and proceedings as they appear as errors in the report, 
 still, if there be grounds of complaint on the account of irregularity or 
 misconduct on the part of the referees, the court may, and on just grounds 
 will, set aside the report, or the report and reference, as the justice of 
 the case may seem to require. The rules of law, which protect parties 
 from any undue influence upon the minds of jurors, seem to be sub- 
 stantially applied to referees. So that where examinations were had, 
 or evidence received in the absence of, and without notice to, one of the 
 parties, the report was set aside for irregularity. The conduct of a 
 referee should not only be such as to avoid all improper influence, but 
 even the appearance of wrong, so that the parties, whether satisfied 
 with the decision or not, shall have no just grounds to question the 
 fairness of the proceedings. 
 
 § 15. The report of the referees should contain only the finding of the 
 referees in accordance with the order of reference. It should contain 
 their finding upon all the issues between the parties; but where there 
 are issues upon which there is no evidence, the report, it seems, need 
 not notice them ; and where an issue is necessarily determined by the 
 rest of the report, it will be deemed sufficient. When both the facts 
 and the law of the case are referred, the report must report the finding on 
 each separately. If the report fails in any of these respects, on motion, 
 it may be ordered to be amended, or set aside, and a rehearing ordered.' 
 But the report ought not to be incumbered with extraneous matter, oi 
 
 1 Code, § 284-288. ' Lawson vs. Bissell, 7 0. S. E. 129. 
 
 3 Snook vs. Pries, 19 Barbour's B. (N. Y.) 313. 
 
CHAP. VII.] TRIAL, VERDICT, AND JUDGMENT. 485 
 
 even the evidence upon which they fixed the facts, unless it be upon its 
 being necessarily embodied in a bill of exception as a part of it. 
 
 § 16. The report, like the verdict of a jury, is, as a general rule, con- 
 clusive upon the parties where there is a mere conflict of evidence ; and 
 is only to be set aside where the finding is clearly against the weight of 
 evidence, or where, upon the trial, some rule of evidence or principle of 
 law has been violated.' Where no objection was made before the 
 referees as to the mode of proceeding, and no exceptions are taken be- 
 fore them and embodied in the report, both parties are concluded by it; 
 such matters will not be beard^ upon the hearing of the cause upon the 
 referees' report, for then the court as to such matters is confined to 
 errors that appear in the report. 
 
 § 17. 3. Trial by a jury, as the means of determining disputed facts 
 injudicial proceedings, is a cherished institution with the people of this 
 country ; and in most important mg,tters is guarantied to them by the 
 Constitution.' In litigated cases where there are issues of facts to be 
 determined, which are not submitted, and to be tried by the court, or by 
 a reference in the manner that has been stated, such eases must be tried 
 in court before a jury. 
 
 § 18. A jury is understood to be a body of twelve men, selected ac- 
 cording to law, impaneled and sworn in the case, and who sit in 
 court, under its control and direction, to hear and determine the issues 
 of facts between the parties. In doing this, the court decides every ques- 
 tion of law arising in the progress of the case, and so instructs the jury, 
 who are bound to receive such instructions as the law of the case. The 
 court also determines the admissibility of the evidence as it is offered, 
 and either admits it to the jury, or rejects it, as it may determine the 
 law to be in relation to the question. When the evidence is heard, and 
 the case submitted to them under the instructions of the court, the jury 
 determine the issues in the case by their verdict ; which usually 
 involves the merits of the whole case, both as to the facts and the law. 
 But if it should appear to the court, from the result of the verdict, that 
 the jury have disregarded the law, the court may set aside the verdict 
 and order a trial de novo. 
 
 § 19. When a jury is required to try a case in court, and there are no 
 jurors attending the court by previous arrangement, the court orders a 
 writ to be issued to the sheriff, called a venire faciaa, commanding him to 
 cause to come before the court twelve good and lawful men of the county, 
 having tjie qualifications of jurors, to sit as a jury in the case. But 
 
 I Durkee vs. Mott, 8 Barb. K. 423; Smith vs. Sohcnck, 18 Barb. R. 344. 
 
 ^ Constitution of U. S. 7th Amendt. " Actions at common law, where the value 
 in controversy shall exceed twenty dollars, trial by jury shall be preserved.'' 
 Constitution of Ohio. 
 
486 CIVIL LA W. [book hi. 
 
 ordinarily other arrangements are had, by which a regular jury attend 
 the court, and are in attendance when the court may call for them in the 
 progress of the ease. 
 
 § 20. Annually, the clerk of the common pleas is required by the 
 statute to issue a requisition upon the trustees of the several townships 
 of his county, requiring them to return to him the names of their pro- 
 portion of persons, having the proper qualifications to serve as jurors, 
 for the whole year. They are apportioned to the several townships as 
 the numbers of qualified electors therein bear to the whole number in 
 the county. These names, when so returned, are put on separate pieces 
 of paper, and put into a box. Thirty days at least before each court it 
 is the duty of the clerk, in the presence of the sheriff, to draw from the 
 box twelve of those names, and insert the same in a venire faciait, 
 directed to the sheriff, commanding him to summon such persons to 
 attend the approaching court, to serve there as a jury. When, in the 
 progress of a case, they are called on as a jury to try a case, they may 
 be severally challenged, to ascertain whether they possess the requisite 
 qualifications, and are impartial jurors. 
 
 § 21. Challenge to jurors may be to the whole array or to the poll. 
 It is to the whole array when it may be objected to on the account that 
 there has been something irregular, or wrong, or partial in the issuing 
 of the venire, or conduct of the officer in summoning the jury. But our 
 mode of designating the jury is so guarded from any imputations of 
 this kind that it is very seldom that we hear of a challenge to the whole 
 arraj'. But where a special venire is issued, requiring the sheriff to 
 summon a jury (of his own choice), the objection may readily occur. 
 
 § 22. The principal qualifications of a juror, and for the want of which 
 he may be challenged (challenged to the poll), are — 1, that he should 
 be a citizen of the county ; 2, that he should have all the qualifications 
 of an elector; and 3, that he should be a good and lawful man,. — that 
 is, not of an infamous character; one whose oath could not be received 
 as a witness, ought not to be a juror. Objections made to a juror for 
 the want of any of these qualifications are denominated principal chal- 
 lenge ; but there is also another class which are denominated challenge 
 for favor, which may be made even when they cannot be so clearl}' 
 pointed out, but are dependent upon reasonable suspicion of partiality, 
 and will act under some undue influence and prejudice. It was formerly 
 the case when any of these objections were made to the juror, that the 
 court, for the purpose of settling the contest, appointed two judicious 
 men to determine the challenge, who were called triors, who deter- 
 mined all questions as to challenges. But our statute upon the subject 
 has in a great measure settled not only the cause of challenge, but the 
 mode of trying them. 
 
 § 23. On these subjects the statute has specially provided, " that if 
 
CHAP. VII.] TBIAL, VEBDICT, AND JUDGMENT. 487 
 
 there shall be impaneled, for the trial of any case, any petit juror who 
 shall have been convicted of any crime which by law renders him dis- 
 qualified to serve on a jury ; or who has been arbitrator on either side 
 relating to the same controversy ; or who has an interest in the cause ; 
 or who has an action depending between him and either party; or 
 who has formerly been a juror in the same cause ; or who is either 
 party's employer, employee, counselor, agent, steward, or attorney ; 
 or who is subpoenaed in the same cause as a witness ; or who is 
 akin to either party ; or any person who shall have served once already 
 on a jury as a talesman in the trial of any cause in the same court 
 during the term, he may be challenged for such cause ; in either of 
 which cases the same shall be considered as a principal challenge, and 
 the validity thereof be tried by the court; and any petit juror who shall 
 be returned upon the trial of any of the causes hereinbefore specified, 
 against whom no principal cause of challenge can be alleged, may 
 nevertheless be challenged on suspicion of prejudice against, or partiality 
 for, either party, or for want of a competent knowledge of the English 
 language, or any other cause which may render him, at the time, an 
 unsuitable juror ; and the validity of such challenge shall be determined 
 by the court, and each party may peremptorily challenge two jurors. ' 
 
 § 24. When in the process of impaneling a jury, by reason of the non- 
 attendance of jurors, or challenge, there should not be asufiScient number 
 of jurors, it has been usual for the court to order the sheriff to fill the 
 panel from the by-standers, and such jurors are denominated talesmen. 
 But now the statute provides that whenever it shall become necessary 
 to summon a talesman or talesmen, either party may make a summary 
 application to the court to issue a venire, and the court shall immedi- 
 ately issue a venire, containing the names of so many discreet and suit- 
 able persons, having the qualifications of electors, as the court shall 
 deem expedient. But if no such application shall be made, the sheriff 
 shall summon talesmen as usual. 
 
 § 25. By the English practice they have what is called a common 
 jury, where the names of only twelve jurors are drawn and inserted 
 in the venire for the trial of the case ; and they have also what is called 
 a special jury, which is had on application of the party, and where the 
 jury is selected from a larger list, by striking until the list is reduced to 
 the proper jury. We have here very much the same proceedings, but they 
 are here more usually called a regular jury, and a struck jury. On the 
 application of either party the clerk of the court is required to draw 
 forty names of jurors from those in the box, and from this list the par- 
 ties proceed, alternately, to strike out twenty-four names, and of the 
 remaining sixteen, the first twelve that are not challenged form the 
 struck or special jury. 
 
 1 Statute, vol. Ivi. Ohio Laws, 25. 
 
488 CIVIL LAW. [book hi. 
 
 § 26. At the trial term, when the case is called by the court, in its 
 regular order on the docket, for its trial, one or the other of the parties, 
 before the jury are called, may find that he is not prepared for trial. 
 This may require him to move the court for a continuance of the case ; 
 and if the opposite party is not himself in a default, and does not agree to 
 the continuance, the applicant for it must show some good cause for such 
 continuance, as something done by the opposite party, or officers of the 
 court, that has honestly led him astray, or caused a mistake, or the ab- 
 sence of a material witness, or evidence, after due diligence used to procure 
 it. This must be shown according to the rules of the court, or it will not 
 be granted. Where ordinary diligence has been used, the court will en- 
 deavor to save a fair trial according to the exigence of the case, either by 
 a continuance, or permitting it to go to the foot of the docket and take 
 its chance to be tried when it conies to its turn again. At common law 
 these continuances were called imparlance, of which they have several 
 sorts, and after a general imparlance they were not permitted to 
 plead an abatement. This imparlance was formerly considered time 
 given to the parties to imparl, to speak or confer together with a view 
 to a settlement. But our continuance has nothing in it like this impar- 
 lance ; it is a simple continuance of the ease, and the parties are left in 
 Htatu quo, unless they have leave to plead anew in the mean time. 
 
 § 27. When the case is really brought to a trial, and the jury called 
 and impaneled in the manner stated, they are then sworn " well and 
 truly to try the issue between the parties, and to render a true verdict 
 according to the evidence." The trial then progresses, and the evidence 
 introduced in accordance with the rules of evidence already treated of. 
 The mode of conducting the trial, the rendition of the verdict, an^ the 
 proceedings thereon, are particularly provided for by the code, and all 
 so much in accordance with common law principles, as practiced before 
 the adoption of the code, that it may be well said to be wise and judi- 
 cious, and the least objectionable part of the code. 
 
 §28. The code provides that "when the jury has been sworn, the 
 trial shall proceed in the following order, unless the court, for special 
 reasons, otherwise direct : — 1. The plaintiff must briefiy state his claim, 
 and may briefly state the evidence by which he expects to sustain it. 
 2. The defendant must then, in like manner, state his defense, and the 
 evidence he expects to offer in support of it. 3. The party, who would 
 be defeated if no evidence were given on either side, must first produce 
 his evidence, and then the adverse party produce his. 4. The parties 
 will then be confined to rebutting evidence, unless the court, for good 
 reasons, in furtherance of justice, permit them to offer evidence in their 
 original case. 5. When the evidence is concluded, either party may 
 request instructions to the jury on points of law, which shall be given 
 or refused by the court, which instructions shall be reduced to writing 
 
CHAP. VII.] TRIAL, VERDICT, AND JUDGMENT. 489 
 
 if either party request it. 6. The parties may then submit or argue 
 the case to the jury. In the argument, the party required first to pro- 
 duce his evidence shall have the opening and conclusion. If several 
 defendants, having separate defenses, appear by different counsel, the 
 court shall arrange their relative order. 7. The court may again charge 
 the jury after the argument is concluded.'" 
 
 § 29. "A view of the property, subject of the litigation, or of the place 
 in which any material fact occurred, may be had by the jury whenever 
 in the opinion of the court it is proper. The court may order them to 
 be conducted in a body, under charge of an officer, to the place, which 
 shall be shown to them by some person appointed by the court for that 
 purpose. While the jury are thus absent, no person other than the 
 person so appointed, shall speak to them on any subject connected with 
 the trial.'" 
 
 § 30. " When the case is finally submitted to the jury, they may de- 
 cide in court or retire for deliberation. If they retire, they must be 
 kept together in some convenient place, under the charge of an officer, 
 until they agree upon their verdict or are discharged by the court, sub- 
 ject to the discretion of the court to permit them to separate temporarily 
 at night, and at their meals. The officer having them under his charge 
 shall not suffer any communication to be made to them, or make any 
 himself, except to ask them if they have agreed upon their verdict, un- 
 less by order of the court, and he shall not, before their verdict is ren- 
 dered, communicate to any person the state of their deliberations or the 
 verdict agreed upon."* "If the jury are permitted to separate, either 
 during the trial, or after the case is submitted to them, they shall be ad- 
 monished by the court that it is their duty not to converse with, or suffer 
 themselves to be addressed by, any other person, on any subject of the 
 trial, and that it is their duty not to form or express an opinion thereon 
 until the cause is finally submitted to them."* 
 
 § 31. "After the jury have retired for deliberation, if there be a disa- 
 greement between them as to any part of the testimony, or if they de- 
 sire 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 informa- 
 tion upon the point of law shall be given, and the court may give its 
 recollection as to the testimony on the point in dispute, in the presence 
 of, or after notice to, the parties on their consent."^ " When they have 
 agreed upon their verdict, they must be conducted into court, their 
 names called by the clerk, and the verdict rendered by their foreman. 
 When the verdict is announced, either party may require the jury to be 
 polled, which is done by the clerk or court asking each juror if it is his 
 
 • Code, I 266. 2 Code, g 267. s Code, g 268. 
 
 * Code, I 269. 6 Code, J 270. 
 
490 CIVIL LAW. [book hi. 
 
 verdict. If any one answers in the negative, the jury must again be 
 sent out for further deliberation."^ 
 
 § 32. " The verdict shall be written, signed by the foreman, and read 
 by the clerk to the jury, and the inquiry made whether it is their ver- 
 dict. If any juror disagrees, the jury must be sent out again ; but if 
 no disagreement be expressed, and neither party requires the jury to 
 be polled, the verdict is complete, and the jury discharged from the 
 case. If, however, the verdict be defective in form only, the same may, 
 with the assent of the jury before they are discharged, be corrected by 
 the court.'" 
 
 § 33. " The court may discharge the jury on account of the sickness 
 of a juror, or other accident or calamity requiring their discharge, or by 
 consent of both parties, or after they have been kept together until it 
 satisfactorily appears that there is no probability of their agreeing.' In 
 all cases where the jury are discharged during the trial, or after the 
 cause is submitted to them, it may be tried again immediately, or at a 
 future time, as the court may direct."' 
 
 § 34. The verdict thus rendered may be either a general or a special 
 verdict. The former is where the jury by some general terms decide 
 the issues, as when they find the defendant guilty, or not guilty, or 
 find for the plaintiff, or the defendant. It is necessary, however, that 
 the verdict should be responsive to all the issues ; and where there are 
 numerous issues, and some inconsistent with others, care should be 
 taken to see that such general verdict is logically consistent with the 
 several issues, or it may be defective and erroneous.* A special verdict 
 is where it finds specially the facts put in issue ; not the evidence upon 
 which such facts depends, but the ultimate facts and truth of the case 
 as put in issue by the parties; and it must be so complete that nothing 
 remains for the court to do but to draw from it the conclusions of law 
 as the result of the case. When there is a general finding as well as 
 a special finding which may be inconsistent with each other, the special 
 finding of the verdict must control, and the judgment thereon must be 
 accordingly.'' But in all instances where the right to recover money 
 is the result of the verdict, the jury, in their verdict, mast assess the 
 amount of such recovery. 
 
 § 35. At common law, the finding of a special verdict was left en- 
 tirely to the choice of the jury ;' but here the code in some measure 
 controls this, and has provided, that "in every action for the recovery 
 of money only, or specific real properly, the jury, in their discretion, 
 may render a general or special verdict. In all other cases, the court 
 
 1 Code, 2 273. = Code, § 274. » Code, § 271. * Code, ? 272. 
 
 6 Hanly vs. Levin, 5 0. R. 227 ; 14 0. E. 187. 
 
 6 Code, I 275, 277. ' 3 Stephens's Com. G20. 
 
CHAP, vn.] TRIAL, VERDICT, AND JUDGMENT. 491 
 
 may direct the jury to find a special verdict in writing upon all or any 
 of the issues ; and in all cases may instruct them if they render a 
 general verdict, to find upon particular questions of fact to be stated 
 in writing, and may direct a written finding thereon.'" It is, in all 
 cases, discretionary with the court whether so to instruct the jury or 
 not; and in those cases first mentionedf in relation to money and real 
 property, it is entirely discretionary with the jury to render a general 
 or special verdict ; but the court may even in such cases require 
 responses to particular questions involved in the case.'' 
 
 § 36. There are some incidental matters connected with the trial and 
 verdict that should be considered before proceeding to that of the 
 judgment. Among them are the following subjects : 
 
 1. Demurrer to evidence is where the party who should sustain the 
 issue has submitted the whole of the evidence he has to offer, and the 
 opposite party claims it insufficient to sustain the point in controversy. 
 For the purpose of raising the question of law on the sufficiency of the 
 evidence, he may demur to the evidence in the same manner as a 
 demurrer to the pleading.' It has the effect to take the question of 
 fact from the jury by the adrnission of all that the evidence could prove, 
 and put the effect of it as a question of law upon the court. By this 
 proceeding, the further consideration of the case is taken from the jury 
 and thrown upon the court. It admits the facts claimed by the evi- 
 dence, but denies their sufficiency in law to maintain the issues in favor 
 of the opposite party, which is strictly a question of law, and forms a 
 striking resemblance to a demurrer in pleading. It is but seldom that 
 demurrer to evidence now occurs, for the reason that the end is now 
 usually accomplished by motion for a new trial, or bill of exception to 
 the opinion of the court upon the question of admissibility of the evi- 
 dence, or to the charge of the court to the jury. The code does not 
 even notice it. 
 
 § 37. 2. Bill of exceptions is a proceeding that occurs in the course 
 of the trial, not for the purpose of any effect it may have on that trial, 
 but as the only means there is to introduce into the record the matter 
 or question excepted to, for the purpose of laying the foundation for 
 proceedings in error, in case the action should go adversely upon that 
 trial. It is an objection taken in writing to any decision of the court 
 in the progress of the trial, to the admission or rejection of evidence, or 
 any decision of the court upon a motion, or upon a matter of law. 
 Upon this subject the code covers the whole ground, and provides that 
 " the party objecting must except at the time the decision is made, and 
 
 1 Code, § 276. As to general and special verdict, see 3 Bouv. Inst. 498. 
 
 » Adams & Co. vs. Pollock, 12 0. S. E. 618. 
 
 » See the subject of demurrer to evidence, well stated in 3 Bouv. Inst. 478. 
 
492 CIVIL LA W. , [book hi. 
 
 time may be given to reduce the exception to writing, but not beyond 
 the term.^ No particular form of exception is required. The exception 
 must be stated, with so much of the evidence as is necessary to explain 
 it, and no more, and the whole as briefly as possible.'' Where the 
 decision objected to is entered on the record, and the grounds of objec- 
 tion appear in the entry, the exception may be taken by the party 
 causing to be noted, at the end of the decision, that he excepts. Where 
 the decision or the grounds of the objection do not sufficiently appear 
 in the entry, the party must reduce his exception to writing, and present 
 it to the court for its allowance. If true, it shall be the duty of a 
 majority of the judges composing the court to allow and sign it, which 
 shall be filed with the pleadings as part of the record, but not spread 
 at large on the journal. If the writing is not true, the court shall 
 correct it, or suggest the correction to be made, and it shall then be 
 signed.' No exception shall be regarded, unless it is material and preju- 
 dicial to the substantial rights of the party excepting."* 
 
 § 38. To this provision of the code there has since been subjoined an 
 important addition by statute, which, among other matters, as to ex- 
 ceptions, provides that " either party shall have the right to except to 
 the opinion of the court on a motion to direct a nonsuit, to arrest the 
 testimony from the jury, and also in all cases of motion for a new trial, 
 by reason of any supposed misdirection of the court to the jurj-, or by 
 reason that the verdict, or in case the jury be waived, that the finding 
 of the court may be supposed to be against law or evidence."^ 
 
 § 39. This statute secures the right to except to the opinion of the 
 court in overruling a motion for a new trial, because the verdict of the 
 jury or the finding of the court is not sustained by the evidence ; but a 
 motion to set aside the finding, overruled by the court, on an exception 
 taken to the decision of the court upon the motion, is indispensable upon 
 a petition in error ; and the bill of exceptions must show upon its face 
 that it contains all the evidence given upon the trial and acted upon by 
 the court below. 
 
 § 40. The bill of exceptions must be made a part of the record; and 
 any paper intended to be a part of it must be incorporated in it, or 
 attached to it, or filed with it, and so described as to leave no doubt of 
 its identity, or the court, on error, will not notice any objection depend- 
 ent upon it. When a proper bill of exceptions has been presented to 
 the judge to be signed and sealed, and he refuses to do so, he may be 
 compelled to do it by a mandamus. 
 
 1 Code, ? 291. 2 Code, § 292. s Code, § 294. * Code, ? 295. 
 
 6 See sect. 4 of the act of April 12, 1858, vol. Iv. O. Laws, 81 ; see Isham vs. 
 Fox, 7 0. S. E. 317 ; Ide vs. Churchill, 14 0. S. E. 372. 
 
CHAP. VII.] TRIAL, VERDICT, AND JUDGMENT. 493 
 
 § 41. 3. A new trial is a re-examination of the issue in fact in the case ;' 
 and this is frequently done upon some grounds that the due administra- 
 tion of justice require, by the court setting aside the proceedings in the 
 trial and granting another, as though there had been none in the case. 
 This is usually done upon motion of the party aggrieved, founded upon 
 some ground that requires it upon principles of justice, as that upon 
 the recent trial the court mistook the law of the case in their charge or 
 direction to the jury ; or that the conduct of the jury had been irregu- 
 lar or wrong ; or the conduct of the opposite party had been so far 
 fraudulent as to mislead ; or some newly-discovered matter or evidence 
 which, if known, would probably have produced a different result. Pro- 
 ceedings of this kind have long been exercised in the common law, by 
 which the parties were put back to try the issues again before the same 
 court, but before a new jury.^ 
 
 § 42. But the whole subject of a new trial is covered and controlled 
 by the code.' It directs that " the former verdict, report, or decision 
 shall be vacated, and a new trial granted on the application of the party 
 aggrieved, for any of the following causes affecting materially the sub- 
 stantial rights of such party : — 1. Irregularity in the proceedings of the 
 court, jury, referee, or prevailing party, or any order of the court or 
 referee, or abuse of discretion, by which the party was prevented from 
 having a fair trial. 2. Misconduct of the jury or prevailing party. 
 3. Accident ov surprise, which ordinary prudence could not have guarded 
 against. 4. Excessive damages, appearing to have been given under 
 the influence of passion or prejudice. 5. Error in the assessment of 
 the amount of recovery, — whether too large or too small, — where the 
 action is upon a contract or for the injury or detention of property. 
 6. That the verdict, report, or decision is not sustained by sufBcient 
 evidence, or is contrary to law. 1. Newly-discovered evidence mate- 
 rial for the party applying, which he could not, with reasonable dili- 
 gence, have discovered and produced at the trial. 8. Errors of law 
 occurring at the trial, and excepted to by the party making the applica- 
 tion." 
 
 § 43. " A new trial shall not be granted on account of the smallness 
 of the damages in an action for an injury to the person or reputation, 
 nor in any other action where the damages shall equal the actual pecu- 
 niary injury sustained.* The application for a new trial must be made 
 at the term the verdict, report, or decision is rendered, and except for 
 the cause of newly-discovered evidence, material for the party applying, 
 which he could not, with reasonable diligence, have discovered and pro- 
 
 1 When a new trial upon an issue in law, by an argument of counsel before 
 the court, it is termed a rehearing. 
 
 2 See 3 Bouv. Inst. 502. s Code, ? 297. « Code, J 298. 
 
494 CIVIL LA W. [book III, 
 
 cured at the trial, and shall be within three days after the verdict or 
 decision was rendered, unless unavoidably prevented.'" 
 
 §44. The application must be made by a motion in writing; and 
 where the grounds of it are upon facts outside of the record and evi- 
 dence before the court, must be sustained by affidavits, which may be 
 controverted by affidavits.' The code also provides that where the 
 grounds of the motion could not, with reasonable diligence, have been 
 discovei'ed before, but are discovered after the term, the application may 
 be made by petition filed as in other cases, which, without an answer, 
 shall be placed on the trial docket and heard upon the evidence, as in 
 other cases ; but no such petition shall be filed more than one year after 
 the rendition of the final judgment. 
 
 § 45. A motion for a new trial is an appeal to the sound discretion 
 and judgment of the court, when the applicant brings his case appa- 
 rently within the causes for which a new trial may be granted. The 
 object is to promote the ends of substantial justice, to prevent injustice 
 and evil practices in the progress of the trial, and preserve confidence 
 in the administration of justice by courts and jury. Sufficient ground, 
 therefore, must be shown to the court to satisfy them that, with a view 
 to these ends, justice requires that the cause should be further consid- 
 ered. It is granted only where it is apparent that wrong or injustice 
 has been done in the trial or by the verdict, and a probability that jus- 
 tice will be done on another trial.' The court, tlierefore,.will not grant 
 the motion in a doubtful case, or where the cause of complaint was the 
 result of the want of diligence on the part of the party making it, or on 
 mere technical ground, where substantial justice has been done. When 
 it is on the ground of misbehavior in the jury, it should be such as 
 would be evidence of bad intention, or conduct injurious or danger- 
 ous to be tolerated in the administration of justice. As a general re- 
 sult of the subject, it may be said that whenever injustice has been 
 done, without the default of the party complaining, and it is manifest 
 that such is the case, a new trial will be granted. The granting of a 
 new trial is frequently denominated, and equivalent to, an order for a 
 venire de novo. 
 
 § 46. 4. An arrest of judgment is where, after a verdict in favor 
 of a party, there is discovered in the record (pleadings or proceedings) 
 such substantial defect that the court cannot render a judgment in favor 
 of the party, or it would be such error as would be sufficient to reverse 
 it. The court, therefore, in such a case, when made aware of the de- 
 fect, will not do so nugatory an act as to render a judgment that they 
 know will be reversed, but will arrest the judgment on the verdict. Thus, 
 
 • Code, ? 299. > See the Code, ? 300, 301. 
 
 8 Hinton vs. McNeil, 5 O. K. 509 ; 5 0. E. 245 ; 12 O. K. 151. 
 
CHAP. Til.] TRIAL, VERDICT, AND JUDGilEST. 495 
 
 where the plaintiff has obtained a verdict in his favor, but upon exam- 
 ining his declaration, or petition, it clearly appears that he had no cause 
 of action, the judgment must be arrested. Formerly the practice in the 
 English courts was to arrest on very technical grounds, but, by the 
 statutes oi jeo fails a.TxA. amendments, the motion is confined to substan- 
 tial defects. In this State the most liberal rules as to amendments have 
 always prevailed, frequently by permitting the necessary amendment to 
 be made, and when necessary to the ends of justice, requiring the par- 
 ties to go through a new trial upon the amended case. But this would 
 only be permitted upon such terms as would do the opposite party no 
 injustice, and therefore require the party amending to pay all the costs 
 occasioned by his mistake. Sometimes he would prefer to let the judg- 
 ment be orrested rather than pay such costs, and run the risk in a 
 poor case, to be defeated on the second trial. Under our liberal prac- 
 tice as to amendments, it is but seldom that a judgment is permitted 
 to be arrested, but the difficulty is in some way and upon some terms 
 obviated by amendments. 
 
 § 47. The code, in making these liberal provisions for amendments, 
 permits " the court, before or after judgment, in furtherance of justice, 
 and on such terms as may be proper, to amend any pleading, process, or 
 proceeding, by adding or striking out," . . . . " as to party or plead- 
 ing." Under this provision, the court may at once obviate the arrest of 
 judgment by permitting the necessary amendment to be made forth- 
 with, where " the amendment does not change substantially the claim 
 or defense, by conforming the pleadings or proceedings to the facts 
 proved.^ But where such amendment would require a new trial, or sub- 
 stantially change the rights of the parties, the amendment would only 
 be allowed upon such terras of payment of costs and rehearing as the 
 court would deem to be right and just. If these terms are not sub- 
 mitted to, the judgment of course must be arrested, where such substan- 
 tial objection exists to the recovery. 
 
 § 48. Sometimes a fatal objection is cured by the subsequent pleading 
 of the opposite party, as the matter stated in the plea may cure a de- 
 fect in the declaration, and so may the verdict cure defects in the state- 
 ments of the cause of action. It is not every defect that might be ob- 
 jectionable on demurrer, or a motion to make more certain, that would 
 be fatal on a motion in arrest of judgment, for the verdict cures defects 
 that are not substantial or essential to support the matter in question. 
 For it is a rule that every pleading must set forth substantially correct 
 its title, or ground of action, or defense, or it will be subject to objection 
 by demurrer or motion. But there is a material difference between the 
 want of title or grounds of action or defense, and one merely defectively 
 
 1 Code, 5 187. 
 
496 CIVIL LA W. [book hi. 
 
 stated ; for the former is fatal on motion in arrest, or on error, but the 
 latter is cured by the verdict, for it will be presumed that the matter 
 was substantially proved at the trial, or the verdict would not have 
 been obtained. If, however, the court are aware that it was not so 
 proved, it might be a good ground for a new trial. 
 
 § 49. The judgment may also be arrested on account that the ver- 
 dict itself is defective in a substantial matter. It is essential that the 
 verdict should respond to all the distinct issues, and therefore, where 
 a distinct and special issue is not responded to in the verdict, it will not 
 support a judgment. But a general verdict that is consistent with the 
 finding may be presumed to respond to it; and where there are several 
 counts or causes of action stated in the pleading, and one of them is 
 sufficient to sustain the verdict, the judgment will not be arrested, 
 because the others are substantially defective. 
 
 § 50; 5. A judgment non obstante veredicto is where a party may be 
 entitled to a judgment by the admission or confession of the pleadings, 
 when, on motion, he may have judgment notwithstanding the verdict 
 to the contrary. The code accordingly provides, " where, upon the 
 statement in the pleadings, one party is entitled by law to judgment in 
 his favor, judgment shall be so rendered by the court, though a verdict 
 has been found against such party."' Thus, where the defendant has 
 pleaded, by way of confession and avoidance, an insufficient matter, 
 and the plaintiff, instead of demurring, takes issue upon it, and a ver- 
 dict is obtained in favor of the defendant upon it, as in the cause where 
 the action was confessed by an insufficient avoidance, and the iinding 
 of the verdict of the truth of the matter so pleaded is no answer to the 
 action ; the plaintiff is, therefore, entitled to an interlocutory judgment 
 as upon default, that the plaintiff recover his debt or damages, or the 
 like, and that his damages be assessed. But in such a case, where the 
 court was satisfied that justice required it, the court might, upon terms, 
 give leave to the defendant to plead anew upon terms, and consequently 
 there would be a new trial. 
 
 § 51. 6. A repleader is granted on motion, where, by some error in 
 pleading, the issue is joined on a fact immaterial or insufficient to deter- 
 mine the rights of the parties, §o that the court cannot, from the plead- 
 ings, determine what judgment to render. In such case a repleader 
 may be ordered, and in that case the parties begin again where the 
 fault began, and from thence proceed, de novo, with the pleadings and 
 trial. Such repleaders are but seldom awarded where the error can be 
 corrected by an amendment ; and it is a rule that it is never granted in 
 favor of the party who committed the first fault, nor in any case where 
 complete justice can be in any other manner obtained. 
 
 > Code, ^ 384. 
 
CHAP. Yii] TRIAL, VERDICT, AND JUDGMENT. 497 
 
 § 52. The judgment of the court is the next subject of consideration 
 in the regular course of practice, when these incidental matters are dis- 
 posed of. It is the decision or sentence of the court, being a competent 
 judicial tribunal, as the result of the proceedings in an action between 
 the parties, for the redress of an injury. It is a result as a logical con- 
 clusion from the premises. When the matter in controversy between 
 the parties has been stated, and the facts of the case settled, the judg- 
 ment then necessarily follows, as the law and determination of the case. 
 At common law, the language of the judgment was not that it was 
 ordered and decreed, but "it is therefore considered" that the plaintiff 
 recover his debt, damages, possession, and the like; or that the defend- 
 ant go acquit. But this form and mode of judgment have been, in our 
 present practice under the code, materially changed, as will be presently 
 seen. 
 
 § 53. Before considering judgment in its particulars, it is necessary 
 to notice some incidents that may happen that require a judgment be- 
 fore the case reaches its ordinary routine in practice. The defendant 
 may neglect to plead or answer, or neglect to pursue his defense, and 
 the plaintiff thereby become entitled to judgment by default ; or the 
 plaintiff may become entitled to judgment, upon the defendant's de- 
 murrer being decided against him ; or the defendant may become en- 
 titled to a judgment in an earlier stage of the suit, as upon a demurrer ; 
 or, in consequence of the plaintiff's neglect, he may become nonsuit, 
 or his action be dismissed for the want of due prosecution. In these 
 cases the judgment for the plaintiff was that he recover, etc., and that 
 his damages or debt be assessed, etc. But when for the defendant, 
 it was that he go acquit and recover his costs, etc. This was the 
 simple manner in which the result of a suit and judgment was attained 
 as at common law proceedings. But the code, by abolishing the different 
 forms of action, and uniting in the same action a number of different 
 causes of action or grounds of defense, whether they were such as were 
 known to be legal or equitable, or both, and then complicating it by 
 counter-claims that may be claims at law or in equity, or both, the 
 matter of rendering judgment has become more complicated, and the 
 language of the judgment changed to that of adjudge, order and 
 decree, etc. 
 
 § 54. Judgments are thus taken at various stages of the ordinary pro- 
 ceedings in the action, as on default. Or on demurrer, or on admission 
 or confession entered on the record as well as on the verdict after a 
 trial. But frequently judgments are entered up by the agreement of the 
 parties as to the amount, or by an "agreed case" in which the facts are 
 admitted, and submit to the court the law of the case, and judgment to 
 be entered accordingly. Judgments by confession are usually entered 
 upon what are termed cognovit actionem; or a warrant of attorney 
 
 32 
 
498 CIVIL LA W. [book hi. 
 
 authorizing it to be done. In all these cases of amicable actions and 
 judgments there must be the necessary papers filed by which the final 
 record is to be made up, or otherwise there would be no foundation for 
 the judgment to rest upon. There must be in these papers something 
 to show that the defendant waives process or submits to the jurisdiction 
 of the court ; also such pleadings as will show the plaintiff's cause of 
 action, or the nature of his claim, and then an agreement as to the 
 amount of the judgment, or such agreement as to the facts of'the case, 
 upon which the court can render its judgment in the case. 
 
 § 55. These judgments may be either interlocutory or final. The first 
 are such as are given in the progress of the case before the final judg- 
 ment when the case is finally disposed of,'as judgment on demurrer of 
 respondeat ouster and the like; or that the plaintifi' recover, and that 
 his damages be assessed, or the like orders of the court. 
 
 § 56. Final judgments are those entered at the conclusion of the case, 
 when all the preliminary matters are disposed of — after verdict when 
 necessary and damages assessed. These judgments are generally that 
 the plaintiff recover his claim, or that the defendant go hence without 
 day, and also a judgment for the payment of costs, which usually follows 
 the judgment on the merits. 
 
 § 57. In order to sustain the validity of the judgment, there must be 
 a regular continuance of the case from term to term until finally deter- 
 mined ; for if a term passes by without a continuance, the defendant is 
 said to be out of court and the case at an end. This is generally guarded 
 against by a special entry of a continuance in the case ; or by an entry 
 of a general continuance at the end of the term of all cases not otherwise 
 disposed of. These entries of the proceedings and judgment of the 
 court are made upon its journal by the clerk as they occur, and are 
 afterward by the clerk regularly recorded, together with the other pro- 
 ceedings of the case-p-the praecipes, writs, pleadings, and whatever con- 
 stitute a part of the case, in their regular order, as a full history of the 
 case in the "final record." These entries and record are the only ad- 
 missible evidence of the judgment of the court in any given case. 
 
 § 58. This is the common law view of proceedings in relation to judg- 
 ments as practiced here before the code, which has to a great extent 
 varied the practice in this respect, and it is necessary that the change 
 should now be seen. The code provides that "judgment may be given, 
 for or against one or more of several plaintiffs, and for or against one or 
 more of several defendants ; It may determine the ultimate rights of the 
 parties on either side, as between themselves, and it may grant to the 
 defendant any aflirmative relief to which he may be entitled. In an 
 action against several defendants, the court may, in its discretion, render 
 judgment against one or more of them, leaving the action to proceed 
 against the others whenever a several judgment may be proper. The 
 
CHAP, vii.] TRIAL, VERDICT, AND J DDOMEiVT. 499 
 
 court may also dismiss the petition with costs iu favor of one or more 
 defendants, in case of unreasonable neglect, on the part of the plaintiff, 
 to serve the summons on other defendants, or to proceed in the cause 
 against the defendant served.'" 
 
 §69. At common law the plaintiff must, at all times when properly 
 called, answer, until after the verdict is rendered, or the court would 
 order him to become nonsuit. When, therefore, the jury returned into 
 court ready to render a verdict, the plaintiff, when anticipating an ad- 
 verse judgment, purposely kept away, so that when called to hear the 
 verdict he did not answer, and consequently a judgment of nonsuit was 
 rendered against him ; but as this was not on the merits, it preserved 
 his right of action for another suit upon it. A judgment of nonsuit is 
 no bar to a new action. This is materially changed by the code, which 
 does not recognize a nonsuit, but in certain instances authorizes the 
 action to be dismissed without prejudice to a future action which might 
 be done : 1, by the plaintiff before the final submission of the case to 
 the jury or the court ; 2, by the court : — (1) where the plaintiff fails to 
 appear on the trial ; (2) for the want of necessary parties ; (3) on the 
 application of some of the defendants, where there are others whom the 
 plaintiff fails to prosecute with diligence ; (4) for disobedience of an 
 order concerning the proceedings in the action. In all other cases, upon 
 the trial of the action, the decision must be upon the merits.' 
 
 § 60. It further provides that in any case where a set-off or counter- 
 claim has been presented, the defendant shall have the right of proceed- 
 ing to the trial of his claim, although the plaintiff may have dismissed 
 his action, or failed to appear.' And also provides for the judgment or 
 decree in the foreclosure of a mortgage, and its sale upon such order of 
 the court ; and the proceedings upon a judgment for a conveyance, or 
 release, or acquittance ; and that such judgments should have the same 
 operation and effect as if the conveyance, release, or acquittance had 
 been executed.* 
 
 § 61. These provisions of the code in effect render the judgment of 
 the court a decree, conferring the same relief that a party might have 
 obtained in chancery,, if the case were pending there, provided that 
 mode of relief be appropriate to the facts of the case.* But where the 
 facts of the case, under the old practice, conferred no equitable jurisdic- 
 tion, the form of relief remains the same as it formerly was, by judg- 
 ment at law. And although at common law the plaintiff in actions 
 upon contracts must recover against all of the defendants or none, the 
 code enables the court to mould their judgment to suit the justice of the 
 case, and render their judgment in favor of some and against others, 
 
 I Code, ? 371. ' Code, ? 372. a Code, ? 373. 
 
 * Ibid. 2 374, 375. ' Kloune iw. Bradstreot, 7 0. S. R. 322. 
 
500 CIVIL LAW. [book in. 
 
 and so with the plaintiffs. The true criterion seems to be, whether a 
 separate action might have been maintained for or against either ; if it 
 could, a several or separate judgment may be had.' 
 
 § 62. This singular assimilating and mixing up judgments at law and 
 decrees in chancery became essentially necessary upon abolishing the 
 distinction, as the code has done, between actions at law and suits in 
 equity, and permitting both or either to be united in the prosecution or 
 defense of any action, — in many instances without distinction whether 
 the action be in contract or in tort. This is the great objection to this 
 undistinguishable union of law matters and matters only known in 
 equity, and permitting them to be so mixed, that sometimes it is almost 
 impossible to tell which is which. If actions at law and cases in equity 
 were kept distinct, the provisions of the code as to judgments and decrees, 
 as applied to cases in equity, are all well enough ; and the provisions 
 as to entering several judgments, either for or against several plaintiffs 
 or defendants, whether in contract or in tort, as the justice of the case 
 might require, might be wise and judicious in cases at law. But the 
 experience of centuries shows that what is known as positive law, and 
 what only exists in equity, should be kept separate and distinct in 
 actions at law and suits in equity, or the advantages derived by their 
 known distinction, and what the experience and mental labor of ages 
 have established, are entirely, or soon will be, lost. 
 
 § 63. As an incident to the judgment, the costs in a case is a matter 
 of considerable importance to the parties. The costs in a case means 
 the taxable fees paid, or to be paid, in the progress of the case, and not 
 the expenses of the parties in other respects, as the payment of counsel 
 and the like. In the practice before the code, in cases at law, the rule 
 was that costs followed the judgment, and in each case the entry was : 
 " Thereupon the court considers that the said A B recover the said sum 
 of , his damages aforesaid assessed, and his costs herein expended, 
 taxed at dollars," etc. And afterward the costs were taxed up by 
 
 the clerk as a ministerial act, from which there was, in case of dissatisfac- 
 tion, an appeal to the court. But in cases in equity, the costs were a 
 subject of entire discretion with the court. Sometimes, where the plain- 
 tiff recovered a decree for all he prayed for, yet because there was some- 
 thing which he ought to have done previously, or something which 
 excused the defendant in withholding, the court frequently required the 
 plaintiff to pay all the costs. Sometimes the costs were divided be- 
 tween the parties, and at others they were to follow the recovery, as at 
 law. In each class of cases, there were frequently interlocutory orders 
 
 1 See, also, Cloon vs. City Ins. Co. 1 Hand. E. 32; Lampkin vs. Chisom, 10 
 O. S. K. 450; Downing vs. Munn, 9 Howard's N. Y. E. 204; Warrington vs. 
 Higham, 15 Barb. N. Y. E. 524; Clafflin vs. Butler, 5 Duer's N. Y. E. 327. 
 
CHAP. VIII.] EBROR AND APPELLATE PROCEEDINGS. 501 
 
 or judgQients entered in the progress of the case, that certain costs 
 should be paid by one party or the other, on account of some fault or 
 laches, or the terms upon which amendment is permitted. But such 
 costs were thus finally disposed of, and not permitted to be carried into 
 the linal judgment. 
 
 § 64. But by special provisions of the code, the costs are required to 
 be divided or paid by one or the other of the parties, according to its 
 •particular direction ; as the code, in some instances, authorizes a party 
 either after suit is brought, or before, to offer to the opposite party to 
 confess judgment for a certain sum in satisfaction of his demand, with 
 costs to that time ; and in case such opposing party should refuse to 
 accept such judgment, and should afterward further prosecute his claim 
 and recover no larger amount, he should recover no costs on such sub- 
 sequent proceedings. In many other instances the code provides who 
 should pay the costs upon recovery of judgment; but in almost all 
 cases where the code has not made such positive provision, in conse- 
 quence of the union of law and equity cases in the same action, the 
 subject of costs is left very much as a matter of discretion, to be settled 
 in each particular case as formerly practiced in equity or chancery cases. 
 But still, where there is a case which is purely a case at law (and for 
 this we must resort to the old practice), the court generally permits the 
 costs to follow the judgment, as was formerly done in cases at law. 
 Many of these provisions of the code are just and right, and in many 
 instances are just what the court would have done by a special order ; 
 but, upon the whole, the question of costs is rendered more complicated 
 and difficult to settle, and, by the discretion it gives to the court, it often 
 leaves room for the exercise of unjust partiality. 
 
 CHAPTER Till. 
 
 ERROR AND APPELLATE PROCEEDINGS. 
 
 § 1. When judgment is finally entered up, and all motions and pro- 
 ceedinfs against such result have been exhausted, there may be still 
 some ground of complaint that the case has been erroneously decided, 
 either as to the facts or the law of the case. In all systems of well- 
 regulated jurisprudence there has been provided some means of appeal 
 or review, by which the errors or wrongs complained of in the judgment 
 might be reinvestigated and corrected. In Ohio we have retained for 
 this purpose three of the most simple and efficient methods of reviewing 
 and correcting a judgment, known in the English practice as appellate 
 
502 CIVIL LAW. [book hi. 
 
 proceedings ; and these are — 1, motion to correct or reform a judgment 
 on account of some irregularity or fraud in obtaining the judgment ; 
 or 2, appeal from one court to another of a higher order, in which pro- 
 ceeding the judgment of the inferior court is vacated, and the proceed- 
 ing in the higher court begins de novo upon the issues joined between 
 the parties in the court below, and a new trial had, as though there 
 had been none previous; and 3, proceedings in error, by which the 
 proceedings and judgment are reviewed as they appear in the record, 
 and the judgment affirmed or reversed, as the law of the case would 
 seem to require. 
 
 § 2. According to the common law, there were various means known 
 in practice for the purpose of reviewing, reversing, or setting aside a 
 judgment for errors or irregularity in the obtaining of it. They may be 
 enumerated thus : writ of attaint, writ of deceit, writ of audita querela, 
 writ of false judgment, writ of certiorari, and writ of error. These were 
 appellate proceedings at law; and there were appeals and bills of review 
 (which last was a proceeding very similar to that in error), as known 
 in chancery proceedings. In the English practice these have now be- 
 come nearly all obsolete or abolished, except certiorari and error at law, 
 and appeal and review in chancery or equity proceedings. 
 
 § 3. I. A case of audita querela is sometimes heard of, but is now 
 very much obsolete, and the remedies it afforded are obtained usually 
 upon motion. This writ was allowed as a remedial process upon some 
 equitable grounds not appearing in the record, and where error would 
 not lie, — as some wrongful or fraudulent acts of the opposite party, or 
 some release or discharge given by plaintiff in the judgment. The writ 
 was directed to the court in which the judgment had been recovered, 
 stating that the complaint of the defendant had been heard, axidita que- 
 rela defendeniis, and then stated the matter of complaint, and required 
 the court to call the parties before them, and cause justice to be done in 
 the premises. But now the same thing is usually accomplished by a 
 motion to the court. 
 
 § 4. II. When a motion is to be made in any manner affecting a judg- 
 ment to amend it, avoid it, or reform it, in any manner whatever, it is 
 necessary that the party making the motion should give the opposite 
 party, or his attorney, due notice of the time when, and the grounds 
 upon which the motion is to be made, or such proceeding would itself 
 be erroneous; for it is a general rule that in all cases of a motion 
 affecting the rights of others (yinless strictly an ex-parte matter), the 
 opposite party should have a notice of it and proper time to meet it. 
 
 § 5. III. Certiorari is a writ Issued by a superior court having juris- 
 diction, upon a proper application of the party, directed to the judge or 
 officer of the inferior court, commanding them to certify and return the 
 record and proceedings in a particular case pending before them, to the 
 
CHAP, TiTi.] ERROR AND APPELLATE PROCEEDINGS. 503 
 
 higher court. The object is to review and correct some error com- 
 plained of, in the proceedings or judgment of the court below. The 
 writ is obtained by an allowance by the superior court, or a judge, upon 
 application and showing upon affidavit, or a transcript of the proceed- 
 ings. Although this operates as a writ of error, yet it may be obtained 
 at any stage of the proceedings in the court below, upon showing 
 that it has committed some irregularity or error in its proceedings or 
 judgment.' The great difference between a writ of error and that of 
 certiorari is, that the former issues upon the judgment of a court of re- 
 cord, whose proceedings are in accordance with those of common law, 
 while the latter issues to courts of summary proceedings, as justice of 
 the peace and the like. When there has been some summary proceed- 
 ing' in a court of record outside of a regular suit, as upon a motion to 
 confirm a sale and the like, certiorari was the proper proceeding to take 
 such a case to be examined upon error in the higher court. 
 
 § 6. When the certiorari is returned, with an authenticated transcript, 
 to the higher court, the proceedings upon it there are very much the 
 same as in cases in error, — the plaintiff in certiorari assigns errors in the 
 proceedings in the court below, and the court proceeds to try the errors 
 so assigned very much upon the same principles as in cases in error. 
 From the time that the certiorari is served on the court, or the judge, 
 below, it operates as a supersedeas upon the court, whose duty it is from 
 that time to withhold all further proceedings in the case, and to recall all 
 writs issued in the case, as executions and the like. 
 
 § 7. IV. A writ of error is the great remedial process in appellate 
 proceedings. It is now generally issued out of the supreme or superior 
 court,^ and directed to the judges of the inferior court, requiring them 
 to send up to the higher court the record of the judgment and proceed- 
 ings in the particular case, to be there examined and decided upon 
 as law and justice might require. This proceediog is a new action, 
 and is brought by the person against whom final judgment has been 
 rendered in the court below, whether plaintiff or defendant. It is 
 brought on some alleged error in such judgment and proceeding, 
 and the person who institutes this new action in error is called the 
 
 • "In England the remedy by certiorari is twofold: to remove a case for trial 
 into the court above, or to inquire into the correctness of its orders. We have 
 dropped the first mode, and adopted the last." Per curinm, Walpole vs. Ink, 9 
 0. Pv. 142. 'See also Ewing vs. Hollister, 7 0. E. 2d pt. 138. 
 
 2 In England this writ issues out of chancery, directed to the inferior court, and 
 made returnable to a superior court. This is so there in accordance with the 
 usual practice there of issuing all their original writs out of chancery. This 
 may have been originally in imitation of the Eoman practice of commencing the 
 proceeding before the prsetor, and then sending it to the judices to be deter- 
 mined. In this country all writs are issued by the court in which the case is to 
 be determined. 
 
504 CIVIL LA W. [book in. 
 
 plaintiff in error, and the opposite party the defendant in error. Usually 
 they are the same parties as in the court below, but often reversed. 
 Frequently the case in error is brought by some new person, but at 
 all times he must be one of the parties to the judgment, or personal 
 representative, or privy in estate, or interest, as claimant of the land 
 or property affected by the judgment, or bail, and the like cases of 
 privacy in interest. And, also, cases of deaths or marriages will 
 cause change of parties in this new action as in that of others. 
 
 § 8. There is a species of writs of error issued by the same court that 
 rendered the judgment complained of, and a,re termed writs of error 
 coram nobis. This cannnot be done on account of any supposed 
 error committed by the judges in their decision, and the reversing of it 
 is, therefore, not the reversal of their own judgment, but dependent 
 upon some fact causing error in the proceedings, which, at the time, was 
 not brought in question before them, therefore perhaps unknown to 
 them, as the death of one of the parties at the commencement, or 
 in the progress of the case, before judgment, or the appearance of an in- 
 fant by an attorney instead of a guardian, or the coverture of a party 
 who ought to have joined with her husband, and the like instances, are 
 cases where the court will act to correct an error coram nobis. The 
 writ is always upon a judgment in the same court, and returnable, and 
 to be determined " before us," in the same court where all the proceed- 
 ings have been had. 
 
 § 9. The object of a writ of error, strictly so called, is to correct some 
 error in law, committed by the proceedings or rendition of the judg- 
 ment, apparent in the record, or error in fact in some matter not appa- 
 rent in the record, but essential to the validity of the judgment, as the 
 want of actual service and the appearance of' the party, or an infant ap- 
 pearing by an attorney, or coverture of the party without being properly 
 joined with her husband, or the death of a necessary party before judg- 
 ment. These may be, therefore, in such cases, errors assigned iu law, 
 or errors in fact. 
 
 § 10. A writ of error is a new action, and as such must have the 
 proper parties — plaintiff and defendant, a new process or summons, and 
 pleadings upon it, a bearing and judgment.' The pleadings in error on 
 the part of the plaintiff are the assignment of errors, and prayer that the 
 judgment below be reversed, and that he be restored to all that he has 
 lost thereby. The defendant may plead as in other cases the proper 
 plea in abatement or in bar; as the want of the proper parties, or a re- 
 lease, or statute of limitation, or that there were no error in the judg- 
 ment and proceeding, technically known as the plea of " in nullo est 
 erratum." This last plea raises an issue in law, whether there is any 
 
 1 Taylor vs. Boyd, 3 0. K. 337. 
 
CHAP. Till.] ERROR AND APPELLATE PROCEEDINGS. 505 
 
 error in the judgment (taking the statement of the record just as it is) 
 or not. If there are no errors, it must be af&rmed by a new judgment, 
 that the judgment below be affirmed, and that the plaintiff in error re- 
 cover his costs, etc. But if there be an error found, the court state in 
 what particular the error consists, and for which the judgment is re- 
 versed and held for naught, and the parties are then required to begin 
 again where the error commenced ; or if the error was merely in the 
 judgment itself, and not in the previous proceedings, the court will then 
 proceed to render such judgment in the case as the court below ought 
 to have given. But when the error is in the previous proceedings, the 
 case is usually remanded back to the court below, with an order to pro- 
 ceed to a rehearing of the case, — and sometimes with an order for a re- 
 pleader, or a new trial with a venire de novo, as the justice of the case 
 might require. Sometimes when the court of error have usually jury 
 trials before them, they then frequently retain the case for the new pro- 
 ceedings and trial before themselves. 
 
 § II. Where error in fact is assigned, and the assignment is not true 
 in fact, the defendant should be careful not to plead nulla est erratum, 
 for that, like a demurrer, admits the facts to be as stated, and only raises 
 the question, admitting the facts, whether there is any error or not. As 
 to errors in fact, there are but few that can be assigned or sustain error. 
 They are only such essential facts as are necessary to sustain the judg- 
 ment, and without which the judgment would be void, and are generally 
 such facts as do not appear in the record ; for if the erroneous fact ap- 
 pears in the record, then it is an error in law. Except such essential 
 facts, no error can be assigned successfully except those that appear 
 in the record ; and ordinarily nothing appears in the record but the pro- 
 cess, pleadings, the verdict or the finding of the court, and the judgment. 
 Nothing of the testimony or evidence, or the rulings of the court in re- 
 lation to it. This can only come into the record by bills of exceptions, 
 taken at the time, to the rulings of the court ; as to the admission or 
 rejection of the evidence, or as to any other matter decided by the court 
 in the progress of the case, and which are made a part of the record. 
 This demonstrates the importance of bills of exceptions ; and that they 
 should be drawn up with such care and skill as to answer the purpose 
 intended. When so done, and appearing in the record, and the error of 
 the court below made evident by the exceptions, it may be the subject 
 of an assignment of error, and reversal of the judgment, as any error in 
 any other part of the record. 
 
 § 12. A writ of error is due and grantable ex dehito justitise, in all 
 civil cases where an error exists. The mode of obtaining it is different in 
 the different courts, dependent upon the statute regulating it and the 
 jurisdiction of the court ; all of which are very different in the different 
 States. In our courts, proceedings in error are obtained in the common 
 
506 CIVIL LAW. [book m. 
 
 pleas, to all the inferior courts, by filing the petition in error with a 
 transcriptof the judgment and proceedings of the court below. But with 
 a view to obtaining proceedings in error in the supreme court, it is 
 necessary to obtain the allowance of it by that court, or by one of the 
 judges in vacation ; and at their discretion the error may be allowed 
 and made returnable to the supreme court or to the district court, when 
 it is from the common pleas or an inferior court. But no such proceed- 
 ing in error is a supersedeas until bail is given as required by statute. 
 
 § 13. Proceeding in error is not to be had until final judgment is en- 
 tered up in the court below. For it may be that that court may, on or 
 before their final judgment, correct the error complained of themselves. 
 Nor is it every error committed in the progress of the case that will 
 support proceedings in error, for many errors are cured either by amend- 
 ments, or waived by further proceedings, or by the verdict. And it is 
 a rule also that a judgment will not be reversed where it appears that 
 the plaintiff in error has not been injured by the error, or where sub- 
 stantial justice has been done. 
 
 § 14. Appeals, in England, in civil cases, were only known in chancery 
 cases or cases in equity. According to the usual acceptation of the 
 term, it means the taking up the case from one court to another, to be 
 again tried or heard npon its merits. In Ohio, both before and since 
 the code, there were appeals allowed both in cases at law and in 
 equity; at the same time we had writs of error and certiorari, bills of 
 review as well as appeals, each having its appropriate place, and for an 
 appropriate purpose. In the New York code, all proceedings in error 
 and review are had under the appellation of appeal, and this, as in many 
 other instances of that code, is confounding well-known terms, and sub- 
 stituting one term for another. According to our practice, when appeals 
 are allowed, the party appealing gives notice of the appeal, and bail to 
 pay the judgment that may be rendered against him in the appellate 
 court. The case was then, upon perfecting the appeal, taken up into 
 the appellate court, and there tried upon the issues in the case, without 
 any reference to the former trial, or any error therein committed. But 
 proceedings in error, or in review, are matters of entirely different char- 
 acter, though they partake of appellate jurisdiction. 
 
 § 15. V. Error and appellate proceedings under the code. The code 
 materially affects and changes proceedings in error. It abolishes writs 
 of error and certiorari, and discards proceedings by audita querela and 
 error in fact and coram nobis, and attempts to accomplish the same by 
 petitions in error, and motions to correct and modify judgments. But 
 appeal has always been a favorite proceeding with the people of Ohio, 
 and notwithstanding it is excluded from the code, it is retained in the 
 statutes, and now in full operation. This subject will therefore be 
 pursued under the following heads :—l, petitions in error; 2, motions to 
 coiTect or modify judgments ; and 3, appeals. 
 
CHAP. VIII.] EREOR AND APPELLATE PROCEEDINGS. 507 
 
 §16. Petition in error is a mode devised by the code for the pur- 
 pose of reviewing, affirming, or reversing the final judgments or orders 
 of all inferior courts in the superior courts, and intended to supersede 
 writs of error, certiorari, and bills of review. It is a proceeding that 
 may be instituted in the court of common pleas, to review any final 
 order or judgment of any inferior judicial courts or tribunals of the 
 county, — as the probate court, justices of the peace, commissioners of 
 the county, and the like, — without regard to whether they be courts 
 of record or not, or whether the former remedy was a writ of error or 
 certiorari. The proceedings commenced by filing in the superior court 
 a " petition in error," setting forth the error complained of in the judg- 
 ment and proceedings in the inferior court, and filing with it a tran- 
 script of the proceedings containing the final judgment or order sought 
 to be reversed, vacated, or modified.' 
 
 §17. Upon filing the petition or transcript in the superior court, a 
 summons shall issue and be served, or publication made, as in the com- 
 mencement of an action. The summons notifies the adverse party of 
 the filing of the petition, and requires him to answer it in a limited 
 time. All questions as to who must or may be parties, what plead- 
 ings may be had, and as to the mode of proceedings and the judgment 
 to be finally rendered in the case, are governed, it seems, pretty much 
 by the rules as those of error at common law and reviews in chancery. 
 
 § 18. Proceedings may be commenced by petition in error at any 
 time in the court of common pleas or the district court upon any judg- 
 ment rendered in the courts, respectively, inferior to them, at the pleas- 
 ure of the plaintiff in error, without any allowance by a court or judge. 
 But it is otherwise in the supreme court. There it is necessary to ob- 
 tain the leave of the court, or a judge thereof, to file such petition in 
 error, upon notice to the adverse party of the time and place when such 
 leave will be asked. But before such proceedings in error will be a 
 supersedeas to the judgment, or stay execution thereon, the clerk of the 
 court that rendered such judgment or final order shall take a written 
 security from the plaintiff in error to the adverse party, with one or 
 more sufficient sureties, as directed by the code, which must be approved 
 by the court in which such judgment was rendered, or the clerk thereof, 
 who shall indorse such approval upon the undertaking, and file the 
 same for the defendant in error. 
 
 § 19. When such security is given for the stay of proceedings, the de- 
 fendant is authorized, notwithstanding, in actions arising on contracts, 
 to give adequate security to make restitution in case the judgment is 
 reversed or modified, and obtain leave of the court below to enforce the 
 judgment. The code limits the commencement of such proceedings in 
 error to within three years after the rendition of the judgment, except • 
 
 » Code, § 511-517. 
 
508 CIVIL LA W. [book hi. 
 
 as to infants, married women, persons of unsound mind, or imprisoned, 
 — then within three years exclusive of time of such disability.' 
 
 § 20. Such proceedings to reverse a judgment rendered or final order 
 made by a justice of the peace may be brought in the court of common 
 pleas, and the clerk must take security from plaintiff in error before any 
 proceedings can be had. If a judgment of a justice of the peace, taken 
 on error to the common pleas, be affirmed, the court shall render judg- 
 ment against the plaintiff in error for cost, and award execution therefor, 
 and order the clerk to certify the decision to the justice, that the judg- 
 ment so affirmed may be enforced, as if the proceedings in error had 
 not been taken ; or the court may award execution upon the judgment 
 of the justice, as if it had been rendered in the common pleas. But 
 when the judgment of the justice shall be reversed or set aside, there 
 shall be a judgment of reversal, and for costs that have accrued up to 
 that time, in favor of the plaintiff in error, and execution therefor; and 
 the cause shall be retained by the court for trial and final judgment, as 
 in cases of appeal.^ 
 
 § 21. As to the final proceedings in error, the code contains the follow- 
 ing provisions: "When a judgment or final order shall be reversed, 
 either in whole or in part, in the court of common pleas, the district 
 court, or the supreme court, the court reversing the same shall proceed 
 to render such judgment as the court- below should have rendered, or 
 remand the cause to the court below for such judgment ; and the court 
 reversing such judgment or final order shall not issue execution in 
 causes that are removed before them on error, on which they pro- 
 nounce judgment as aforesaid, but shall send a special mandate to the 
 court below, as the case may require, to award execution thereupon ; 
 and such court to which such special mandate is sent shall proceed in 
 such cases in the same manner as if such judgment or final order had 
 been rendered therein ; and on motion, and good cause shown, it may 
 suspend any execution made returnable before it by order of the court 
 of common pleas, the district court, or supreme court, in the same man- 
 ner as if such execution had been issued from its own court; but such 
 power shall not extend further than to stay proceedings until the 
 matter can be further heard by the court of common pleas, the district 
 court, or supreme court, as the case may be ; but this shall not apply to 
 judgments of justices of the peace.'"* ... "When a judgment or final 
 order is reversed, the plaintiff in error shall recover his costs, and when 
 reversed in part and affirmed in part, costs shall be equally divided 
 between the pqj-ties."* 
 
 § 22. 2. The code prescribes "proceedings to reverse, vacate, or 
 modify judgments and orders in the courts in which they are ren- 
 dered." This is intended to supersede what was accomplished under 
 
 » Code, § 522, 523. = Code, § 524, 531, 532. a Codo, § 526. * Code, § 527. 
 
CHAP, viii.] EEBOR AND APPELLATE PROCEEDINGS. 509 
 
 the previous practice by motions, audita querela, and writs of error in 
 fact; and, at the same time, it discards the well-known term of inter- 
 locutory judgments and decrees, and substitutes for it, as to all orders 
 and judgments previous to the final judgment, the word "order,'" as 
 comprehending the whole. It classifies the cases wherein this kind of 
 proceedings may be had into nine classes, and are generally those errors 
 which were at common law corrected upon motions and error in fact. 
 It provides that, in some of the cases, the proceedings shall be on 
 motion and notice to adverse party; and in others that it shall be done 
 "by petition verified by aBidavits setting forth the judgment or order, 
 the grounds to vacate or modify it, and the defense to the action, if the 
 party applying was defendant.'" 
 
 § 23. The code, in these proceedings, directs the course and mode of 
 proceedings, and provides that the party seeking it "may obtain an in- 
 junction suspending proceedings on the whole or part thereof, which 
 injunction may be granted by the court or any judge thereof, upon its 
 being rendered probable, by affidavit or by exhibition of the record, that 
 the party is entitled to have such judgment or order vacated or modi- 
 fied." And prescribes limitations as to when such proceedings may be 
 commenced.^ 
 
 § 24. 3. Appeals are allowed by statute, though they are hardly 
 alluded to in the code. This proceeding has ever been cherished by 
 the people of Ohio as a means of securing another trial when the for- 
 mer one has gone off unfortunately, or they have been taken by sur- 
 prise, and therefore hope that another trial will produce them a better 
 result. Before the code, appeals were allowed in the same manner, 
 both in cases at law and in equity, but then cases at law and those in 
 equity were kept separate as distinct forms of actions. But now, under 
 the code, these different forms of action may be united and joined in the 
 same suit, without regard whether the several causes of action are at 
 law or in equity, or both. The district court is the next appellate court 
 above the court of common pleas, and has none of the necessary 
 machinery for a trial by a jury, and is limited to questions of law, and 
 principally in reviewing cases in error. Cases are appealed from the 
 common pleas to the district court, " in which the parties have not the 
 right, by virtue of the laws of this State, to demand a trial by jury." 
 But in case where there is such a right to a trial by jury, which could 
 not be had in the district court, the law provides that, instead of an 
 appeal, the case shall be set down for a second trial in the same court, 
 upon the party desiring it giviiig security to pay the judgment that 
 may be rendered against him upon such second trial.' 
 
 1 Code, ? 534-536. ' Code, g 537-542. 
 
 8 See the statutes, Act of April 12, 1858, 55 O. Laws, 82 ; Act of March 31, 
 1859, 56 O. Laws, 93 ; Act of March 23, 1852, 50 0. Laws, 93. 
 
510 CIVIL LAW. [book hi. 
 
 CHAPTER IX. 
 
 EXECUTION AND ITS INCIDENTS. 
 
 § 1. If the judgment remains uninterrupted by any of the proceedings 
 referred to, for the purpose of reversing or modifying it, and if the same 
 is not forthwith satisfied, the party in whose favor the judgment 
 was rendered is entitled to process to enforce the performance of the 
 judgment, which is usually denominated execution.' These executions 
 are of various kinds, adapted to carry out and enforce the performance 
 and satisfaction of the judgment. After the rendition of the judgment, 
 the issuing of the execution is generally a ministerial act, performed by 
 the clerk of the court at the instance tSf the party entitled to it. But 
 such execution must be in exact conformity with the terms of the judg- 
 . ment, for its sole object is to carry out and obtain the fruit of the judg- 
 ment. These executions, in reference to the end they are intended 
 to accomplish, may be divided into two classes — 1, those for the re- 
 covery of money ordered to be paid by the judgment, — and these are the 
 most usual kind ; and 2, those which are for the recovery of specific 
 property, or to enforce the performance of some specific act, decreed by 
 the judgment of the court. 
 
 § 2. The first kind of execution usually commands the officer to whom 
 it is directed to levy and make of the goods and chattels of the defend- 
 ant a certain amount of money, recovered by the plaintiff against the 
 defendant by the judgment of the court, for his debt, or damages and 
 costs ; and for the want of such goods and chattels, then of his lands 
 and tenements, for the purpose of satisfying the judgment, and to make 
 return thereof to the court within a limited time. Such a writ of ex- 
 ecution is usually, in the language of the courts, called a fieri facias et 
 leuare facias, or contracted into fi. fa. et le. fa. 
 
 § 3. Or it may be an execution to take the body of the defendant into 
 custody, in default of the payment of the money, and then he is detained 
 in the jail of the county until the claim is satisfied, or he be otherwise 
 discharged by process of law. This writ is called capias ad satisfa- 
 ciendum, and is not issued except upon special application, showing by 
 
 ' Process are usually designated as mesne ani final process. Mesne process are 
 such writs as are usually issued to produce the appearance of the party in court 
 to answer, as summons, capias, and the like. Pinal process are such writs as are 
 issued to enforce the performance of the judgment, and are usually called execu- 
 tions. 
 
CHAP. IX.] EXECUTION AND ITS INCIDENTS. 511 
 
 affidavit of the party, or his agent, the existence of some one of the 
 grounds stated in the law, founded upon some fraud or misconduct of 
 the defendant, justifying such proceeding against the liberty of the per- 
 son.^ They are only used in extraordinary cases, and in this country 
 but seldom brought into use. They are not looked upon with favor, and 
 are considered to be the exercise of extraordinary powers, so that if the 
 person of the defendant is once taken into custody, the judgment is 
 satisfied, unless he is out by an escape, without the fault of either the 
 officer or the plaintiff. A voluntary escape would be fatal to any fur- 
 ther process against him. 
 
 § 4. The second kind of executions are those issued for the purpose 
 of taking and returning some specifie property, as is sometimes done in 
 replevin or detinue, or as may be required in cases in equity; or those 
 issued for the purffose of putting the plaintiff in possession of some real 
 property, as in cases of ejectment. Since the adoption of the code, the 
 court proceeds, in cases at law and in equity, without distinction ; it 
 frequently becomes necessary for the court, in their judgment, to decree 
 the performance of some specific act, and therefore, in such cases, it is 
 provided that such judgments may be enforced by atlachment, upon mo- 
 tion, or by a rule of the court, after notice thereof on the defendant a 
 reasonable time before the order of attachment is made.^ 
 
 § 5. By our law all the lands and tenements, goods and chattels of 
 the defendant, are subject to the payment of debts, and for that purpose 
 may be taken on execution and sold, except such as are specially ex- 
 empted by law. These exemptions are of certain particular property, 
 designated in the act in favor of persons tvJio have a family, and prin- 
 cipally consisting of their wearing apparel, household furniture, and 
 certain provisions for their support, and also a homestead not exceed- 
 ing five hundred dollars in value. The law makes a liberal and just 
 provision, upon an economical basis, for the support of the family, and 
 saves them from destitution. These exemptive laws usually also save 
 from execution the tools of a mechanic, the implements of fire compa- 
 nies, and the arms of a military man. 
 
 .§6. As to property subject to execution, the code declares that " the 
 lands and tenements of the debtor within the county where the judg- 
 ment is entered shall be bound for the satisfaction thereof, from the first 
 day of the term at which the judgment is rendered ; but judgments by 
 confession, and judgments rendered at the same term at which the action 
 is commenced, shall bind such lands only from the day on which such 
 judgments are rendered. All other lands, as well as goods and chat- 
 tels of the debtor, shall be bound from the time they shall be seized in 
 execution.'" 
 
 1 Sea code, g 479. ' See code, J 487, 488. ' See code, J 421. 
 
612 CIVIL LA W. [book in. 
 
 § 7. " Where two or more writs of execution against the same debtor 
 shall be issued out at the same term in which judgment was rendered, 
 or within ten days thereafter, and where two or more writs of execu- 
 tion against the same debtor shall be delivered to the officer on the same 
 day, no preference shall be given to either of such writs ; but if a suffi- 
 cient sum of money be not made to satisfy all executions, the amount 
 made shall be distributed to the several creditors in proportion to the 
 amount of their respective demands. In all other cases, the writs of 
 execution first delivered to the officer shall be first satisfied." But these 
 provisions are not to affect any preferable lien which one or more of the 
 judgments may have on the land of the judgment debtor. The levy 
 must first be made on the goods and chattels of the debtor; but if none 
 such shall be found, the officer shall indorse on the execution " no 
 goods," and forthwith levy upon the land and tenements which may be 
 liable to satisfy the judgments.^ 
 
 § 8. The code also provides that when a third person shall claim the 
 goods levied upon, the officer having such execution shall forthwith give 
 notice to some justice of the peace, in writing, with the names of the 
 parties and a schedule of the goods claimed, which shall be entered as 
 a suit on his docket, and issue a summons for five disinterested men, 
 having the qualification of electors, to try the question of such claim ; 
 and the justice is authorized to enter judgment for the disposition of 
 the goods levied upon, and for costs, in, accordance with the verdict of 
 the said jury of five men. And if the jury find the property levied upon, 
 or any part of it, to be in the claimant, he will be entitled to judgment 
 for the same, and costs ; and the officer will be justified to return on the 
 execution according to such results. Still, the plaintiff in execution 
 may, by giving an undertaking in writing, with sufficient sureties pay- 
 able to the claimant, to pay all damages sustained by reason of the 
 detention of the property, which writing shall be delivered to the claim- 
 ant for his indemnity, require the officer to proceed as if no such trial 
 of the right of property had taken place ; and the officer shall not be 
 liable to the claimant therefor.''' 
 
 § 9. The claimant is not compelled to take this form of remedy to try 
 his right of property. He may at once commence an action against the 
 officer for taking his property; but if he consents to take the remedy by 
 this form of trial of the right of property, he is bound by it, — at least 
 as far as the officer is concerned, — when it is decided against the claim- 
 ant.' When decided in his favor, and the plaintiff in execution chooses 
 to disregard it, and gives the security to indemnify, he is bound by 
 that mode of redress, and is precluded from suing the officer ; for, having 
 
 1 Code, I 424, 425. ' Code, § 426-428. 
 
 8 See 8 0. E. 369 ; 4 0. S. K. 598 ; 12 O. S. K. 105. 
 
CHAP. IX.] EXECUTION AND ITS INCIDENTS. 513 
 
 submitted to this form of redress, he is bound to take the results as pro- 
 vided by it. When an officer, by virtue of an execution, takes property 
 under it, he is liable to be sued under a claim that the levy was wrong- 
 fully made by the defendant in execution, or by a stranger. But the 
 pleadings in the two eases in defense of the officer must be very differ- 
 ent in the one case from that of the other. In the suit by the defendant 
 in execution, the officer must justify under the authority given ffini by 
 the execution, and show by the circumstances that he was within it. 
 But when such action is brought by a stranger, he cannot plead a justi- 
 fication, but must plead "not guilty," etc., and rely upon being able on 
 the trial to demonstrate that the property taken was not that of the 
 plaintiff, but that of the defendant in execution ; for an execution will 
 only justify the taking of the property of the defendant, and not that 
 of a stranger. 
 
 § 10. When property is thus levied upon, the personal property must 
 be first sold, and the amount made out of it, — if there be a sufficiency, 
 — before the real property can be subjected to sale. But before prop- 
 erty can be sold it must be advertised, as to time and place, and sold 
 at public vendue in the manner the law directs, — the personal property 
 for fifteen days, and real property thirty days before the sale is made. 
 And to complete the sale of real property, the execution and sale must 
 be returned to the court and there examined, and if found to have been in 
 all respects in conformity with law, the sale is to be confirmed by the 
 court, and the officer ordered to make and execute a deed of conveyance 
 to the purchaser in conformity with the sale. A deed, thus executed, 
 will convey all the rights and title of the defendant in execution, but 
 not affect the right and title of others, as for instance, the right of dower 
 in the wife. The general rule as to the validity of these sales is this : 
 the officer is governed by the execution if it comes from a court having 
 a competent jurisdiction. The validity of the sale depends upon the 
 court having had jurisdiction of both the subject-matter and of the par- 
 ties by due process ; and then, were there a judgment, an execution, a 
 sale, and deed of conveyance ? If there were, the title conveyed to the 
 purchaser is as good as that which was in the defendant in execution, 
 though there may be errors in the judgment which may thereafter 
 reverse it; or the officer neglects some portion of his duty. The 
 essential requisites are the proper jurisdiction of the court, the judgment, 
 execution, and the sale and conveyance. If the proceedings lack any of 
 these essential qualities, it may be without authority and wholly void, 
 and no transfer of title. The distinction is between those acts which 
 are essential to the validity of the transaction, and those that are merely 
 directory. For any neglect in the performance of the latter, the officer 
 who neglects is alone responsible ; but such neglect may be shown to 
 
 33 
 
514 CIVIL LAW. [book ui., 
 
 the court for the purpose of setting aside the sale on the return, to 
 prevent the confirmation. 
 
 § 11. The laws of Ohio give many immunities, as protection to their 
 titles, to the owners of land. No lands or tenements can be sold on 
 execution, in ordinary cases, until after the officers shall have had it 
 appraised by three disinterested freeholders of the county, upon oath and 
 view (^ the premises, which inquest is to be returned to court ; and such 
 real property cannot be sold under the execution, until it brings at pub- 
 lic auction at least two-thirds of such appraisement. The courts aro 
 required, before confirming sales of such real property, to examine and 
 see, as far as they can, that the sale was had with fairness and in accord- 
 ance with law. And when a person has purchased landed property at 
 such sale in good faith, the reversal of the judgment upon which the 
 execution issued, after the sale, will not affect the sale for any error ia 
 the judgment, except for one of those essential requisites, without which 
 the judgment would be void, as has been stated.' 
 
 § 12. The judgment creditor has a lien upon the lands and tenements 
 of his judgment debtor in the county where the judgment was rendered, 
 which may thereafter be taken in execution to satisfy the judgment, 
 after the personal property is first exhausted, as has been stated ; but 
 such lien is lost, so far as it is a prejudice to any other bona fide judg- 
 ment creditor, unless execution be taken out upon the judgment, and 
 levied before the expiration of one year next after its rendition. 
 
 PROCEEDINGS IN AID OF EXECUTION. 
 
 § 13. Under the common law practice frequent resorts were had to 
 courts of equity for aid in carrying out the object of an execution, and 
 obtaining a satisfaction of the judgment. This was done by subjecting 
 equities, and trusts, and choses in action to the satisfaction of the judg- 
 ment, and removing fraudulent incumbrances from the way of the due 
 progress of the execution. Such aids of the court of equity were effi- 
 cient and satisfactory in producing the desired results. The code having 
 abolished chancery or equity proceedings, as previously known, has en- 
 deavored to accomplish the same object by proceedings and machinery 
 of its own. It declares that when a judgment debtor has not personal 
 or real property subject to levy on execution, sufficient for its satisfac- 
 tion, any equitable interest which he may have, in the various mauners 
 therein pointed out, shall be subjected to the payment of such judgment, 
 by action or other pi'oceedings prescribed by the code.^ 
 
 § 14. The code authorizes proceedings in aid of execution in two very 
 different modes : the 1st, by action, commenced of course by petition 
 
 > Code, I 444-446. ' Code, J 458-470. 
 
CHAP. IX.] EXECUTION AND ITS INCIDENTS. 515 
 
 f 
 and process, as in any other action; and the 2d, by summary proceeding's 
 before the court or a judge, upon motion, notice, and order for the exam- 
 ination of the judgment debtor, and to subject his equities and claims 
 to the satisfaction of the judgment. But in either of these proceedings 
 those great principles previously established in chancery and equity are 
 still observed, — that is, that these proceedings arc only to be sustained 
 when it appears that the judgment debtor has not sufficient property, 
 subject to execution, to satisfy the judgment, and that there are difficul- 
 ties in the way of obtaining such satisfaction by the ordinary process 
 of law ; and, also, that in such extraordinary proceedings care is taken 
 to protect the rights and interests of innocent persons, and those who 
 have acted in good faith. 
 
 § 15. In either mode of proceeding, it is necessary that the creditor 
 should first have obtained his judgment, and be able to show, by actual 
 execution or otherwise, that satisfaction cannot be realized by means of 
 ordinary proceedings by execution.' In case the proceedings are by 
 suit or action, it is subject to the same rules, as to parties and plead- 
 ings, as in other actions where questions in equity are concerned. Such 
 claims cannot be united or joined in the same suit with the original 
 action against the debtor. There must be separate suits ; and the one 
 after the recovery in the other. 
 
 § 16. In summary proceedings, where there is an execution iu the 
 hands of an officer, and there are difficulties in the way of finding suf- 
 ficieitt property to satisfy it, the judgment creditor is entitled to an order 
 from the probate judge, or the judge of the court of common pleas of 
 the county to which the execution was issued, requiring the debtor to 
 appear and answer concerning his property, before such judge, or a 
 referee appointed by hira^ at a time and place specified, within the 
 county. And when the court of common pleas, or either of the said 
 judges, become satisfied, upon proof, by affidavit or otherwise, that the 
 debtor has property which he unjustly refuses to apply toward the sat- 
 isfaction of the judgment, he may be, by a like order, required to answer 
 concerning the same ; and thereupon proceedings may be had for the 
 application of such property. When in these proceedings it is made to 
 appear to the satisfaction of the judge that there is danger of the debtor 
 leaving the State or concealing himself to avoid examination, a warrant 
 may issue to the sheriff to arrest him and bring him before such judge. 
 Upon his appearance before the judge, a trial is to be had, and the defend- 
 ant examined under oath, and the examination of witnesses on either side ; 
 and if it shall appear that there is danger of the debtor leaving the State, 
 and that he has property which he unjustly refuses to apply, he may be 
 required to give such bail as the judge may prescribe to attend from 
 time to time before the judge or referee, as shall be directed.'' 
 
 1 Seney's Code, 368. a Code, J 459-461. 
 
516 CIVIL LA W. [book hi. 
 
 § n. Similar proceedings are authorized against other persons when 
 the judge is satisfied that any person or corporation has property of the 
 debtor, or is indebted to him, and may be required to answer in rela- 
 tion to the same. The code provides for the mode of proceeding on the 
 hearing of the case, and the enforcing of the attendance of parties and 
 witnesses. The parties and witnesses who are examined, are to be so 
 examined under oath, and no person shall be excused from answering 
 on the ground that the answer will tend to convict hira of fraud, but his 
 answer shall not be used as evidence against him in a prosecution for 
 such fraud. The judge may appoint a receiver with like powers as one 
 appointed by court, and order the application of any property, equitable 
 interest, or claims of the debtor to be applied to the satisfaction of the 
 execution or judgment. " The judge shall reduce all his orders to writ- 
 ing, whichi together with a minute of bis proceedings, signed by him- 
 self, shall be filed with the clerk of the court of the county in which the 
 judgment is rendered.'" 
 
 § 18. The code contains, also, this extraordinary provision, that 
 " after the issuing of execution against property, any person indebted 
 to the judgment debtor may pay to the sheriff the amount of his debt, 
 or so much thereof as may be necessary to satisfy the execution, and 
 the sheriff's receipt shall be a sufficient discharge for the amount so 
 paid or discharged, to be credited by the judgment creditor on the exe- 
 cution.'" 
 
 § 19. Judgments may become dormant by the death of the necessary 
 party against whom to issue an execution, or by the lapse of time, after 
 which the law does not permit an execution to be issued upon it, with- 
 out its being regularly revived. By our law, when a judgment is ob- 
 tained, it is a lien on the lands and tenements of the judgment debtor 
 in the county ; but it is not so as to personal property, as to which 
 there is no lien until it is actually levied upon by an execution. When 
 either party dies, no execution can thereafter be issued on the judg- 
 ment until it is revived in the name of. the proper representatives 
 of the party. As to the defendant, it may be revived against the proper 
 representatives of the deceased defendant, his heirs and administrators, 
 and the proper execution awarded, as the case may require. A judg- 
 ment, upon which no execution has issued within five years from its 
 rendition ; or if five years shall intervene between the date of the last 
 execution and that of another issued thereon, such judgment becomes 
 dormant;' and so it does when the defendant dies, until it is revived. 
 An execution issued upon a dormant judgment, or against a deceased 
 defendant, is a void execution. The practice in Ohio, previous to the 
 code, was to revive the judgments, in such cases, by a process of scire 
 
 ' Code, I 461-476. = Code, § 463. » Code, J 422. 
 
CHAP. IX.] EXECUTION AND ITS INCIDENTS. 617 
 
 facias, which was not a new action, but, upon due proceedings, pro- 
 duced a new judgment, .which revived the former judgment with all its 
 rights and incidents at the time it became dormant. 
 
 § 20. A judgment upon which an execution is not issued and levied 
 within a year from the date of its rendition, unless delayed by some 
 proceeding of the opposite party, as error, appeal, and the like, loses 
 its lien against the bona fide judgment creditors who make a lien. 
 When property is sold under execution, and there is a conflict of liens, 
 the court will marshal the proceeds, and order the distribution of the 
 proceeds of the sale according to the priority of liens. Upon the death 
 of a judgment debtor, the execution abates; but it is but seldom that the 
 judgment is here revived against the heirs or the administrator, for it is 
 the duty of the latter to proceed to convert the property of the deceased 
 into means to pay debts, according to the law of distribution of dece- 
 dents' estates. First the personal property is sold for the purpose ; and 
 in case that is insufficient to pay all debts, the administrator should next 
 proceed by a petition in the probate court, — to which the heirs and all 
 persons having an interest or lien should be made parties defendant, — for 
 an order to sell the real estate, and first pay the liens, and the residue 
 to be applied to the general assets in the hands of the administrator, 
 to pay debts, and, if insuflScient for the purpose, to make a pro rata divi- 
 dend to all the creditors, except the expenses and a few preferred claims 
 against the estate. Judgments have no liens on the personal property 
 until a levy is made ; and if the execution, after levy, is returned not 
 sold, for want of bidders or any other cause, the levy holds a lien on the 
 property, unless the levy is abandoned, and may be enforced by another 
 writ of execution, commanding the officer to expose the property to sale 
 in order to make the nece.ssaiy amount of money, which writ is called 
 a venditioni exponas. If the defendant dies in the mean time, no new 
 writ can be issued until the judgment is reviewed against the adminis- 
 trator, or his personal representative ; but usually the administrator 
 would, if he could command means to do so, pay off the lien and save 
 the property from the operation of the writ of vendi. What personal 
 property was not so levied upon, previous to the defendant's de- 
 cease, ceased to be his property, and in law becomes instantly the 
 property of him who should be appointed the administrator, and in the 
 mean time the property must be in abeyance. If in such case an exe- 
 cution could issue, the officer could not take the property, for it ceased 
 to be the property of the defendant, unless there had been a previous 
 levy. 
 
 §21. The subject of revivor o^ judgments and actions is one that 
 occupies a considerable space in the law, and demands a further con- 
 sideration of the wtqle subject here. When in the progress of a case 
 before judgment, a necessary party to it dies, it is said that the action 
 
518 CIVIL LAW. . [book 111. 
 
 has abated ; and it is necessary, in case the action survives, that it 
 should be revived before further progress in* the case, either for or 
 against the person as to whom the surviving interest may inure. After 
 judgment, the right to an execution may, in the same manner, abate, 
 and the judgment itself become dormant by the lapse of time. When 
 the action or the judgment became thus fixed, there was a necessity 
 that it should be revived before the ordinary proceedings upon it could 
 progress. At common law the ordinary proceedings to revive was by 
 a writ of scire facias, by which the necessary party was summoned to 
 show cause why the action or judgment should not be revived against 
 him. To this summons he was required to appear and plead, or there 
 would be the proper judgment against him by default. Although the 
 proper pleadings were admitted upon the scire facias, yet nothing could 
 be pleaded that could or should have been pleaded in the original action, 
 — nothing but new matter applicable to the new state of the case. It 
 was not considered as a new action, but a continuance of the former 
 action or judgment. These proceedings were necessary whenever a 
 change took place in the necessary parties, as in case of death, or mar- 
 riage, or an assignment in bankruptcy. If, on the issuing the scire 
 facias, the defendant could not be found, it did not necessarily inter- 
 rupt the progress of the case, for it was an established rule that two 
 scire facias returned nihil, were equivalent to a summons, and pro- 
 ceedings and judgment were had thereon accordingly. 
 
 § 22. As to actions before judgment, some survived the death of the 
 party and were capable of being revived, while others became extinct 
 and so abated that they were utterly incapable of revivor. The rule 
 adopted long since b}' the English courts was this : that actions upon 
 contracts survived both in favor of the plaintiff and against the defend- 
 ant, except marriage contract, or such as depended upon the life of the 
 person, and expired with it. But where the cause of action was a tort, 
 which produced no gain to the party committing it, as in action of slan- 
 der, assault and battery, and the like ; but where the action was for 
 the conversion or carrying away of the plaintiff's goods in bis lifetime, 
 the right of action survived, and might be revived in the name of his 
 personal representatives. In this respect the laws of most of the States 
 are very much like those of England, but little modified by statute, so 
 that generally all actions of tort survive, both for the plaintiff and 
 against the defendant, except those for injuries that are strictly personal, 
 as injuries to the person, his health, or his reputation, and which pro- 
 duce no gain to the party who committed the injury. 
 
 § 23. The code, upon the subjects of the surviving and abatement of 
 the action, and the revivor of actions and judgments, has adopted 
 
 ' 3 Stephens's Com. 654. 
 
CHAP. IX.] EXECUTION AND ITS INCIDENTS. 519 
 
 about twenty sections regulating and controlling the whole subject.' 
 It declares that in addition to the causes of action which survive at 
 common law, those for mesne profits, or for an injury to real or personal 
 estate, or for any deceit or fraud, shall also survive, and the action may 
 be brought, notwithstanding the death of the person entitled or liable 
 to the same. No action shall abate by the death of either or both the 
 parties, except an action for libel, slander, malicious prosecution, assault, 
 or assault and battery, for a nuisance, or against a justice of the peace 
 for misconduct in office, which shall abate by the death of the de- 
 fendant. 
 
 § 24. When there are several plaintiffs or defendants in an action, 
 and one of them dies, or his powers as a personal representative cease, 
 if the right of action survive to or against the remaining parties, the 
 action may proceed, — the death or the cessation of the powers of the 
 party being stated on the record. And when in such case the cause of 
 action does not admit of survivorship, and the court is of the oiiinion 
 that the merits of the controversy can be properly determined and set- 
 tled, it may proceed to try the same as between the remaining parties; 
 but the judgment shall not prejudice any who were not parties at the 
 time of the trial. And in any such case, where a party dies, or his 
 powers as representative cease before judgment, if the right of action 
 survive, it may be revived, and proceed in the name of the representa- 
 tive or successor.'' 
 
 § 25. The revivor shall be by a conditional order of the court, if made 
 in term, or by a judge in vacation, that the action be revived in the 
 name of the representative or successor of the deceased party, and pro- 
 ceed in favor of or against them. The order may be made on motion 
 of the adverse party, or of such representative or successor, suggesting 
 the death or cessation of powers, which, with their names and capa- 
 cities, shall be stated in the order. When the order is made by consent 
 of the parties, the action shall forthwith stand revived ; and if not by 
 consent, the order shall be served in the same manner, and returned in 
 the same time as a summons upon the adverse party; and if sufiScient 
 cause be not shown against the revivor, the action shall stand revived. 
 When the plaintiff shall make an affidavit that the representatives of 
 the defendant, or any of them in whose name the action may be ordered 
 to be revived, are so situated as set forth in the code, as non-residents, 
 etc., so that the order cannot be served, a notice may be published six 
 consecutive weeks, as provided in other like cases, which shall operate 
 as notice served.' 
 
 § 26. When the plaintiff in an action dies, it must be revived in the 
 name of the person to whom the right has passed ; if passed to the per- 
 
 1 Code, 2 398-^417. ^ Code, § 402, 3 Code, J 403-406. 
 
520 CIVIL LA W. [book III. 
 
 sonal representative, it must be ia his name, but when to the heirs or 
 devisees, it may be in their names. Upon the death of a defendant in 
 an action where the right, or any part of it, survives against the per- 
 sonal representative, revivor shall be against him ; and it may be also 
 against the heirs, or devisees, or both, when the right of action, or any 
 part of it, survives against them And in an action to recover real prop- 
 erty only, or which concerns only the right or claim to such property, it 
 may be revived against the heirs or devisees, or both, in the like manner. 
 Such proceedings and order of revivor should be had as soon as practi- 
 cable ; but cannot be maintained after a year after the time of abate- 
 ment, except by consent of the opposite party.' And when not thus 
 daly prosecuted by a revivor, the case may be stricken from the docket, 
 on the motion of the opposite party ; nor shall the trial on the revival 
 be postponed by reason of the revivor, if the action would have stood 
 for trial at the term the revivor was completed.'' 
 
 § 27. When a judgment is recovered against one or more persons, 
 jointly indebted upon contract, promissory note, or other instrument of 
 writing, those who were not originally summoned may be made parties 
 to the judgment by action. And an action may be brought upon any 
 such joint contract against any one or more of such joint makers or 
 obligors, notwithstanding judgment has been or may be obtained in any 
 court in any State of the Union, other than Ohio, against one or more 
 of such obligors ; and the action shall proceed as though no judgment 
 had been obtained against any one of the obligors ; but no such action 
 shall be maintained upon any such obligation against any one against 
 whom an action has been prosecuted to final judgment." 
 
 § 28 Revivor after judgment. After judgment and before satisfaction, 
 if either or both of the parties die, their representatives, real or personal, 
 or both, as the case may require, may be made parties to the same, in 
 the same manner as in proceeding to revive actions before judgment, 
 and such judgment rendered and execution awarded as the case may 
 require.* 
 
 § 29. A dormant judgment may be revived in the same manner as is 
 prescribed for reviving actions before judgment; and when the plain- 
 tiff or his attorney makes an affidavit that the defendant is a non-resi- 
 dent of the State, and that the judgment remains unsatisfied, in whole 
 or in part, and the amount still owing thereon, a notice may be pub- 
 lished for six consecutive weeks, as provided for constructive notice and 
 summons in other cases, giving notice when to appear to show cause 
 why judgment should not be revived against him ; and in case he fails 
 to show cause, the judgment shall stand revived for the amount the 
 court shall find due and unsatisfied upon such judgment. In all cases 
 
 > Code, I 407-411. 2 Code, I 412-414. « Code, I 415. * Code, I 416. 
 
CHAP. X.] EQUITY. 521 
 
 where service may be made by publication, personal service of a copy 
 of the order may be made out of the State.' 
 
 § 30. Such is the machinery that the code has adopted to supersede 
 the process of scire facias in procuring a revivor. Before the code, 
 our mode of proceeding in such cases was by scire facias, in which no 
 serious objection or inconvenience was discovered. " But under the 
 code it may be well questioned if its arrangements 'are not multifarious 
 and cumbersome. 
 
 CHAPTER X. 
 
 EQUITY. 
 
 § 1. Thk adjudication of cases in equity, as contradistinguished from 
 those at law, has appeared inexplicable to minds not familiar with the 
 subject; and some have been led to suppose it to be some rule superior 
 to the resti'aints of law in the administration of justice. The very terms 
 of suits in equity and actions at law, as contrasted to each otlier, tend 
 to confound and mislead, as though the one was administered without 
 equity, and the other was not bound by law or governed by precedent; 
 whereas every illustration or examination of the subject will show that 
 each is equally governed by equity and by established principles, and 
 that neither is the antagonist of the other, but that both mutually assist 
 in the object of their creation, — the attainment of justice and the due 
 administration of the law. 
 
 § 2. Equity is founded in natural justice, honesty, and common sense. 
 It is synonymous with justice, and in this sense it is the soul and foun- 
 dation of every law. Positive laws are made in conformity with it, 
 and construed by it. But the wisdom of legislators, in framing posi- 
 tive laws to answer all the purposes of justice, has ever been found un- 
 equal to the subject, and therefore in all countries those to whom the 
 administration of the laws has been intrusted have been compelled to 
 have recourse to natural principles to assist in the application and con- 
 struction of positive law, and supply its defects. This resort to natural 
 principles has been termed judging according to equity. Hence a dis- 
 tinction has arisen, of necessity in jurisprudence, between positive law 
 and equity, which has been defined by Grotius to be the correction of 
 that wherein the law, by reason of its generality, is deficient.'' 
 
 > Code, g 417. 
 
 2 See Ponb. Equ. B. i. ch. i. g 2, n. (e), and Laussat's Notes. In the Roman 
 law they had their actions in equity. 
 
522 CIVIL LA W. [book hi. 
 
 § 3. Notwithstanding that equity, thus defined, is known to univer- 
 sal jurisprudence, and must, to some extent, be practiced and adminis- 
 tered in every court of judicature, — as we frequently hear it said in our 
 courts of law that the relief was within the equity of the statute, or 
 that the money claimed was ex aequo et bono due the plaintiff, and must 
 therefore recover, — in Continental Europe it is unknown as a separate 
 system, only to be used and applied where the positive law and its appli- 
 cation in practice is inadequate, or too positive, to admit of the relief; 
 but there equity is administered in a less cultivated form, by being con- 
 fided to the same judges and tribunals, and administered by the same 
 system and course of procedure as that of the law. But equity, as 
 known in England and in this country, would be utterly incapable of 
 growing up and existing under the Continental system, in its admira- 
 ble principles and form as now known to us. We are principally 
 indebted for it to the circumstance that in England they had a court of 
 high judicial powers, called the court of chancery, which dealt wholly 
 with cases in equity. 
 
 § 4. "Under the English chancery practice, a system of equity grew 
 up, admirable in itself, and well adapted, if not indispensable in the ad- 
 ministration of justice ; and this system principally owes its existence 
 and perfection to its being so wrought up and perfected by a court 
 which exercised an exclusive jurisdiction over it. This system has been 
 from an early day introduced into the United States, and has received 
 here an additional luster and perfection. In some of the States it was 
 introduced and practiced in a separate court, and in others in the courts 
 of law, but as a separate system and in separate form of action. It has 
 grown in favor until most of the States have it in some form, as a dis- 
 tinct form of jurisprudence. It everywhere became a part of our j.udi-. 
 cial system, and is especially recognized in the Constitution of the 
 United States. But it is now to be feared that, under the operation of 
 the New York and Ohio codes, which combine and confound together 
 in one action and the same proceeding both law and equity, the spe- 
 cial merits of equity, as it has been known, will be lost, and that 
 our judicial system will sink in this respect to what equity is known to 
 be in the courts of Continental Europe. Under the code, the principles 
 of equity and the rules of positive law are frequently so confounded 
 and thrown together that when a case is decided it is difficult to tell 
 whether it was on the principles of law or equity. 
 
 § 5. Equity does not assume to control and direct the law, but only 
 to follow and aid it ; its first principle is, that it only takes jurisdiction 
 of cases where there is not a plain and adequate remedy at law. The 
 reason for this interference is principally the one already suggested, — 
 the imperfection of the law ; but there is another equally cogent. The 
 law necessarily fixes and establishes rules and limits for all legal trans- 
 
CHAP. X.] EQUITY. 523 
 
 actions. These are positive ; and wliat is within them is law, and 
 what is outside is not. Thus, iu the sale of land and the execution of 
 a conveyance, there are many steps in the transaction from its initiation 
 to its conclusion. Though the agreement has been made, the consid- 
 eration money paid, the vendee put into possession, and the deed writ- 
 ten, yet, through some accident, or mistake, or fraud, the deed is found 
 to be imperfect in law. It may have no seal to it, it may have but one 
 witness, or it may not have been acknowledged before the proper officer. 
 Any one of these defects will render the deed as a void conveyance, and 
 the law will not recognize the title as in the least transferred to the 
 purchaser. This is positive law, which must have its boundary; when 
 within it, it is law, and on the outside, it is equity, or nothing. Courts of 
 law deal only with law, and only touch equity incidentally. Equity 
 takes hold of those incidents outside of the law that may give a just 
 claim in equity, though the law could do nothing with it but leave it to 
 equity to mould it into such shape as to promote the ends of justice and 
 prevent an absolute wrong. 
 
 § 6. The course of procedure in cases at law, according to the course 
 of the common law, is admirably adapted to the ordinary and expedi- 
 tious administration of justice, by the aid of a jury, and of redressing 
 every injury by compensation in damages. Equity, on the other hand, 
 is slower, and must take into consideration those circumstances which 
 take a case in equity out of the ordinary course of the law, and see 
 that it does not encroach upon the limits of the law. It is impossible 
 to state a case at law, and another in equity, and in each having nothing 
 but the necessary and essential facts to constitute the case, but that the 
 difference between them will readily strike any one. The one will have 
 the legal facts that bring it within the law, the other those facts which 
 take it out of the law and render it a proper case in equity. 
 
 § 7. Besides, the machinery exercised by courts in equity in enforcing 
 its remedies is so very different from that at law. In the latter case 
 the general course is judgment for damages, and then an execution ; in 
 equity, on the contrary, they have decrees to enforce particular duties 
 or specific performance, or to mould their decrees and process so as to 
 meet the circumstances of every case and adapt them to the great va- 
 riety of complex relations which commerce and civilization have intro- 
 duced in this enlightened age. Every system of jurisprudence and 
 course of procedure must necessarily be imperfect, and unable to meet 
 justice and equity in every given case. Where both equity and law 
 are known and kept distinct, there is a greater chance of obtaining 
 in any case exact justice than by the independent exertion of either 
 system without the aid of the other. This difference in the course of 
 procedure constitutes, as much as in any one particular, the difference 
 between proceedings in equity and in law. 
 
524 CIVIL LAW. [book m. 
 
 § 8. Equity in general, it is said, is auxiliary to proceedings at law, 
 and therefore, as a general rule, it only exercises jurisdiction where 
 there is not a plain, adequate, and complete remedy at law.^ In giving 
 relief, equity, in some cases, follows the law implicitly; in others it 
 assists and advances the remedy ; and in others, again, it restrains the 
 abuse or mitigates its rigor ; but in no case does it contradict or over- 
 turn the ground or the acknowledged principles of the law. 
 
 § 9. The jurisdiction of chancery, or courts of equity, is as clearly 
 defined and bound by its ordinary proceedings and precedents, as that 
 of courts of law. Its principles of right and wrong are not limited by 
 the will or discretion of the chancellor, who has no more right to vary 
 his discretion, change his mode of proceedings, or enlarge his powers 
 than a judge of a court of law. It is the duty of every court of justice, 
 whether of law or equity, to consult the intention and reason of every 
 law ; and in this respect a court of equity is not intrusted with larger 
 powers or more liberal discretion than a court of law. Nor does equity 
 assume the right of controlling the rules of law where it embraces all 
 the circumstances of the case ; but where any particular case involves 
 circumstances to which the framers of the rule do not appear to have 
 adverted, and which, in a court of law, from its established usage and 
 course of proceedings, cannot be available there, courts of equity will 
 interfere for the purpose of giving to such circumstances the effect to 
 which they may be equitably entitled.' 
 
 § 10. Where a particular remedy is given by law, and that remedy 
 is bound and circumscribed by particular rules, courts of equity will not 
 take it up where the law leaves it and extend it further than the law 
 allows, or grant relief against its policy.^ Equity will not, therefore, 
 relieve against the operation of the statute of limitation, statute of 
 frauds, statute against gaming, and the like, however hard they may 
 operate in a court of law. Yet, for the purpose of preventing them 
 .from, being made instruments of fraud or injustice, equity, by varying 
 the remedy or mode of redress, or by compelling him who seeks the aid 
 of equity first to do equity, will often give relief or prevent an injury 
 arising out of the operation of such positive law, when in doing so it 
 does not contravene or overturn its evident policy. 
 
 § 11. The proceedings of a court of equity are wholly civil. The 
 criiiiinal law does not admit of this equitable interference ; for all courts 
 of criminal jurisprudence are bound to administer justice according to 
 the letter of the law, so that no one may suffer more than its strict literal 
 construction will warrant, though he may suffer less. Guided by these 
 principles, the jurisdiction exercised in equity may be considered in 
 some cases as assistant to, in some concurrent with, and in others ex- 
 clusvue of, the jurisdiction exercised in an action at common law. 
 
 ' FQnb. Bqu. B. i. ch. i. § 3. a Wright's K. 65. 
 
CHAP. X.] EQUITY. 525' 
 
 § 12. I. It is asaiatant to the ordinary proceedings at law, where the 
 administration of justice in them is either impeded or liljely to be per- 
 verted by a deficiency of powers. In such cases equity or chancery 
 will lend its aid — 1. To perpetuate testimony when in danger of being 
 lost -before the matter to which it relates can be made the subject of 
 judicial investigation. 2. To compel a discovery of facts by either party 
 to a suit at law, when evidence is improperly withheld, and which a 
 court of law cannot reach by their form of practice. 3. To remove 
 impediments to a fair trial and decision of a question pending at law ; 
 as in case of ejectment, where the title is opposed by an invalid devise 
 or fraudulent conveyance. 4. To secure the subject of litigation until 
 the right is determined, and render the judgment of a court of law 
 effective ; as by providing for the safety of property in dispute pending 
 litigation, by ordering it to be brought into court, or to be collected by 
 a receiver, or by restraining the party in whose possession it is from 
 exercising any power over it, or parting with it, until further order. 
 5. To prevent courts of law being perverted into instruments of injus- 
 tice ; as by counteracting fraudulent judgments, or putting bounds to 
 vexatious and oppressive litigation. 
 
 § 13. II. It exercises a jurisdiction concurrent with courts of law 
 over two classes of subjects. The first is composed of such as have been 
 drawn within the cognizance of equity by some special mode of admin- 
 istering justice, peculiarly applicable to the particular case. Of this 
 nature are — 1, specific performance of agreements ; 2, specific delivery 
 of chattels possessing extrinsic value ; 3, ascertaining of boundaries 
 that have fallen into confusion ; 4, partition; 5, assignment of dower; 
 and 6, bills of peace and interpleaders.^ The second class of subjects 
 embrace those cases in which the mode of proceedings and powers of 
 equity are superior or preferable to the forms of common law. To 
 these advantages may be ascribed the extensive and important jurisdic- 
 tion exercised by chancery under the general description oi frauds, acci- 
 dent, mistake, and account. The superiority of equity in such cases 
 consists in the discovery by the oath of the defendant, the special inves- 
 tigation of complicated facts by reference to a master, and the nature 
 of a decree which is capable of embracing all conflicting interests and 
 doing special justice among the parties. 
 
 § 14. III. Its jurisdiction, exclusive of courts of law, arises from th* 
 establishment of principles, or the possession of powers of a nature pecu- 
 liarly adapted to the subject-matter, — setting up equitable titles against 
 conveyances, equitable mortgages and equities of redemption, the equity 
 of a feme covert to a settlement and to her separate estate, and the pro- 
 tective powers which it exercises in watching over the interest of infants, 
 
 ' Fonb. Bqu. B. i. ch. i. § 3, La^issnt's Notes. 
 
526 CIVIL LAW. [book hi. 
 
 lunatics, etc. The prevention of the exact requirements and rules of 
 law from being made the instrument of injustice, as where a deed fails 
 to be executed in accordance with the exact requirements of the law, 
 and the like. And also those powers exercised by courts of equity as 
 preventive justice, os in those cases where it issues injunctions against 
 threatened or impending injuries, and in the various subjects that are 
 the foundation of bills qitia timet. These subjects are the creatures 
 of chancery jurisdiction, and owe their existence to the principles 
 upon which that court acts, and the manner in which it exercises its 
 powers. 
 
 § 15. The remedial forms of the common law were, in general, only 
 exercised in redressing injuries, and were practically inadequate to the 
 prevention of injuries, or decreeing specific performance of duties ; 
 , equity, in a distinct court, and by a different mode of proceeding, at an 
 early day, and as a matter of necessity as well as choice, assumed to 
 exercise this important branch of jurisprudence, and upon it has built 
 up, in the course of time, this beautiful and beneficent system of reme- 
 dial justice, known as equity or chancery jurisdiction. 
 
 SUBJECT-MATTER OP CHANCERY JURISDICTION". 
 
 § 16. The matters over which a court of chancery will exercise an 
 equitable jurisdiction have been arranged in the following alphabetical 
 order : — I. Accident and mistake ; II. Account ; III. Frauds ; IV. 
 Infants ; V. Specific performance of agreements ; VI. Trusts. 
 
 § 17. I. Accident and mistake. By the former is meant a case dis- 
 tinguished from others of the like nature by unusual circumstances. 
 And (1) equity will relieve against the loss of deeds, bonds, notes,^ or 
 the like, and will set them up, even against sureties, unless they are 
 voluntary, or there be some equitable objection which will induce the 
 court to refuse the relief. (2) So it will ascertain the boundaries or 
 fix the value where land or other property has been intermixed by the 
 unity of the possessions of two or more persons. (3) And will relieve 
 against penalties, forfeitures, and the like, induced by accidents, where 
 the condition upon virhich the forfeiture depends may be performed 
 afterward, or a compensation be rendered for it. But equity, in such 
 cases, will not relieve against stipulated compensation or liquidated 
 darAages, nor forfeiture under a statute, or conditions in lavsr which do 
 not admit of a compensation, or a forfeiture which may be considered 
 a termination of an estate." 
 
 § 18. Mistakes will be relieved against, when evident, in all deeds, 
 contracts, or conveyances founded upon good consideration, and not 
 
 > Fonb. Eq. 35, Laussat's ed. s 3 Blackst. Com. 426, note. 
 
CHAP. X.] EQUITY. 527 
 
 effected by frauds on the part of the complainant ; and in such cases 
 equity will interpose against the interest of intermediate or third per- 
 sons, except to the prejudice of a person having a legal interest founded 
 upon valuable consideration, in good faith and without notice of the 
 complainant's equity. So equity relieves against mistake in the sub- 
 ject-matter of the contract, as in the number of acres conveyed — 
 whether they be more or less than the number agreed upon ; and if the 
 variance be great, the words "more or less" in the deed will not forbid 
 the relief. Where money has been paid or settlement made under 
 clear mistake, ignorance, or misapprehension of the facts, equity will 
 relieve ; but as to ignorance or mistake of the law, the general rule is 
 that every person is bound, at his peril, to know it; and parlies will 
 not be relieved from the consequences of their acts and deeds fairly 
 done on a full knowledge of the facts, though under a mistake of the 
 law, even in equity, — as if two are bound to another, and the obligee 
 releases one, not supposing that he thereby discharges the other ; yet, 
 as ignorantia juris non excusat, he cannot be relieved.' 
 
 § 19. II. Account is a subject over which equity exercises jurisdiction 
 concurrent with courts of law, on the ground that the remedy at law 
 was not so complete, and the mode of proceeding not so well adapted.^ 
 The cases where equity does entertain this jurisdiction are princi- 
 pally (1) where there has been mittual dealings and demands between 
 the parties which are too complicated to be taken by a trial at law. A 
 single matter or payment by way of set-oflf is not a subject of an ac- 
 count ; but there must be a series of transactions on one side, and pay- 
 ments on the other. (2) Accounts against bailiffs, receivers, guardians, 
 administrators, etc., constitute extensive subjects of equity jurisdiction. 
 (3) And so also transactions between copartners, joint-tenants, etc' 
 
 § 20. III. Fraud is a most fruitful source of equity jurisdiction, and 
 demand upon its interference. It will exercise its powers to prevent 
 all deceitful practices and artful devices, contrary to the rules of com- 
 mon honesty; or to remedy iheir consequences when they have been 
 effected. And for this purpose it will assume jurisdiction (1) over trus- 
 tees, attorneys, guardians, or other persons standing in a fiduciary rela- 
 tion, and for the protection of those over whom they may exercise a 
 guardian care or influence; and prevent purchases to be made under 
 influences of this nature ; and scrutinize all dealings between persons 
 thus situated with the most careful watchfulness. 
 
 § 21. (2) By injunction, which is the principal method by which 
 
 • See Adams's Eq. 421 [190], where it is said that this maxim applied to crimes 
 and did not hold in civil cases. But this is true only to a limited extent. 
 2 3 John. C. R. 360 ; Ponb. Eq. 32, ch. 7, ? 6 and notes. 
 ' 1 Mad. Ch. Erac. 93 ; Com. Dig. Chancery. 
 
528 CIVIL LAW. [book hi. 
 
 equity interferes to prevent the commission of fraud and mischief. The 
 exercise of this authority may, be obtained — 1. To stay proceedings in 
 other courts, where they are perverted into instruments of fraud or 
 injustice. But generally, where the defendant in an action at law has 
 not used due diligence in preparing his defense, or in applying for a 
 discovery, he cannot, after vei'dict, obtain the aid of equity to stay pro- 
 ceedings at law, or to have a new trial. Equity will not review the 
 determination of courts of law in relation to matters properly within 
 its jurisdiction, nor relieve against their judgments on the ground of its 
 being against equity, unless the defendant was ignorant of the facts in 
 question, pending the suit, or unless the evidence to be obtained in 
 equity could not be received at law as a defense. 2. To restrain the 
 infringement of a privilege granted by statute ; as in cases of copy- and 
 patent-rights, franchises of corporations, bridges, ferries, and the like. 
 3. To stay waste, prevent nuisances and trespasses ; but it must be a 
 strong and peculiar case of trespass, where the injury is irreparable, or 
 not susceptible of an adequate pecuniary compensation at law, which 
 will induce equity to interfere. But to prevent a multiplication of suits, 
 an injunction might be granted to prevent a trespass. 4. To restrain 
 the assignment of negotiable securities, where they have been obtained 
 by fraud, to prevent their being passed into the hands of an innocent 
 purchaser, against whom the fraud could not be set up. 
 
 § 22. (3) By quieting titles and litigations, and by removing impend- 
 ing illegal claims. Reliefaf this nature may be had — 1. By hills of peace, 
 as they are termed, which are made use of where a person has a right 
 which may be controlled by various persons, at different times and by 
 different actions ; in such a case equity will-prevent a multiplication of 
 suits by directing an issue to determine the right, and ultimately, an 
 injunction. Bills of this nature may be sustained for an injunction 
 against a suit at law in trespass, ejectment, and the like,' where the liti- 
 gation may be repeated, and have the title settled under the direction 
 of a court of equity, though there had been but one or two trials at 
 law. 2. By hill of interpleader, to prevent fraud or injustice, where 
 two or more persons claim, adversely to each other, from him in pos- 
 session, for the purpose of settling rights of such claimants before the 
 person in possession be required to give up to either. And on the same 
 principle — 3. 'Rj hill of certiorari, to remove a case from an inferior 
 and incompetent jurisdiction. 4. By hill to perpetuate testimony in dan- 
 ger of being lost before the right can be determined. 5. By hill of 
 discovery, to discover evidence in the possession of the defendant which 
 cannot be otherwise procured, and which is necessary for the purpose 
 of prosecuting or defending a suit between the same parties at law. 
 6. By hill quia timet, for the purpose of preventing a possible future 
 injury, and thereby quieting men's minds and estates ; as where a legar 
 
CHAP. X.] EQUITY. 529 
 
 tee is entitled to a legacy at a future time, equity will interfere to pre- 
 vent it being squandered, and to secure it to the legatee when due ; or 
 to preserve property during litigation until the right to it can be set- 
 tled. And so where a person is threatened with a future litigation, 
 it will compel an investigation or a disclaimer. *\. By hill for deliv- 
 ering up deeds ; as where an instrument is void at common law, as 
 being against the policy of the law, or obtained by fraud, equity will 
 order it to be delivered up, or to be placed in safe hands ; and also for 
 the delivering up specific chattels, where they possess extrinsic value 
 and compensation in damages for them would not be an adequate redress, 
 as some article of family antiquity or extraordinary specimen of art or 
 curiosity. 
 
 § 23. Equity will also relieve in cases where courts of law have juris- 
 diction, but the relief they afford is inadequate or embarrassing — as 1. 
 Bill for apportionment of liabilities and duties, and for contribution 
 where one of joint obligors has been compelled to pay more than his 
 share or proportion, or is likely to be compelled to do so. 2. Bill for 
 partition between coparceners and others having a joint interest in lands 
 and tenements. 3. Bill for dower is entertained on account of the 
 embarrassment in proceedings at law, arising from trusts, terms, etc., 
 and on account that partition is made and accounts taken in equity 
 with more facility, and more favorable to the advancement of justice. 
 4. Bill to marshal securities and to settle conflicting liens and claims ; 
 as where a person has a lien on two securities, which are more than suf- 
 ficient, and another has a lien on one of them, or where there is an 
 insolvent estate. 
 
 § 24. Thus, equity interferes for the prevention of fraud ; and next 
 will be considered those cases where it interferes to redress frauds 
 which have been committed. Fraud is defined to be any kind of arti- 
 fice by which another is deceived ; and the courts have never yet ventured 
 to predict, as a general rule, what will constitute fraud, or to define 
 strictly the evidence of it, as that would cramp their jurisdiction and 
 render it liable to be eluded by new schemes committed by the fertility 
 of man's inventions.' And, as a general rule, lapse of time will not bar 
 ■the investigation of fraud, unless, indeed, it be so great as to furnish 
 very strong presumption against it. 
 
 § 25. The rule of law is that fraud is neve? to be presumed, and this, in 
 general, is considered a good rule in equity ; but there are some cases 
 where fraud is presumed from the circumstances of the case, where such 
 presumption is necessary for the protection of the rights of others, and 
 •where it does not affect the antecedent rights of those reached by it. 
 
 8 26. Equity will set aside all conveyances, agreements, and transac- 
 
 1 1 Mad. Ch. E. 255; 4 Des. Ch. K. S. C. 707. 
 34 
 
630 CIVIL LA W. [book iii, 
 
 tions affected with fraud, such as deeds, contracts, awards, and judg- 
 ments; and these may be arranged in three classes, — first, where a 
 person, by some fraudulent practice, obtained an undue or unconscion- 
 able advantage of another ; secondly, where the transaction may be 
 good as between the parties, but is void on account of its operating as 
 a fraud upon third persons ; and thirdly, where the transaction is void 
 on the ground of public policy. 
 
 § 27. First. If there be any fraud or imposition practiced by one 
 party upon the other, the contract or transaction may be avoided at the 
 instance of the injured party ; but if he chooses to have it stand, it will 
 be binding on him who practiced the fraud. Such contracts or other 
 transaction will not be set aside on slight grounds; prima facie, they 
 are conclusive upon the parties ; but if they have been procured by the 
 suggestion of a falsehood, or the suppression of the truth, it will afford 
 grounds for the interference of equity. Contracts have been set aside 
 on the ground of the gross inadequacy of the price, connected with 
 the weakness and the necessities of the seller ; but, as a general rule, 
 mere inadequacy of price or vireakness of understanding of the vendor, 
 unless it amounts to a legal non compos mentis, or the price be so 
 grossly inadequate as to shock the conscience, will not of itself enable 
 equity to interfere, unless there be also some undue advantage taken of 
 the circumstances or condition of the vendor, from which fraud or sur- 
 prise may be implied or imputed to the transaction.' 
 
 § 28. Secondly. Where a contract or other transaction is entered 
 into between two persons, whereby a third person is defrauded, 
 although the contract or transaction is binding on the parties them- 
 selves, yet fequity will relieve against it so far as it may be necessary 
 to protect the rights of others. This principle is often applied in cases 
 where a person has disposed of his property to the injury of his credi- 
 tors or subsequent purchasers; and for this purpose equity will relieve, 
 and require that all such disposition should be for a valuable considera- 
 tion and done in good faith. Therefore, if a man, being indebted, 
 should convey to the use of his wife or child, though that is a good 
 consideration (as love and affection), yet such conveyance, being incon- 
 sistent with that good faith which is due to creditors, will be set aside 
 in equity at their instance; for it is a maxim of equity that a man must 
 be honest before he is permitted to be generous. And in such a case, 
 though a person convey to another for a valuable consideration, yet if 
 done for the purpose of defrauding creditors, it will be set aside ; and 
 for this purpose equity will hold such circumstances as the inadequacy 
 of price, the retaining of possession by the vendor, or a trust for his 
 benefit, or an assessment clogged with conditions which hinder, delay, 
 or retard creditors, as badges of fraud. 
 
 1 1 Mado. Ch. Pr. 267 ; 1 Fonb. Eq. 66. 
 
CHAP. X.] EQUITY. 531 
 
 § 29. Thirdly. All contracts entered into upon aa illegal considera- 
 tion, in whole or in part, are void ; and neither law nor equity will 
 lend its aid to enforce any contract which may tend to the commissioa 
 of crime, the violation of decency or good manners, or serve as an in- 
 ducement to any public ofiScer to neglect his duty or make a corrupt or 
 oppressive use of his powers.' 
 
 § 30. IV. Infants and persons who are not sui juris are the special 
 objects of the care and protection of courts of equity. For the purpose 
 of protecting the rights and interest of infants, they seem to exercise a 
 general jurisdiction ; and it is claimed for them that the filing a bill on 
 their behalf makes them the wards of the court. A court of equity 
 will exercise its authority not only for the protection of the infant's 
 pecuniary interests, but will watch over its moral welfare, and, upon 
 proper grounds, may interfere and control even the authority and dis- 
 cretion which the father in general has in the education and manage- 
 ment of his children.^ A father, therefore, has been restrained from 
 doing anything toward removing his infant child out of the country, 
 and refused the custody of such child, on the ground that his character 
 and moral conduct rendered him unfit to be the guardian, or indicated 
 the mother the better person for such custody. 
 
 § 31. Courts of equity assume the power of changing the property 
 of an infant from real to personal and from personal to real, whenever 
 it appeared manifest for the infant's benefit. And it is the practice for 
 trustees representing the interest of infants, when any doubt exists as 
 to the propriety of any proposed measure for their interest, to seek the 
 indemnity of a decree of a court of equity, who will direct a master in 
 chancery to inquire into the interest of the matter proposed, and upon 
 report and consideration decree accordingly. It also holds the repre- 
 sentative of an infant to a strict accountability for what is or might be 
 made from the infant's estate ; and whoever enters upon the estate of 
 an infant is considered in equity as entering in the character of a guar- 
 dian, and accountable for the mesne profits.' 
 
 § 32. V. Specific performance of a contract is often sought for in 
 equity on the ground that the only remedy afforded by the courts of 
 law was damages for the breach of it, which was often inadequate to 
 do justice.* In such cases chancery will take jurisdiction, and in equity 
 decree a specific performance of the contract. But to induce this inter- 
 ference of equity, it must be evident — 1. That the legal remedy is in- 
 adequate, and that without a specific performance injustice would be 
 done or irreparable injury produced. Decrees of this nature are, there- 
 
 » 1 Mado. Ch. Pr. 284; 2 Fonb. Eq. 6. 
 
 " 1 Mado, Ch. Pr. 331 ; 2 Kent's Com. 220 ; 1 Ponb. Eq. 75-90. 
 
 > 2 Kent's Com. 228 ; 1 Fonb. Eq. 79. 
 
 « 1 Mado. Ch, Pr. 361; 1 Fonb. Eq. 48, Laussat's ed. 
 
532 CIVIL LA W. [book hi. 
 
 fore, commonly confined to realty, for personal property may, in gen- 
 eral, be fully compensated by damages to the amount of the market 
 value of the goods contracted for, and a specific delivery is not indis- 
 pensable to the attainment of justice. But chattels possessing extrinsic 
 value or pretium affectionis, and the exclusive good-vfill of a trade, do 
 not come within the same reason, and are, therefore, exceptions to this 
 rule.' There are, also, numerous cases where, by the contract, a specific 
 thing or work was to be done, where damages would not be an ade- 
 quate remedy, as the building of a house, delivering a boat, transfer- 
 ring certain stock, and the like, where, from the peculiar circumstances, 
 compensation in money would not be adequate to justice, that are also 
 made exceptions to the general rule.' 
 
 § 33. 2. Before a court of equity will interfere it must also be satis- 
 fied that the claim is just, fair, and reasonable, and that the contract was 
 equal in all its pai'ts, and founded on adequate consideration. This 
 discretion is not arbitrary, but is limited and defined by the established 
 rules of equity, and where a proper case presents itself, it is as much a 
 matter of course to decree a performance as it is at law to give dam- 
 ages. But where these equitable characteristics do not appear in the 
 case, the court will not only refuse to decree the performance, but will 
 sometimes, on the ground of fraud, unfairness, and the like, rescind the 
 contract. There are cases, however, where neither a performance nor 
 a rescission of the contract will be decreed, on account of some un- 
 fairness, hardness, or injustice of the case, or because it is illegal or im- 
 moral, which will induce the court to leave the party to seek his remedy 
 at law. It is a principle in chancery practice, that he who seeks equity 
 must do equity, and therefore in these cases relief will only be granted 
 on condition that an adequate compensation or abatement be made to 
 the opposite party, and the plaintiff must not only come into court 
 with a fair showing, but must show himself at all times to have been 
 anxious, ready, and willing to perform on his part of the contract, 
 unless he be able to show a reasonable excuse for the contrary. 
 
 § 34. VI. Trunin are creatures of equity, and form one of its principal 
 branches of jurisdiction, — they are specially favored in it. Trusts may be 
 created of real or personal property, and are either expressed or implied.' 
 1. Expressed trusts are created by deed or will, and for this purpose 
 no particular form of words is necessary, the intention only will be re- 
 garded by the court of equity. A trustee or cestui que trust will take a 
 fee without the word heir, where such can be gathered to be the inten- 
 tion of the donor, as when a smaller estate will not answer the object 
 of the trust estate. 2. Implied trusts arise, in general, by construction 
 of law, upon the acts or situation of the parties, as in cases of persons 
 
 1 1 Sim and Stua. Oh. K. 74. 
 
 2 1 Mado. Ch. Pr. 452, and n. 1 ; 1 Ponb. Equ. 328, note in Laussat's ed. 
 
CHAP. X.] EQUITY. 533 
 
 having in their hands donations for charities, or property, or custody 
 of lunatics, etc., or the estates of insolvents, or the estates of decedents, 
 as administrators, etc. Here may be included those resulting trusts 
 which result and arise from the implication of law, as where a person 
 purchases with his own money in the name of another, or purchases 
 with the money of another in his own name. In either case the legal 
 title is in equity held in trust for him whose means went to purchase 
 it, and whose in equity it should be, notwithstanding that the legal 
 title is in another. 
 
 §35. Over trusts equity exercises a most watchful care, and there- 
 fore will not permit the trustee to make or derive any personal profit or 
 advantage to himself from the trust, or allow him anything beyond his 
 expenses for his care and attention. As a general rule, a trustee is not 
 allowed to purchase the trust estate for his own benefit; and where he 
 becomes interested in the purchase at such sale, the cestui que trust is 
 entitled, as a matter of course, to have the purchase set aside, and the 
 property resold under the direction of the court. So the trustee must 
 account strictly for all profits which he has, or should with ordinary 
 prudence have, made ; and where a trustee buys up incumbrances upon 
 the trust estate at a discount, the purchase will inure to the benefit of 
 the cestui que trust. 
 
 PKOCEEDINGS IN EQUITY. 
 
 § 36. The proceeding in cases in equity in Ohio, before the code, was in 
 strict analogy to that of the English court of chancery, and very similar 
 to what existed in other States where chancery practice was known, and 
 which happily still exists in many of the States where the code has 
 not swallowed it up. The great outline of the system which then pre- 
 vailed was regulated by a few judicious provisions of the statute on 
 the subject, and it was denominated chancery practice. The terms 
 chancery and equity were applied to it equally and as synonymous. 
 There was then a striking resemblance in the chancery practice of all 
 the States where it existed, and the English chancery was its model. 
 Then English chancery reports were read here as aids in establishing 
 our principles and practice, as ours were read there, and in each 
 country assisted to build up an enlightened system of jurisprudence. 
 Before noticing the great change wrought in our equity practice by the 
 code it will be necessary to take a concise view of it as it existed here 
 before that change. 
 
 § 37. There did not exist here a separate court of chancery, but to the 
 court of common pleas and supreme court were given chancery juris- 
 diction. Proceedings in chancery were kept entirely distinct from ac- 
 tions at law, and the courts usually, for the great convenience of it, 
 
534 CIVIL LA W. [book hi. 
 
 ordered the law and ebancery docket to be made out separate, so that 
 the chancery cases, in which there were no jury and but few or no wit- 
 nesses, did not interfere with the trial of cases at law, where the jury 
 and witnesses were usually in attendance, by an arrangement for differ- 
 ent days for the trial of each class of cases. The chancery docket 
 included the cases in equity, petition for divorce and alimony, petitions 
 for partition and dower, and petitions and motions in other cases in which 
 the parties had no constitutional right to demand a jury trial. 
 
 § 38. A suit in equity was commenced by filing a petition on the 
 chancery side of the court, with a praecipe for a subpoena or other pro- 
 cess which was required to summon the defendant and make him party 
 to the proceedings. The rules by which to determine in what county 
 to commence suit, and for making non-residents parties to the proceed- 
 ings, by service and publication, were very much the same then as now. 
 
 § 39. The petition (frequently called the original bill) was directed 
 to the court, and the petitioner then complained of certain facts and 
 circumstances upon which his case in equity depended. If any state of 
 facts could be anticipated that might be set up by the defendant as an- 
 swer to the petition, they were usually stated as the pretense of the 
 defendant, and were then replied to and traversed, in anticipation, and 
 to avoid the necessity of an amendment or a special replication. After 
 this statement by the party (and pretense, when deemed necessary), 
 the petition continued : " Therefore your petitioner prayed that said A 
 B and C D, the defendants, be made defendants hereto by due process, 
 and that they answer all and singular the premises," etc. The defend- 
 ant, by our practice and statute, was not required nor permitted to make 
 his answer under oath, unless the plaintiff so called for it in his peti- 
 tion. This was a great improvement upon the English practice. For 
 when answered under oath it occupied the position of one witness, and 
 could not be controverted except by two witnesses, or circumstances 
 equivalent to it ; but when the answer was not so called for under oath, 
 it only occupied the position of a pleading, and might be successfully 
 controverted by one witness. The petition next, when it was deemed 
 necessary, prayed that the defendant answer certain interrogatories 
 there annexed, pertinent to the case, which the defendant was bound to 
 answer under oath, if so called for; and concluded by a prayer for such 
 decree and relief as the plaintiff thought himself entitled to, " and such 
 other and further relief as the court might consider the plaintiff, in 
 equity and good conscience, entitled to." Such petitions were usu- 
 ally as short and as much to the point, and contained the facts in the 
 statement of the case as concisely, as anything of the kind under the 
 code. 
 
 § 40. Upon service of process or publication, the defendant was bound 
 to answer, and if he neglected to appear, and within a given time to 
 
CHAP. X.] EQUITY. 535 
 
 demur, plead, or answer, he would be in default, and as such, a decree 
 would be entered up against him, which generally would answer all 
 the purposes of the plaintiff. But if a discovery was required of the 
 defendant, and he neglected to make such answer and discovery, he 
 would be in contempt of the court, and proceeded against accordingly 
 until he was compelled to discover, if it was found to be necessary to 
 the end of justice. The statute also authorized the defendant in certain 
 eases to disclaim all right and title to the matter in controversy, and 
 when so done was entitled to be dismissed with his costs. 
 
 § 41. Upon being duly served with process, the defendant, except in 
 cases where discovery was absolutely required, might consider whether 
 he would permit the case to go against him by default, or make his dis- 
 claimer, »r make his defense, which would require from him either a 
 demurrer, or a plea, or an answer. The demurrer was very much 
 of the same character as a demurrer at law. It claimed that the 
 plaintiff had not in his petition presented such a case as entitled him to 
 relief in equity, and prayed the judgment of the court thereon that he 
 may be dismissed with his costs. The demurrer, as at law, may be 
 either general or special, but in either case nothing but substantial ob- 
 jections were noticed ; and upon a general demurrer the question was, 
 whether the petition stated a case substantially relievable in equity. 
 The demurrer may be to the whole of the petition or bill, or it may be 
 to a specific part of it, in which case it should specially point out the 
 particular part to which it refers, and in that case the residue of the 
 petition must be pleaded to by either a plea or an answer. But the 
 plea or answer must not cover any part of that to which the demurrer 
 applies, for the plea or answer will overrule or supersede the demurrer; 
 when there is a demurrer, that must be first disposed of, and to be 
 argued and determined by the court as in cases at law. 
 
 § 42. A plea might be to the whole or a part of the petition. It was 
 founded upon some particular matter that was, in law, an answer to 
 such particular part as it assumed to answer to, and confined to a single 
 point, as to the competency of the plaintiff to sue, or the liability of the 
 defendant, or a matter in bar, as a release, or a former decree, and the 
 like. The question as to the sufi5ciency of the plea was raised without 
 demurrer ; but if put in issue by the plaintiff, the defendant was bound 
 to prove the truth of his plea, or it would go against him. The subject- 
 matter of the plea was traversed and put in issue by the plaintiff's rep- 
 lication, which was the pleading of the plaintiff as an answer to both 
 the plea or answer of the defendant. In these pleadings in chancery, 
 it was contrived, by stating some pretenses of the defendant, or by an 
 amendment in the petition, to bring out all the facts of the case, so that 
 a replication in general to either plea or answer merely denied the 
 truth of the matters set up by the defendant, and affirmed the truth 
 
536 CIVIL LAW. [book m. 
 
 of the petition, so that no new fact was brought out by the repli- 
 cation. 
 
 § 43. But it was by an answer that the defendant made his usual 
 defense to the petition of the plaintiff. This should contain a full 
 answer to all the material parts of the plaintiff's case where there was 
 no demurrer or plea to the residue ; and where it was not a full answer 
 it was subject to exceptions for insufficiency, taken and filed on that 
 account. But it was a rule in these pleadings, as it is generally in all 
 pleadings, that what was not answered or traversed was adxnitted ; but 
 this result was carefully avoided in the answer by a general traverse, to all 
 other matters not specially answered, by saying, " Without this that there 
 was any other matter or thing in the said petition true that was not suffi- 
 ciently answered," etc. If the petition called for an answer to any 
 matter that the defendant was not bound to answer, as that it subjected 
 him to a criminal prosecution or penalty, he might object to it, that he 
 was not bound to answer such particular matter, by demurrer or other- 
 wise. It was the practice here to permit the defendant, in his answer, 
 to insist on any substantial objection in the plaintiff's case, and have 
 the same advantage of objection as though the same had been set up by 
 a plea or demurrer. And it was also the practice to permit any matter 
 to be set up as a defense that could be the subject of a cross-action, and 
 call upon the plaintiff to answer the same. This was found to be a 
 matter of convenience in practice. This answer was made upon the 
 oath of the defendant when so called for by the plaintiff. If so called 
 for and made, it not only became a matter of pleading, but also a matter 
 of evidence, which could not be countervailed, except by more evidence 
 than the testimony of one witness. But by our practice the defendant 
 did not have this advantage, unless the answer was so called for by the 
 plaintiff. This was an improvement upon the English chancery practice. 
 
 .§ 44. After answer, the plaintiff, upon payment of cost, might amend 
 his petition, by adding new parties, or new matters, or both, upon the 
 new lights derived from the answer, and the defendant was obliged to 
 answer such amendment anew. But nothing could be iutroduced by 
 way of amendment, except what appeared to have happened before the 
 filing the original petition, for new matters, which did not exist before, 
 must be set forth by the plaintiff in a supplemental petition. In case the 
 suit became abated by the death of either, or any party, it sometimes 
 became necessary to continue the case by a, petition of revivor;^ but fre- 
 quently the case was continued by other proceedings, as the entry of the 
 proper party on record by consent, or by notice and order of the court. 
 
 § 45. When the parties were at issue upon any of these matters, as 
 upon a demurrer or plea, or upon exceptions to the answer, or when the 
 
 ' 4 Stephens's Com. 24. 
 
CHAP. X.] EQUITY. 537 
 
 plaintiff was disposed to submit the case, without the evidence, upon the 
 petition and answer ; the case thus made was set down for a hearing, 
 and was argued and tried by the court in the usual way without the inter- 
 ference of a jury trial. But if there were facts in issue which either party 
 was bound to sustain, and did not choose to submit them, as they might 
 be inferred from the record without such evidences, they proceeded to 
 produce the same ; and if it consisted of the testimony of witnesses, they 
 proceeded to take their deposition ; for it was a rule of these chancery 
 proceedings that all the evidence of the case must be produced in writing 
 and made part of the proceedings, so that the record itself would show 
 the whole case, testimony, evidence, and all ; and so that, if there were 
 any error in proceedings or decision of the court, it appears on the face 
 of the record without exceptions being taken as in cases at law. 
 
 § 46. After the depositions were taken, the case was, at the regular 
 term of the court, set down for a hearing upon the pleadings and evi- 
 dence. When the case was ready for a final hearing and decree, the 
 case was tried very much in the same manner as a case at law upon 
 demurrer or in error. At the trial the counsel for the parties were 
 required by a rule of the court to furnish a brief of their case, in which 
 was stated an abstract of their case, the points relied upon, together 
 with a citation of their authorities. But frequently before this final 
 hearing of the case, the court would come to the conclusion that there 
 were some preUminary investigation to be made, or some points in the 
 case to be settled before the court could come to a final decision in the 
 ease. For this purpose the case was sometimes, by an interlocutory 
 decree, referred to a master commissioner in chancery, to take testi- 
 mony and report upon certain points in the case, or to take accounts 
 between the parties, or to ascertain and settle certain specific points in 
 the case, and report thereon to the court. To this report either party 
 dissatisfied might take exceptions, which would be examined and set- 
 tled by the court. There might also be a necessity in the case for the 
 appointment of a receiver to collect and receive the assets involved in 
 the case, and to convert them into money, ready to be disposed of as 
 the court might direct. 
 
 § 47. It is only in those cases where there is some doubt or difficulty 
 as to legal rights that equity takes jurisdiction, and proceeds to admin- 
 ister justice without the aid of a jury. Where a person's rights are 
 complete and fixed by the law, he hasv the right to have those rights 
 ascertained and determined, as to the facts of the case, by a verdict of 
 a jury ; but in equity, according to chancery proceedings, the court pro- 
 ceed ordinarily without the aid of a jury, for they only take such cases 
 whose right at law is incomplete, and whose equity is so clear and ob- 
 vious that the law itself acknowledges the necessity of the interference iu 
 equity. The proceedings, therefore, in equity must be necessarily mora 
 
538 CIVIL LA W. [book III. 
 
 cautious and slow, to see that the legal rights are not interfered with 
 except upon clear principles of equity, which, in conscience, renders the 
 case superior to the legal rights of the positive law. If in such cases 
 the court find a matter of fact doubtful or strongly contested, they may, 
 from a sensitive apprehension of interfering with vested legal right, and 
 the constitutional right to a trial of the question by a jury, order the 
 particular matter or point of fact to be so determined by a jury. This 
 was formerly done by what is called a feigned issue, by means of which 
 the question was put to a jury; but now for many years, both in Eng- 
 land and in this country, the practice is to submit any such question of 
 fact directly, by an order of the court, stating the question, to be tried 
 by the jury. 
 
 § 48. Cases in equity frequently require such references to a master 
 to settle long, intricate, and conflicting accounts in various relations to 
 the parties ; to a jury to settle a doubtful or strenuously contested fact, 
 and to enable the court to settle such conflicting facts and conflicting 
 claims and interests satisfactorily. In the course of these preliminary 
 proceedings frequent questions are raised before the court requiring 
 interlocutory orders and decrees, as upon exceptions upon reports, mo- 
 tions to amend, or for further instructions to the master or receiver, or 
 to determine some preliminary question, reserving all equities. The 
 reports made frequently require long and tedious investigations, and 
 upon exceptions taken to them, they may be disapproved and over- 
 ruled, and sometimes re-referred with further instructions, or they may 
 be approved and confirmed and made absolute. 
 
 § 49. When these preliminary matters are settled, the case is again 
 brought before the court, and set down to be heard on the equity re- 
 served ; and upon the hearing, & final decree is entered, settling the rights, 
 interest, and equities of all the parties, however conflicting, and of each 
 one, whether plaintiff or defendant. Such final decree is enforced by court 
 in various ways, — by executions, attachments, or other means within the 
 power of the court, as the peculiar nature of the case might require. 
 
 § 50. After the decree is rendered, the party losing may have a re- 
 hearing, upon motion and good cause shown ; but this is unusual and 
 must be founded upon some extraordinary and meritorious reasons. 
 But if this is denied, the party dissatisfied may have an appeal to the 
 higher court, which will enable him to have a rehearing on the merits 
 of the whole case. But the most frequent mode of testing the correct- 
 ness of a final decree was by a petition or bill of review, which could 
 only be had upon errors apparent in the record, or by special leave of 
 the court, upon the oath of the party of the discovery of new matters 
 or evidence which could not possibly be had or used at the time when 
 the decree was passed. But no new matter will be admitted as grounds 
 for a review that was within the knowledge of the party, or that due 
 
CHAP. X.] EQUITY. 539 
 
 diligence could have secured at the time of the trial. This is very much 
 upon the same principles that courts of law admit proceedings in error, 
 as to errors in law and errors in fact. But there was this striking dif- 
 ference between them: at law the record contained nothing but the 
 process, the pleadings, and the judgment of the court. The evidence 
 upon which that judgment was dependent did not appear in the record, 
 unless it was brought into it by a bill of exceptions. But in proceed- 
 ings in chancery, the evidence was all in writing and made a part of 
 the proceedings and record of the case. Therefore, upon the review 
 the whole case was up again before the court upon its whole merits or 
 demerits, unless it was upon the seldom-recurring case of newly-dis- 
 covered matter. This proceeding in review was usually in the same 
 court, and in some courts there was an appeal allowed to a higher 
 court, but there the appeal would only be upon the question made by 
 the bill of review. 
 
 EQTJITT UNDER THE CODE. 
 
 § 51. The code does not change the right of action or the principles 
 upon which is founded a cause of action, either legal or equitable. All 
 rights and causes of action and distinction between law and equity, or 
 legal and equitable rights and remedies, still remain the same as before, 
 so far as the right and causes of action themselves are concerned; it 
 only changes the form of action and mode of proceeding. This is what 
 the code assumes to do ; but it must be confessed that rights and reme- 
 dies are frequently seriously affected by the mode and manner in which 
 those rights and remedies are to be pursued. The principal changes 
 wrought by the code are found in its following declarations : 1. "The 
 distinctions between actions at law and suits in equity, and the form of 
 all such actions and suits, heretofore existing, are abolished, and here- 
 after there shall be but one form of action," called civil action." 2. 
 " The plaintiff may unite several causes of action in the same petition, 
 whether they are such as have heretofore been denominated legal or 
 equitable, or both, when they are included in either one of the following" 
 seven classes of actions designated in the code.'' 3. " The defendant 
 may set forth in his answer as many grounds of defense, counter-claim, 
 and set-off as he may have, whether they be such as have been hereto- 
 fore denominated legal or equitable, or both.'" 4. A " counter-claim 
 must be one existing in favor of a defendant and against a plaintiff, 
 between whom a reversal of judgment might be had in the action, and 
 arising out of the contract or transaction set forth in the petition, as 
 the foundation of the plaintiff 's claim, or connected with the subject of 
 
 1 Code, g 3. ^ Code, § 80. » Code, g 93. 
 
540 CIVIL LAW. [book m. 
 
 the action.'" "A set-off can only be pleaded in an action founded on 
 contract, and must be a cause of action arising upon contract or ascer- 
 tained by the decision of the court.'"' 
 
 § 52. The code, therefore, confounds all distinction between legal and 
 equitable actions as to remedies and their mode of proceedings, and re- 
 quires both and each to be prosecuted and defended in the same form of 
 action and mode of proceeding. Notwithstanding that the distinction be- 
 tween law and equity is still acknowledged, and the rights and causes 
 of action dependent on that distinction still exist, yet, by the code, 
 these distinctions of law and equity, which have been so founded upon 
 the very nature of things, and upon the very fact that some things 
 existed within the positive law and others without it, which, by 
 having been kept distinct, have been wrought up into that beautiful 
 and useful system known as equity, that there are great fears that 
 under the code it will become so united and commingled in the pursuit 
 of rights and remedies that its distinction and usefulness will become 
 inevitably lost. 
 
 § 53. This change, produced by the code in abolishing all distinction 
 between law and equity in the pursuit of remedies by action, both in 
 the prosecution and defense, is so complete as to all that appertains to 
 the action or suit, in which all are so united that often it is difficult, if 
 not almost impossible, to tell which is dependent on positive law and 
 which upon the principles of equity, in the manner in which they are 
 sometimes mixed up before the court and jury. This result is not only 
 produced by the form of actions, but it is carried out by the same course 
 of pleadings, evidence, and judgment. 
 
 § 54. The former mode of pleading was well adapted to the different 
 rights and interests as they were developed and known in- law and 
 equity. At law the necessary legal facts were stated, which consti- 
 tuted the right of action, without anticipating and answering anything 
 in advance as to what the defendant might say as a defense, or as a 
 pretense, and then answering it, so as to obviate the necessity of a 
 special reply. But that was left to the defendant to set up in his own 
 defense in his plea. If the plaintiff's facts were denied, they were at 
 once at issue ; but if the defendant in his plea stated a new fact which 
 confessed and avoided the plaintiff's claim, it would require him to 
 answer it in his replication; and if this reply was by a new fact, which 
 again confessed and avoided, it would require it to be answered by the 
 defendant in a rejoinder ; and so must each party proceed until they 
 were at issue ; and experience teaches us that this alternate altercation 
 would soon come to an end ; and it is difficult to imagine a case where 
 such altercation would continue beyond, or even to, the rejoinder. This 
 
 1 Code, 2 94. J Code, I 97. 
 
CHAP. X.] EQUITY. 541 
 
 has been the course of pleading at law from the time of Justinian. And 
 this system was admirably adapted, at common law, to bring the facts 
 of the case in issue for the finding of the jury, and enable the court to 
 pronounce their judgment upon such finding of the facts. 
 
 § 55. But the pleading in equity was upon a different principle and for 
 an entirely different reason. No case was in equity until it was apparent 
 that it was not a case within the jurisdiction of law, or that there was 
 not a plain and adequate remedy there. Courts of equity proceeded in 
 a slow and cautious manner, to see that they did not interfere with 
 positive law, and trample upon legal rights. For this purpose the 
 plaintiff was required to set forth, in his petition, the whole circum- 
 stances of his case, and often to anticipate the defense of the defendant, 
 and often to bmend for the purpose of doing so, so that the defendant 
 had nothing to do in the answer but either to admit or deny ; or, per- 
 haps, in some cases, also to answer interrogatories and disclose. Thus 
 the plaintiff would have nothing to say in his replication but to join 
 issue, by denying the truth of the answer and reaffirming the truth of 
 the petition, and praying the decree of the court thereon. The code com- 
 bines the two systems, and by restricting the pleading to the reply, it 
 frequently goes to a trial on the reply, when a new matter is alleged, 
 without coming to an issue ;' and in cases in equity it is not as easy to 
 adapt it to the case as our former equity pleading. 
 
 § 56. In pleading under the code, it is required to state the facts and 
 the facts only, which constitute the essential matter of the cause of 
 action, or the grounds of defense ; and, for cases at law, this is very 
 well, if it were permitted to be carried out, until they came to a traverse 
 that might be required in a pleading after the replication. In cases in 
 equity it is absolutely necessary to state facts to a greater extent than 
 at law, so that it is impossible to state a cause of action at law, and one 
 dependent on the principles of equity, without at once discovering the 
 difference in pleading. It is essential, in a case in equity, to state those 
 facts and circumstances which rendered it a case in equity, outside of 
 the positive law, or those which gave a right of action in equity when 
 the law did not ; such as the facts and circumstances which may affect 
 the question of costs, or an offer to do equity, or to submit to the direc- 
 tion of the court, and the like, which frequently become essential to its 
 success in a case in equity. These become essential allegations, or ma- 
 terial facts, in a case in equity, when they would have no place in a case 
 at law. Still, under the code, nothing but the essential facts should be 
 alleged, no more in cases in equity than in a case at law, — the difference 
 being occasioned in consequenco- of a case in equity being so different 
 from a case at law. 
 
 1 See code, § 117. To permit the pleading to be carried out in its final result 
 and issue would be an improvement. 
 
542 CIVIL LA W. [book hi. 
 
 § 57. In drafting a petition or bill in equity, before the code, it was 
 customary to anticipate and state pretenses of the defendant, and cir- 
 cumstantial evidence in addition to the essential facts, for the purpose 
 of avoiding further pleading, or as an excuse for coming into equity, as 
 has been previously remarked.' But this, now, would be improper and 
 out of place under the code, and would be subject to a motion to be 
 stricken out as reduadant matter. The rule is, that the pleading should 
 consist of material allegations essential to the claim, or defense, which 
 could not be stricken out without leaving it insufficient f all beyond 
 this is redundant matter and subject to be stricken out. 
 
 § 58. The student, in learning equity pleading under the code, must 
 resort to the same fountain as we did before to ascertain, iu any given 
 case, what are the essential facts of his action, for they remain un- 
 changed in principles, and then allege such facts in accordance with the 
 requirements of the code. It then may well be doubted whether the 
 code has in the least facilitated the labors of the diligent student, which 
 he owes to his clients and profession. 
 
 1 See ante, ch. v. § 54-67. » See code, J . 
 
SOOIC IV. 
 
 CRIMINAL LAW. 
 
 CHAPTER I. 
 
 CRIMES, AND THE PERSONS WHO MAY COMMIT THEM. 
 
 § 1. The last division of the law is that of public wrongs or crimes, 
 as distinguished from private wrongs or injuries. "Wrongs that affect 
 merely persons in their private capacity are left by the law to be prose- 
 cuted by the injured person in his civil action for the recovery of his 
 individual damages and redress. Usually the law does not notice such 
 private injuries as a public offense, but when the wrong directly affects 
 the public, .or the wrong to an individual is of that character that it 
 endangers the interest or welfare of the public, the act is usually de- 
 clared a public offense, and considered a crime. The distinction is, that 
 where the act or matter in dispute is a mere question of private right, 
 it is left unprotected by the criminal law, and to be redressed only by 
 the civil remedies. But such acts as endanger the public peace and 
 safety, or are injurious to its interest or morals, are not only redressed 
 as a civil injury, but also protected and punished as a crime. 
 
 § 2. A crime is any act done by a person in violation of public duty 
 that the law has directed to be done, or prohibited, and punishes its 
 infraction. Such violation of law is denominated a crime, felony, mis- 
 demeanor, or offense ; but, under the appellation of crime, every species 
 of public offenses may be included, as treason, murder, or the minor 
 offenses. But the word felony, in the United States, has no definite 
 meaning. At common law it denominated such crimes as were pun- 
 ished by the forfeiture of lands and goods.' The designation of a crime 
 here as felonious, is therefore without meaning, unless it be to intimate 
 that it was considered more heinous. The distinction between crime 
 and misdemeanor is not marked by any distinct difference ; but crime 
 is usually applied to such offenses as are characterized by greater atrocity, 
 and misdemeanor to such as are of the minor offenses. A crime is some- 
 
 ' 4 Stephens's Com. 58 1 4 Blackst. Com. 94; 11 O. S. E. 40; 13 Ibid. 569. 
 
 (543) 
 
641 CRIMINAL LA W. [book it. 
 
 times denominated as a capital crime, which means that it is subject to 
 be punished with death ; and sometimes we have the distinction of 
 crimes of the first and second grade. 
 
 § 3. But no act is considered a crime in law unless it is so declared 
 by law, and its violation punished. In England crimes are punished 
 as they are defined and known to the common law ; and this is the 
 case in some of our States.^ But in Ohio it has been frequently de- 
 cided that there were no common law criminal offenses in this State ;^ 
 for here a criminal prosecution and punishment for a crime or offense 
 must be founded upon a statute or ordinance, so that the crime and its 
 punishment may be known by positive law. In England and in some 
 of the States where common law offenses are subject to a criminal prose- 
 cution, the criminal law becomes so intricate and mixed between the 
 common law and the statutory enactments that it becomes diflicult to 
 find and determine the law ; but there the general rule is that where 
 there is a statute upon the same subject as the offenses at common law, 
 the criminal offense at common law is merged in that of the statute. 
 
 § 4. As to criminal prosecution, it is "now well understood that the 
 courts of neither the State of Ohio nor those of the United States' en- 
 tertain any jurisdiction of crimes or criminal offenses as at common law. 
 It is required that some positive enactment be shown as a warrant for 
 such criminal prosecution. There are many reasons for this; as that 
 there is a great propriety in there being no public offenses to which 
 persons may be made amenable, criminally, unless the legislative power 
 of the country has positively and plainly so declared it, and affixed 
 the limits of the penalty attached to such offenses. Besides, there is 
 much conflict and incongruity when criminal proceedings are enter- 
 tained of crimes and penalties, both under the statutes and at common 
 law. 
 
 § 5. Crimes must be dependent upon the actual law and legislative 
 will. The laws of all countries and of the several States vary much as 
 to what is enjoined or prohibited, and as to their sanction or the pun- 
 ishment inflicted upon their violation. Often the criminality of the act 
 depends wholly on the fact that the legislative power has so declared 
 it, for some reason of public convenience or welfare. Those offenses 
 which are of a more heinous character are usually denominated crimes, 
 and those of minor offense, misdemeanors ; but often the sinfulness of 
 the act thus commanded or prohibited depends entirely upon the man- 
 date of the law and the sanction of its penalty. It is, however, com- 
 
 ' Wharton's Or. Law, 33-89. 
 
 2 Ohio Dig. 273, § 195-6 ; 10 0. E. 345 ; 10 0. S. K. 287 ; 12 Ibid. 466-9 ; also, 
 6 0. R. 241. ' 
 
 ' Wharton's Cr. Law, 76 ; 1 Kent's Com. 838 ; U. S. vs. Hudson, 7 Cranch's 
 E. 32 I U. S. vs. Coolridge, 1 Wheaton's E. 416. 
 
CHA.P. I.] CRIMES, ETC. 545 
 
 mon in the law to distinguish such offenses as have in them moral tur- 
 pitude from those that have not, and denominate the first as mala in se, 
 and the last as mala prohibita. 
 
 § 6. But vphatever wrongful act is committed that is injurious to 
 another, whether prohibited by the law, and ])unished as contrary to the 
 public interest and welfare, or not, is still subject to be prosecuted as a 
 private injury, for a compensation in damages, as a mere private wrong. 
 For, as a general principle, every such act, injurious to private rights, 
 is subject to the prosecution of a civil action, though at the same time 
 it may be subject to a criminal prosecution, as an offense against the 
 public welfare. In some cases, the common law suspended the private 
 action until the public wrong had been duly prosecuted ; and in cases of 
 higher crimes, and of great atrocity, the private injury was merged in 
 the public wrong, as in cases of murder, burglary, and the like, where 
 the private redress is scarcely ever thought of. There is no established 
 principle in the laws of Ohio, however, that requires the civil remedy to 
 be postponed until the criminal prosecution of the case is disposed of. 
 
 PUNISHMENTS. 
 
 § 1. Crimes are not punished upon the principle of revenge or retalia- 
 tion,' nor yet is the penalty held out as the sanction of the law, as a 
 matter at the option and choice of the offender, whether to refrain from 
 the commission of the offense or to pay the penalty ; but the object of the 
 law, in commanding or prohibiting an act to be performed or omitted, 
 is to announce such matter as an object of public good, that no person 
 as a matter of moral conscience is permitted to disregard, nor is the 
 sanction or penalty of the law to be regarded in any other light than as 
 a punishment and disgrace. The punishment is threatened for the pur- 
 pose of deterring from the violation of the law, and in some instances 
 by way of redress to the injured party, and in all cases by the evil.con- 
 sequences of the offense and its punishment, to hold out an example and 
 induce a reform. 
 
 §8. Punishments usually inflicted by law, on account of the com- 
 mission of crimes and offenses, are graded more or less severe, accord- 
 ing as the crime is more or less atrocious, or more or less against the 
 public peace or welfare. TTsually, such punishments consist of pecu- 
 niary fines, imprisonment in the jail or the penitentiary, and, in capital 
 cases, death. But in Ohio capital punishment is never resorted to, 
 except in cases of murder in the first degree; personal chastisement is 
 never inflicted, and punishments generally are tempered to the princi- 
 ples of humanity and justice. The history of this subject discloses that 
 
 > "Vengeance is mine and I will repay, saith'the Lord." 
 35 
 
546 CRIMINAL LA W. [book iv. 
 
 cruel and sanguinary punishments, instead of deterring and diminishing 
 offenses, tend to inure and harden the people to them, and to become 
 the very means of increasing and nursing crime. 
 
 § 9. The law, as has been seen, in all cases of wrong assumes to 
 afford redress for the private injury, and whenever such wrongs become 
 detrimental to the public welfare and interest, they are punished and 
 restrained as a crime by such laws as the legislative power has deemed 
 proper for the safety and prosperity of the whole. Sometimes the law 
 not only punishes the injurious act as a crime, and inflicts upon it pen- 
 alties which go to aid the public safety and increase the public treasury, 
 but also, as a part of the punishment, sentences the offender to restore to 
 the injured person what has been taken from him, and to make satis- 
 faction sometimes in several-fold. 
 
 § 10. As there are no common law crimes and offenses in Ohio, nor 
 under the government of the United States, all penal laws, both as to 
 the description of the offense and its punishment, exist here only by 
 positive statutes. Thus the laws punishing crimes become better known, 
 their requirements and punishments better understood, and more cer- 
 tain to be complied with and observed. In those States, however, where 
 common law crimes and offenses are still acknowledged to prevail, it is 
 there a matter of intricate conflict between the common law and the 
 statutory enactments. There the rule seems to be this: where the 
 statute creates an offense and expressly provides for its punishment, 
 the statute provision must be strictly followed ; but where it merely 
 attaches a new penalty, either the remedy by the statute or that at com- 
 mon law may be pursued. When a new mode of prosecution is provided, 
 it is considered as accumulative, and such prosecution may be either 
 under the statute or at common law, at the option of the party at whose 
 instance the prosecution is instituted ; but when the statute covers the 
 whole case, both as to the description and penalty, or a misdemeanor 
 made a felony, there the common law offense is merged in the statute.^ 
 But in the courts of the United States and those of Ohio, where there 
 are no common law prosecutions, we have none of these conflicts to 
 contend with. 
 
 § 11. In all criminal prosecutions the law humanely leans toward the 
 accused in all questions of doubt or difficulty, so that no one is per- 
 mitted to suffer more, though he may suffer less, than the law positively 
 warrants. Therefore, every doubt of guilt and presumption of inno- 
 
 1 Common law offenses still exist in Massachusetts, New York, Virginia, and 
 some of the other States. " The word felonious, at common law, has a well-de- 
 fined meaning, but with us it is as vague and indefinite as the word unlawful." 
 See 5 0. R. 5 and 241 ; 11 0. K. 406 ; 13 0. S. R. 569. The recent code of Ohio 
 declares ^^felony" signifies such offense as may be punished with death or impris- 
 onment in the penitentiary. Other offenses are misdemeanors. 
 
CHAP. I.] CRIMES, ETC. 547 
 
 cence are to be cast ia his favor. The party accused is to be presumed 
 innocent; and the burden of proof is upon the prosecution, unless in a 
 particular case the statute has prescribed a different rule. This legal 
 presumption of innocence can be overcome only by full proof, such as 
 will exclude all reasonable doubts of guilt.' When a criminal statute 
 is repealed, and there is no provision in the repealing act, saving a pend- 
 ing prosecution, no conviction can be had under such repealed statute. 
 
 § 12. Although the law requires every person to know the law, — for 
 ignorance of the law is an excuse to no one, — yet, the law requires rea- 
 sonable opportunity to know that such a law existed ; as where the 
 law was recently enacted, and it was impossible for the accused, at the 
 distant place he was in, to become acquainted with the law.^ But when 
 the act is done in honest ignorance of the fact upon which the crime 
 depended, the accused will be excused upon the ground of the absence 
 of a criminal intention, which is necessary to produce a conviction in 
 all cases; though such criminal intention may be deduced from a wicked 
 disregard of the consequences of his act. The criminal intention may be 
 implied from the overt act of the case, for every person is supposed to 
 intend whatever is the natural and necessary consequence of his acts.' 
 
 § 13. In order that any act should be criminally prosecuted and pun- 
 ished, it is necessary not only that the legislative power should have so 
 expressly declared it, but the law should be enacted and published before 
 the commission of the offense. It is a general principle, in criminal law 
 at least, that all retroactive legislation is unjust and unconstitutional. 
 Criminal laws enacted after the commission of the offensive act, are 
 ievmeA ex post facto laws, which are prohibited both by the Constitu- 
 tion of this State and that of the Union, — and throughout the civilized 
 world are looked upon as cruel and unjust. 
 
 § 14. Laws that ameliorate the condition of the accused, or render 
 the prosecution less offensive, or the punishment less severe, are not 
 objectionable, or subject to be termed retroactive or ex post facto laws. 
 The State may remit, or even pardon the offense, but it cannot increase 
 the offense, or punish it more severely than the act was subject to be- 
 fore its commission. Criminal laws are bound to \ie prospective and 
 not retrospective in their enactments. 
 
 § 15. There are several constitutional provisions both in the State 
 Constitution and that of the Federal government, which bear upon 
 criminal prosecutions and punishments which should be here noticed. 
 Among these is the provision that there shall be no ex post facto law :* 
 
 » Broom's Max. 275 ; see Puller vs. State, 12 O. S. K. [433]. 
 
 » Wharton's Or. Law, 57 ; Broom's Max. [232], [244]. 
 
 s Broom's Max. [275]. 
 
 < Const, of U. S. Art. i. Sect. 9. And the Const, of Ohio provides, that " the 
 General Assembly shall have no power to pass retroactive Iflws," which amounts 
 to the same. 
 
548 CRIMINAL LAW. [book it. 
 
 " The right of trial by jury shall be inviolate.'" And in relation to the 
 trial and punishment of crimes, has this general provision : " Except in 
 eases of impeachment, and cases arising in the army and navy, or in 
 the militia when in actual service in time of war or public danger, and 
 in cases of petit larceny and other minor offenses, no person shall be held 
 to answer for a capital or otherwise infamous crime, unless on present- 
 ment or indictment of a grand jury. In any trial, in any court, the party 
 accused shall be allowed to appear and defend in person and with coun- 
 sel ; to demand the nature and cause of the accusation against him, and 
 10 have a copy thereof ; to meet the vi^itnesses face to face, and to have a 
 compulsory process to procure the attendance of witnesses in his behalf, 
 and a speedy public trial by an impartial jury of the county or district 
 in which the offense is alleged to have been committed ; nor shall any 
 person be compelled, in any criminal case, to be a witness against him- 
 self, or be twice put in jeopardy for the same offense.'" 
 
 § 16. These constitutional provisions have been adopted in the spiril 
 of humanity and justice, and render our code of criminal law as highly 
 characterized by that spirit as that to be found in any country. In ad- 
 dition to these restraints of the constitution on the mode and manner of 
 punishing crimes, corporeal punishments, except by imprisonment, and 
 in cases of capital crimes by death, are entirely unknown in the laws 
 of Ohio, and are looked upon as the relics of a cruel and barbarous age. 
 The most common mode of punishing public offenses here is by the im- 
 position of a fine. This mode of punishment is sometimes objected to 
 as impliedly sanctioning the idea that the law .sells indulgences upon 
 the condition of paying the fine. But this is a very erroneous idea of 
 our law ; for the law, in the first place, prohibits the offense, and then, 
 by the means of announcing the fine against the commission of the 
 offense, endeavors to restrain it, and gives ample means to the court, 
 by fixing the fine between two extremes of a high and a low fine, to 
 grade the fine to the desert and the pecuniary ability of the offender; 
 and the court is very astute in grading the fine in accordance with the 
 probable effect it will have upon the accused in restraining him and 
 others, and in consideration whether it is his first or other offense. 
 
 § 17. But it is by imprisonment that the most usual punishment is 
 inflicted for the higher grades of offenses that are still below the grade 
 of capital punishment. The punishment of crimes by imprisonment is 
 effected here by confinement either in the jail of the county or in the 
 
 1 Const. Ohio, Art. i. Sect. 5. 
 
 2 Const. Ohio, Art. i. Sect. 10 : " There are many offenses which are hut quasi 
 criminal, where the legislature may direct the mode of redress untrammeled by 
 the provisions of the Constitution." Per Wood, C. J. Markle vs. The Town 
 ,of Akron, 14 O. K. 589. See 5 0. S. E. 324; 8 O. S. K. 131. 
 
CHAP. I.] CRIMES, ETC. 549 
 
 penitentiary of the State. To the first are sent such culprits — guilty 
 of misdemeanor such as the law authorizes that form of punishment — 
 as may be obnoxious to such punishment by imprisonment in the county 
 jail, — the length of which will be within the extremes designated by the 
 law, as the sentence of the court may fix it at a longer or shorter time, 
 dependent upon their opinion of its effect in producing a wholesome 
 moral effect and reform. In the same manner the court sentence the 
 criminal in the higher cases of crime, such as grand larceny, burglary, 
 horse-stealing, criminal homicide (not amounting to murder in the first 
 degree and punished with the capital punishment of death), and the 
 like, to the State penitentiary for a longer or shorter number of years, 
 or for life, there to expiate their offense by hard labor and penitence. 
 
 § 18. Capital punishment by death is never inflicted by our laws e.x- 
 cept by hanging, and in no case except for murder in the first degree, 
 which is defined to be the killing of another purposely, and of delib- 
 erate and premeditated malice, or in the perpetration or attempt to per- 
 petrate any rape, arson, robbery, or burglary, or by administering 
 poison. In such heinous and atrocious crimes only is this capital pun- 
 ishment of death inflicted. 
 
 § 19. It was neither just nor expedient for the law to fix the precise 
 amonht of punishment to be inflicted in each particular offense. Our 
 statutes generally grade the offenses according to their enormity or evil 
 consequences to the public, by a higher or lower amount or severity, 
 and then prescribing for each offense the smallest and largest fine, or 
 the shortest or longest term of imprisonment. Between these extremes, 
 it is confided to judicial discretion to fix the punishment in each par- 
 ticular case according to its merits, and as public example and interest 
 may require. 
 
 PERSONS WHO MAY COMMIT CEIME. 
 
 § 20. A crime is the violation of some positive law by a rational 
 being who was capable to distinguish between right and wrong, and 
 was guided by intention. The persons who are without the proper 
 degree of understanding are not in law held responsible criminally for 
 the consequences of their acts.' Although every human being is ordi- 
 narily presumed to be responsible for his acts done in violation of law, 
 yet there are several exceptions, founded upon either the want of a due 
 degree of intellect, or (in some instances) the restraint founded upon 
 authority and control that others may exercise over them. These ex- 
 ceptions may include such persons as are — I. Non compos mentis; II. 
 
 1 Wharton's C. L. 42. 
 
550 CRIMINAL LA W. [book iv. 
 
 Infants ; and III. Feme coverts, and persons under some restraints 
 from the control of others. 
 
 § 21. I. Persons who are non compos mentis have been divided into 
 these three classes — 1, idiots, those who are persons of unsound memory 
 and understanding from their nativity, or such as become so by the 
 visitation of God, as by sickness or accident ; 2, lunatics, those who 
 have sometimes their understanding and sometimes not ; and 3, 
 drunkards, and those who, by their own vicious acts, have, for a time, 
 deprived themselves of their memory and understanding. These classes 
 of cases are all put upon the same principle, — the necessity there is for 
 the accused, at the commission of the act, to have his understanding, in 
 order to render hira an accountable being, so as to be able to distinguish 
 between right and wrong.' For a person is not held responsible for a 
 criminal act he may commit, if, by reason of mental derangement, lie is 
 unable to distinguish between right and wrong, in regard to the par- 
 ticular act, and of knowing that the act itself was wrong, or has no will 
 or conscience, or controlling mental power, or not sufficient memory 
 to recollect the relation he stands to others, or when his reason and 
 judgment become so overwhelmed by the violence of his disease as 
 to act from an irresistible or uncontrollable impulse. 
 
 § 22. When this mental unsoundness actually exist.?, it is immaterial 
 how it originated, or by what means it was originally produced. The 
 cases in which it may be questioned are those where the accused had 
 in reality a sound intellect, but at the time of the commission he had 
 willfully produced temporary insanity, or permitted an ungovernable 
 passion to arise that he might have controlled, as in case of drunken- 
 ness, or the willful abandonment to an overwhelming passion. But as 
 intention and malice are always taken into consideration, in criminal 
 cases, in determining the degree of crime and its measure of punishment, 
 such temporary derangement of mind may go in mitigation of the 
 offense, but not to excuse it.^ When drunkenness has brought on a stand- 
 ing or permanent derangement of mind, it must be treated in the same 
 manner as one brought on by any other cause or accident. But when 
 a person has intoxicated a sound mind, he shall not be permitted to 
 allege his own act to the excuse of his own offense. 
 
 § 23. In cases where insanity is alleged as a defense to the commis- 
 sion of a crime, it is frequently difficult to determine whether the de- 
 fense should apply to excuse and exonerate him from the responsibility 
 of the act or not. A mere weak mind, not really deranged, or non 
 compos mentis, or being led astray by facts and circumstances that mis- 
 lead him, will not avail to excuse him. While he acts with an oi-dinary 
 degree of mind upon actual facts and real circumstances, he must be 
 
 1 Wharton's 0. L. 42. s Pigman vs. State, 14 O. E. 655. 
 
CHAP. I.] CRIMES, ETC. 551 
 
 held accountable to human tribunals for the result of his own acts, and 
 he will only be excused when, by a deranged mind or judgment, he is 
 led astray by false facts and unreal and delusive circumstances. 
 
 § 24. It is, also, a very difficult matter to determine the degree of in- 
 sanity when a person's mind is so deranged as not to be criminally re- 
 sponsible for bis acts. A person may be insane on some subjects, and 
 rational on others. A person, thus partially insane, is criminally 
 responsible for his acts when his insanity is not connected with the 
 act, and did not prevent him from knowing that the act he was com- 
 mitting was a wrong and an evil. It has been said, that if the criminal 
 knew that he was acting contrary to law, his being under an insane de- 
 lusion that he was redressing some supposed grievance, or producing 
 some public benefit, will not exempt him from the guilt ; neither will 
 he be exempt by being under an insane delusion as to facts, provided 
 the supposed facts, if real, would not have justified the act ; but, on the 
 other hand, he will be exempt by such delusion, when the facts, if real, 
 ■would have justified the act.' But when insanity is proved or admitted 
 to exist, it then becomes necessary on the part of the prosecution to 
 show and satisfy the jury that the insanity did not affect the mind as 
 to the commission of the act, but that he was able to understand the 
 wrong and evil of his offense. 
 
 § 25. II. Infants may be of so immature a mind as that they may 
 be irresponsible upon the same principle as in the last class of cases, — 
 an insufficient degree of mental capacity to be criminally responsible. 
 But infancy includes all persons who are under majority, which, by 
 the common law, was fixed at twenty-one years of age ; but criminal 
 responsibility attaches at a much earlier age. Within seven years 
 of age there can be no conviction of a capital or other high crime ; 
 he may be chastised by his parents or tutor, but cannot be criminally 
 punished, because, on account of the supposed want of maturity of 
 mind to understand, he cannot be guilty. Between seven and fourteen 
 years of age it has been determined that it is to be presumed, unless 
 the contrary is shown, that he is incapable ; but such persons may be 
 guilty of a crime or not dependent upon their degree of understanding. 
 If they were found to be of a sufficient degree of understanding to 
 know good from evil and to appreciate the right and wrong of the act, 
 they might be found guilty. After the age of fourteen, the common 
 law presumed an infant to be of sufficient intellect to be criminally 
 responsible; but that was always subject to inquiry, and depended 
 upon his capacity to know and understand the right and wrong of the 
 case. 
 
 § 26. III. A married woman, or feme covert, it seems, is in most 
 
 I See 4 Stephens's Com. 78. See, also, 10 0. S. li. 598. 
 
552 CRIMINAL LA W. [book iv. 
 
 cases excused when acting under the control and with her husband. If 
 a wife joins with her husband in the commission of a crime less than 
 murder, it is presumed that she acted under his control and coercion.^ 
 But when the act is committed of her own voluntary act, or by the 
 bare command of her husband in his absence, or when the crime is 
 murder, or great atrocity, or one of the higher crimes that are viola in 
 se, she will not be so excused, though in his company and by his com- 
 mand. The same excuse might prevail in favor of children and others 
 under the command and control of their superiors, whom they are ordi- 
 narily bound to obey, in cases that are merely mala prohibita, and 
 not mala in se, and which manifest no great intention of wickedness, 
 than an honest obedience to the command of others who are their 
 superiors. 
 
 § 2T. IV. There are other cases, under the circumstances of which 
 the law will excuse an act that would be otherwise criminal, on ac- 
 count of the absence of a criminal intention, or done by compulsion, 
 as — 1. In those cases, for instance, committed without a criminal inten- 
 tion or the result of an accident or an innocent mistake, which the law 
 terms misadventure, in which case the actor is not criminally respon- 
 sible, because he did not do it willfully, and was unconscious of a wrong. 
 But if the actor was in the commission of another unlawful act, in 
 which he accidentally was the means of effecting a higher offense, he 
 will be guilty of a crime, for the law in that case will not bold him 
 guiltless, for he was in the commission of a criminal offense, and the 
 degree of the criminality of the unintentional act will depend on the 
 criminality of the first act, whether it was an act that was in itself 
 malum prohibitum or malum in se. But if the deed occur in the midst 
 of innocent intention, or in the defense of one's self or his property, or 
 that of his domestic relations, which, with due regard to his rights, he 
 could not avoid, such unintentional or unavoidable act or result would 
 be executed as a misadventure, or justifiable act." 
 
 § 28. 2. In those cases where the act is done from motive of com- 
 pulsion of either force or duty, as where the party is constrained to the 
 commission of the act by a species of compulsion or necessity which in 
 the common law is called duress per minas, or threats and menaces 
 which induce a fear of present death, or other grievous bodily harm, 
 which takes away the guilt of many crimes and misdemeanors,^ as 
 where a person is thus compelled m act by robbei's, a mob, or rebels, 
 to commit acts against his will which would admit of no excuse under 
 peaceable circumstances. But duress per minas is not an excuse for 
 every species of crime ; for such fear will not excuse murder, for he 
 
 ' Wharton's C. L. 53; Davis vs. State, 15 0. E. 72. 
 
 2 Wheaton's 0. L. 386. s 4 gteph. Com. 83. 
 
CHAP. 1.] CBIMES, ETC. 553 
 
 ought rather to die himself tlian to escape by committing such atrocious 
 deed as the killing an innocent person. 
 
 § 29. 3. There is another species of criminal acts that are excused in 
 law on the ground of actual compulsion, — not by actual force or fear 
 of it, — but by that which results from reflection and choice, and acts 
 upon and constrains his will, so that he is thereby obliged to commit 
 an action, which, but for such constraint, would be a criminal offense. 
 Of this sort is the case where a man, by command of the law, is 
 bound to assist in the arrest of another who has committed some atro- 
 cious criminal act, or to disperse a mob or riot, and resistance is made 
 to his authority, if in overcoming the resistance he should beat or wound, 
 or necessarily kill one of those who so resist, rather than to permit a 
 murderer, for instance, to escape, or the riot to continue ; for the arrest 
 of such malefactors and the preservation of the public peace are of such 
 consequence to the public welfare, that such unfortunate results would 
 be excused as in cases of misadventure. So, too, where a rebellion is 
 so successful as to become a government de facto, though ultimately 
 put down, a person who acts by the command of such illegal govern- 
 ment may be excused, though his acts are subsequently held to be void. 
 An officer, in the due exercise of his office, executing the legitimate com- 
 mand of the government or court, would be justified and excused by 
 such command, though it should afterward be determined that the 
 command was erroneous or void. 
 
 PEINCIPAL AND ACCESSORY. 
 
 § 30. In the perpetration of a crime there may be more than one 
 person concerned, all of whom may be denominated accomplices ; but 
 as they may be implicated in a more immediate or remote degree of 
 guilt, or more directly or remotely engaged in the criminal act, this 
 causes the persons accused to be distinguished and classified in various 
 respects as to their relation to the perpetration of the crime. They are 
 first distinguished as principal and accessory; and principals are again 
 distinguished as principal in the first degree, or principal in the second 
 degree ; and accessories may be distinguished as an accessory before 
 the fact, or accessory after the fad. 
 
 § 31. Principal in the first degree is he who directly and absolutely 
 perpetrates the act, but he who is present aiding and abetting the prin- 
 cipal in the commission of the act is principal in the second degree. His 
 presence need not always be an actual immediate standing by, within 
 sight or hearing of the fact, but there may be a constructive presence, 
 as where one commits the crime and another keeps watch or guard at 
 a convenient distance. This constructive presence may be carried still 
 further, as in case of poison prepared and administered by an innocent 
 
554 CBIMINAL LA W. [book iv. 
 
 person in his absence, but at his instigation ; so where one entices the 
 owner away at a distance from his house, while an accomplice commits 
 a burglary, he is constructively present at the burglary, arid is a prin- 
 cipal in the second degree, though not actually present. Although the 
 law thus distinguishes between the principals in the firat and second 
 degrees, yet when convicted, their punishment is the same, unless the 
 law makes a positive exception or provision to the contrary. 
 
 § 32. An accessory is he who is not the chief actor in the offense, nor 
 present at the perpetration, but is in some way concerned in the com- 
 mission of the crime, either before or after the offense is committed. 
 There is a natural difference in this distinction between the principal 
 and the accessory, though by the common law, in cases of treason, — 
 by a peculiar course of reasoning, — accessories were not admitted to 
 exist, but made all concerned principals ; and it also did not distinguish 
 between culprits in misdemeanors in this respect, as to their being ac- 
 cessories, but made all concerned principals in all crimes below the 
 degree of felony. 
 
 § 33. The distinction made in the common law between accessories 
 before the fact and those after, is this : the former is he who having been 
 absent at the time of the commission of the crime, yet procured, coun- 
 seled, or commanded another to commit it. It is therefore necessary that 
 he should be absent, for if he be either actually or constructively present, 
 he then becomes principal. An accessory after the fact is where a per- 
 son, knowing of the commission of a crime, still receives, relieves, com- 
 forts, or assists the criminal. In order to make the accessory thus 
 guilty, ex post facto, it is requisite that he should know that the crime 
 had been committed, and that the party in question was guilty of it. 
 He who renders the criminal any assistance or aid, or assists in his 
 escape, is generally made culpable as an accessory after the fact. 
 
 § 34 Accessories, upon conviction, are usually subject to the same 
 penalties as the principal. The common law, however, gives the fol- 
 lowing reasons for making these distinctions between the principal and 
 accessory in the commission of crimes : — 1. To distinguish the nature 
 and denomination of the crime charged, that the accused may know 
 what he is charged with, and how to defend himself; for the charge of 
 the actual commission of a crime, as the commission of a robbery, is a 
 very different accusation from the charge of having advised or encour- 
 aged the perpetration of the crime in the absence of its commission, or 
 of having harbored the robber after the act had been committed. 2. 
 Because by the common law no person could be tried as an accessory 
 until the principal had been convicted, or tried at the same time. 3. 
 Because, although in many instances an accessory is subject to the same 
 penalty as the principal, they are usually, by the court at least, treated 
 with less severity than the principal who actually perpetrated the crime. 
 
CHAP. 1.] CRIMES, ETC. 655 
 
 § 35. In Ohio our statute makes the aiding, abetting, or procuring 
 a crime to be committed, a substantive, independent offense, and it 
 is not necessary that the principal should be convicted before the 
 accessory is tried and convicted.' Similar provisions are to be found in 
 the statutes of the United States and most of the States.^ Under the 
 term accomplice may be included all who are, in any manner, associated 
 in the commission of the crime, whether as principals or accessories. 
 
 SOUECE OF CRIMINAL LAW. 
 
 § 36. The enacttments of criminal punishment and the institution of 
 criminal prosecution are, usually, the work of an independent sover-. 
 eignty. That independent sovereignty here is the State of Ohio, as it 
 is with each of the other States, respectively, at least as to all matters 
 appertaining to what ordinarily concerns personal rights and protection 
 of person and property. These cover nine-tenths, if not ninety-nine- 
 hundredths of all that concerns our personal rights and liberties ; but 
 still there are those enactments of the United States that concern only 
 those subjects connected with our national affairs, — foreign relations, 
 commercial intercourse abroad and among the several States, as has 
 been seen when treating of the several powers and jurisdiction of the 
 State and Federal governments.' Each of these have their several in- 
 terest and duties to enforce and protect by their relative criminal and 
 penal enactments. These harnionize with each other as a well-regu- 
 lated machine, — each having its own proper functions to perform, — 
 without any serious collision and as a harmonious whole. This double 
 government is able thus to act harmoniously, because their several 
 powers and jurisdiction are so well defiued, — the State to all those rights 
 and powers incident to sovereign authority, except those which are ex- 
 pressly confided to the Federal government, and the latter, none except 
 those express powers, or what may be necessary and proper for the 
 due exercise of such delegated powers. 
 
 1 Act of March 7, 1835. 1 Curwen, 195, J 36. Amended in the act of 
 March 24, 1864. S. and S. Stat. 267. See Noland vs. State, 19 O. K. 131. 
 
 2 Wharton's C. L. 60. 
 
 * See ante, book i. Federal and State Governments. • 
 
556 CRIMINAL LA W. [book it. 
 
 CHAPTER II. 
 
 CRIMINAL OFFENSES AND THEIR CLASSIFICATION. 
 
 § 1. Public offenses must be necessarily classified and arranged, in 
 order to the better understanding of them, and that each maybe defined 
 and explained. Our statutes arrange them more ia relation to their 
 atrocity, and the amount of penal sanction attached to them, than to 
 the nature of the several objects they are intended to enforce and protect. 
 Thus, the statutes arrange crimes and misdemeanors into those of the 
 "first class, punished by death or imprisonment in the penitentiary ;" 
 " second class, punished by imprisonment in the county jail, or fine, or 
 both ;" and " third class, minor offenses." Bat instead of this statu- 
 tory arrangement, a more natural division and classification can be 
 made by arranging the several criminal offenses according to the 
 several objects which they were intended to protect and enforce. They 
 may be divided into three great divisions, thus : — I. Those against the 
 Nation and State ; II. Those against the public interest and welfare ; 
 and III. Those against private persons and property. 
 
 I. CKIMES AG4.INST THE NATION AND STATE. 
 
 § 2. Our form of government is divided, as has been already stated, 
 into two great departments, — first, that of the United States fdr 
 national purposes, which concern the Union and the general welfare 
 of the whole — foreign and domestic; and second, that of the State, 
 which controls all ordinary sovereign powers not delegated to the Fed- 
 eral government and all municipal interests, public and private. Our 
 system of criminal law will, therefore, refer to one or the other of these 
 two great powers, for the prosecution and enforcement of their several 
 provisions, dependent upon which, the special matter of governmental 
 or municipal affairs may refer. It will be proper, therefore, in each 
 class of cases, to consider first those crimes and offenses which relate to 
 the Federal government; and secondly, those which relate to the 
 State, which latter will include the great bulk of all the crimes and 
 offenses. 
 
 § 3. I. Treason against the United States. The first great crime 
 against the government is that which threatens its existence, and which' 
 the government is compelled to enforce and punish for its own self-pro- 
 tection and preservation. This is treason, which consists of attempts 
 
CHAP. II.] CRIMES AND THEIR CLASSIFICATION. 557 
 
 to subvert or overthrow the government by treachery to one's patriotic 
 duty and allegiance. " By the ancient common law," it is said, " there 
 was a great latitude left in the breast of the judges to determine what 
 was treason or not so, whereby the creatures of tyrannical princes 
 had opportunities to create abundance of constructive treason, — that 
 is, to raise by forced and arbitrary construction, offenses into the crime 
 and punishment of treason which were never suspected to be such.'" 
 Therefore, the English, at an early day in their judicial history, resorted 
 to an express and positive statute," as to what constituted treason, and 
 thereby exclude for the future such cases of constructive treason. This 
 statute has been there modified and improved by the British Parlia- 
 ment from that day to the present, until the law of treason now there 
 rests upon principles of justice and humanity consistent with the pro- 
 gress of civilization. 
 
 § 4. This induced the framers of the Constitution of the United States, 
 in the spirit of true republican liberty and political safety, to declare — 
 " Treason against the United States shall consist only in levying war 
 against them, or in adhering to their enemies, giving them aid and com- 
 fort. No person shall be convicted of treason unless on the testimony 
 of two witnesses to the same overt act, or on confession in open court.'" 
 In pursuance of this provision of the Constitution, Congress has en- 
 acted by statute, — "If any person owing allegiance to the United States 
 shall levy war against them, or shall adhere to their enemies, giving 
 them aid and comfort within the United States or elsewhere, and shall 
 be convicted on confession in open court, or on the testimony of two 
 witnesses to the same overt act of treason of which he stands indicted, 
 such person shall be adjudged guilty of treason against the United 
 States, and shall suffer death."* ... " If any person, having knowledge 
 of the commission of any such treason, shall conceal, and not, as soon 
 as may be, disclose and make known the same to the President of the 
 United States, or some one of the judges thereof, or the President or 
 governor of a particular State, or some one of the judges or justices 
 thereof, such person on conviction, shall be adjudged guilty of mis- 
 prision of treason, and shall be imprisoned not exceeding seven years, 
 and fined not exceeding one thousand dollars." By the definition of 
 treason as given in the Constitution, it is limited, in the first place, to 
 the levying of war against the United States ; and secondly, to adhering 
 to the enemies of the United States, giving them aid and comfort. 
 
 § 5. 1. Treason by levying war. The words levying war are con- 
 sidered to be of the same import with the words raising or creating 
 
 1 4 Blackst. Com. 75 ; 4 Sleph. Com. 184. 
 
 " 25 Edward III. c. 11. 
 
 » Const. U. S. art. ill. sec. 3. * Act 30th April, 1790, sec. 1. 
 
558 CRIMINAL LAW. [book iv. 
 
 war: and that these terms also comprehend making war or carrying on 
 war. To constitute this specific crime, war must be actually levied 
 against the United States. However flagrant the crime may be of con- 
 spiring to subvert by force the government of the country, such con- 
 spiracy is not treason. To conspire to levy war, and actually to levy 
 war, are different offenses. Yet if an army be actually raised for the 
 avowed purpose of carrying on an open war against the United States, 
 and subvert the government, it must be an overt act of levying war in 
 a person, who as a commissary, or any like capacity, who never saw 
 the army, but who, knowing its object, and leaguing himself with the 
 rebels, and supplying the army with provisions, or by recruiting or 
 other acts of aid in carrying on its operations, although he may never 
 have been in camp, still performing the particular act assigned him.^ 
 
 § 6. It is not the intention, it is said, to determine that no individual 
 can be guilty of this crime who has not appeared in arms against his 
 country ; on the contrary, if war be actually levied, — that is, if a body 
 of men be actually assembled for the purpose of effecting by force a 
 treasonable purpose, — all those who perform any part, however minute, 
 or however remote from the scene of action, but who are actually 
 leagued in the general comspiracy, are to be considered as traitors. 
 But there must be an actual assembling of men for the treasonable pur- 
 pose to constitute a levying of war.'' 
 
 § 7. If a body of men conspire and meditate an insurrection to resist 
 or oppose the execution of any statute of the United States by foi'ce, 
 they are only guilty of a high misdemeanor ; but if they proceed to 
 carry such intention into execution by force, they are then guilty of 
 treason by levying war. To march in arms with a force, committing 
 acts of violence or devastation, in order to compel the resignation of a 
 public officer, and thereby render ineffective an act of Congress, is high 
 treason. But an insurrection for the purpose of throwing down the 
 inclosure of a particular manor, park, common, or the like; or upon a 
 mere quarrel between private persons ; or to deliver one or more par- 
 ticular persons out of prison, who are not imprisoned for treason ; or 
 holding a house by force against the sheriff and his posse comilatus, is 
 no treason.' 
 
 § 8. 2. Adhering to the enemies of the United States, giving them 
 aid and comfort. The general principles and reasoning as to the levy- 
 ing war are equally applicable to this branch of the subject. The same 
 distinction as to the intention and object of the combination or force 
 used, is applicable to those who give them aid and comfort, as to 
 
 > 4 Cranch's E. 470 ; 2 Burr's Trial, 401. 
 
 ' Wharton's Or. Law, 773; ex-parte, Bollraan, 4 Cranoh, 126. 
 
 » Wharton's Cr. Law, 774. 
 
CHAP. II.] CRIMES AND THEIR CLASSIFICATION. 559 
 
 whether the object to be accomplished was a resistance to the govern- 
 ment, or the attainment of some private object : the first might be trea- 
 son, while the latter might only be a riot or a riotous assembly. Those 
 who are aided must have. first levied war in order to be such public 
 enemy. But if those who are aided or comforted be public enemy, 
 their joining them in acts of hostility against the country, or even against 
 their allies, or joining, aiding, or comforting such enemy, though no 
 actual hostility has then been committed by them, or raising troops for the 
 enemy, or supplying them with means or intelligence, although such 
 aid or intelligence be intercepted and never reach them, — these are 
 cases of adhering to the enemies of the United States, and the parties 
 are guilty of high treason under the Federal Constitution. When the 
 accused were constrained to acts of this liind, nothing will excuse but 
 well-founded fear of life, — pro timore mortis. 
 
 § 9. The Constitution and laws of the United States, in order to pro- 
 tect persons accused of treason from being convicted upon slight evi- 
 dence of their guilt, require that the conviction shall be only had upon 
 confession in open court, or on the testimony of two witnesses to the 
 same overt act of treason whereof such person shall stand indicted. 
 But it is doubted whether the common law principle, that in treason 
 all are principals, — there being no accessories, — was applicable to the 
 United States under the constitutional restrictio'n, though in States 
 where common law crimes were enforced, it is considered that the 
 common law in this respect was not altered under the State prose- 
 cution. Although the confession of a defendant out of court is insufiS- 
 cient evidence to produce a conviction, but when an overt act of 
 treason has been proved by two witnesses, it may be admitted as a 
 corroboration. 
 
 §10. II. Treason against the State. It has been contended by some 
 jurists that since the adoption of the Federal Constitution there can be 
 no treason against a State ; for allegiance and treason, so far as the 
 State is concerned, have been merged in the government of the United 
 States, and therefore any treason against the State becomes at once 
 treason against the United States as the paramount authority. " From 
 the nature of the Federal Union," writes a distinguished jurist,' " a 
 levying of war against one member of the Union is a levying of war 
 against the whole ; therefore it is concluded that treason against the 
 State being treason against the United States, it is punished by their 
 laws and in their courts." In accordance with this opinion, there had 
 been no provision in the statutes of Ohio for many years until just on 
 the eve of the late secession and rebellion, when a statute was enacted 
 to punish treason against the State.' 
 
 ' Mr. Edward Livingston, in a report to the legislature of Louisiana. 
 
 2 See the act of ApriF 26, 1861, Iviii. vol. Stat. 110; S. & S. Revised Stat. 261. 
 
560 CRIMINAL LA W. [book iv 
 
 § 11. Bui this view of the law of treason against the State has not 
 been very satisfactory to many jurists, and from it the VFriter particu- 
 larly dissents. The object of the one government and its functions are 
 entirely different and distinct from those of the other. Whatever hap- 
 pens in a State that does not interfere with the government of the Union 
 or its operations, does not concern the United States. Some States 
 have laws regulating the granting of licenses for marriage, and others 
 do not, and it is a matter that does not at all concern the United States. 
 To raise a large body of men with arms and strong hands to resist a law 
 or statute, is levying war against the sovereign power that enacted the 
 law, and would be an overt act of treason against it. To do this to resist 
 and put down the marriage license law would be treason against ihat 
 particular State, but would be a matter that would not concern the Fed- 
 eral government. Though the offense might be punished as a riot or 
 as a resistance to the officers of the State, yet it was treason against 
 the State, in which the United States were not concerned, and to the 
 policy of the law some of the other States were opposed. 
 
 § 12. In accordance with the latter opinion, has been prosecuted some 
 most important cases of treason against the State,' in which it has been 
 held that treason against the State and against the United States are 
 to be distinguished the one from the other by the immediate object and 
 designs of the conspirators. If the blow be raised only at the interest 
 and municipal regulations or institutions of a State, without any design 
 to disturb it in the discharge of any of its functions under the Consti- 
 tution of the United States, it is treason against the State only, though, 
 if the object be to prevent it from discharging those functions due to the 
 Federal government, it became treason against them also." 
 
 § 13. In accordance with these opinions, the legislature of Ohio, at 
 the commencement of the late rebellion, passed an act punishing trea- 
 son, which provides — " That any person residing in this State, who 
 shall levy war against this State or the United States, or shall know- 
 ingly adhere to the enemies of this State or the United States, giving 
 them aid and comfort, shall be deemed guilty of treason against the 
 State of Ohio, and, on conviction, shall be imprisoned in the peniten- 
 tiary at hard labor during life.'" The same statute further provides to 
 punish specific act of treason, as to betray any post, fortification, etc. to the 
 enemy of either the State or of the United States; or shall supply arms, 
 etc. to such enemies, etc., or give information, etc., shall be deemed 
 guilty as accessory to treason, and, on conviction thereof, shall be im- 
 
 1 Sea Dorr's case in Ehode Island ; People vs. Lynch, 11 Johnson's N. Y. K. 
 549 ; the Shay's case in Massachusetts ; also, 2 Wharton's Cr. Law, I 2767, etc. 
 
 2 See the opinion of G. J. Durfec in Dorr's case, in Wharton's Or. Law, J 2774, 
 and Story's opinion. Ibidem, § 2768. 
 
 » See ante, I 10, n. 2. 
 
CHAP. II.] CRIMES AND THEIR CLASSIFICATION. 561 
 
 prisoned in the penitentiary at hard labor not less than ten nor more 
 than twenty years. The same statute further provides that if any per- 
 son within this State shall begin or set on foot, etc. any unauthorized 
 military expedition, etc., to be carried on from thence against the terri- 
 tory or people of any of the United States, .... shall be deemed 
 guilty of a misdemeanor, and, on conviction thereof, shall be impris- 
 oned in the penitentiary not less than one nor more than ten years. It 
 also provides, as the Constitution of the United States provides, as to 
 two witnesses and confession to be only in open court. 
 
 § 14. The States of Massachusetts, New York, Pennsylvania, Vir- 
 ginia, and others have always retained some statute law to punish 
 treason. That of Massachusetts is this : " Treason against this com- 
 monwealth shall consist only in levying war against the same, or ad- 
 hering to the enemies thereof, giving aid and comfort." . . . . " Every 
 person who shall commit the crime of treason shall suffer the punish- 
 ment of death for the same." The other States that have statutes 
 against treason have laws very much like that of Massachusetts and 
 the present law of Ohio. 
 
 § 15. Offenses against the government less than treason. There 
 are numerous offenses against the government in relation to its lawful 
 authority, which do not amount to treason, which under other denomi- 
 nations are punished as crimes. These may be offenses against either 
 the Federal or the State government as they may affect or relate to one 
 or the other, or both. The student should here bear in mind, what has 
 already been elsewhere said, that the object and jurisdiction of the 
 Federal government were to attend to national and foreign affairs, 
 while that of the State was principally domestic, civil, and municipal. 
 The Federal government represents the nation, and the general affairs 
 of the whole Union, and therefore many offenses which otherwise 
 would appear only to affect ordinary affairs and belong to the State 
 government, but because of their immediate effect upon the general 
 government, or the affairs of the Union, they may be crimes punish- 
 able under the authority of the United States, as well as their being 
 offenses punishable under the State authority. Of these there may be 
 enumerated riots, unlawful assemblages, resistance and abuse of officers 
 and lawful authority, conspiracies, etc. Also offenses relative to mat- 
 ters specially committed to the keeping of the Federal government, as 
 the post-office, the coinage and circulating medium, the commerce, for- 
 eign and between the several States, and the like instances. These, 
 under the Federal Constitution, become specially, if not exclusively, 
 connected with the national affairs, and any criminal violation of them 
 becomes an offense against the Federal government. 
 
 § 16. Over these crimes Congress and the courts of the United States 
 assume a jurisdiction, yielded to them either on account of its being 
 
 36 
 
562 CRIMINAL LA W. [book it 
 
 expressly given to them, or as being necessary and proper for the pur- 
 pose of carrying on their express powers. Over many of the same 
 subjects the State sometimes exercises a concurrent jurisdiction ; it is 
 therefore important and interesting to ascertain where the State may 
 have a concurrent jurisdiction, and where the United States have an 
 exclusive jurisdiction over the whole of such subject. It is said that 
 the Federal government may exercise an exclusive jurisdiction in three 
 cases, — 1, where, in express terms, an exclusive authority is granted; 2, 
 where the powers granted are inhibited to the States ; and 3, where 
 the exercise of an authority granted to the Union would be contrary 
 or repugnant to its being exercised by the State.^ 
 
 § 17. Yet in cases where the United States have such exclusive 
 jurisdiction over the subject-matter, still the State may, in relation to 
 such matters, regulate and punish acts collateral to them, injurious to 
 the interest and welfare of the State and its people, in such manner as 
 it may deem expedient not inconsistent with that exercised by the 
 Federal courts. Thus, the whole power of coining money, regulating 
 its value, etc. is given to the United States ; this does not prevent a 
 State from passing a law to punish the offense of circulating counter- 
 feit coin of the United States.^ When this question was before the 
 Supreme Court of the United States, the court took a distinction be- 
 tween the offense of coining counterfeit money, and putting in circula- 
 tion such false representation of money. " There exists,'' says the 
 court, " an obvious difference, not only in the description of these 
 offenses, but especially also in their characters. The former is an 
 offense directly against the government, by which individuals may be 
 affected ; the other is a private wrong, by which the government may 
 be remotely, if it will be in any degree, reached." May not the ques- 
 tion be further illustrated thus ? Suppose that Congress, being desirous 
 of restraining the officers from any improper interference with the citi- 
 zens of the States, in order to keep them from becoming obnoxious to 
 the people of the State, should pass a law to punish any act of such 
 officer in an assault, or an assault and battery, on any citizen of the 
 State, and the same time there was a State law against the offense of 
 the assault and battery. Now the object of the act of Congress and the 
 State are very different. The object of the first was to preserve har- 
 mony between the officers of the United States and the people of the 
 State ; but that of the latter was to preserve the peace and tranquillity 
 of the State, and their punishment of the offense might be very different 
 with each. The courts of the United States would punish the offense 
 with a view to preserve harmony toward the government of the 
 
 1 See the Federalist, No. 82; Pox vs. Ohio, 5 Howari's U. S. E. 439. 
 » Fox vs. Ohio, 5 Howard's IT. S. E. 410. 
 
CHAP. II.] CRIMES AND THEIR CLASSIFICATION. 663 
 
 Union, while those of the State would punish the offense with a view 
 of preserving the peace and the administration of justice in the State. 
 The punishment or the fine, in the one case, is no satisfaction in the 
 other. 
 
 § 18. There may be, therefore, two distinct prosecutions for the same 
 subject-matter, but different description of offense ; as one under the 
 laws of the United States, for coining or making counterfeit money, and 
 the other under the State laws, for the offense of circulating such false 
 and counterfeit coin. The same suggestion was made in relation to the 
 acts of treason, which, in some points of view, were against the Federal, 
 and in others against the State, government, but against each in a dif- 
 ferent point of view.' In these cases of concurrent jurisdiction there 
 may be a conflict, and a double prosecution of different parts of the 
 same acts, and the question has been put, Shall the offender be twice 
 prosecuted and punished? The answer is, That though it is the same 
 act, it is not the same offense, — the one is against the United States and 
 the other against the State. But it is not probable, with the comity 
 that always prevails between the two systems of government and juris- 
 diction, that these difficult questions in practice would ever occur, or 
 would be but a very remote incident. It is not at all probable that the 
 two jurisdictions will ever embarra.ss each other, by conflicting pardons 
 to the accused, or other adversary proceedings. No such abuse has 
 ever occurred, or is likely to occur. But such double prosecutions are 
 not unfrequent in the conflict of jurisdiction between one State and 
 another, and between a State and the Federal government, without 
 any collision in the result. When the mode of punishment is a fine or 
 imprisonment, the culprit may be subject to the payment of the penalty 
 of his offense to each government, in view of the different wrongs that 
 his offense may have done to each jurisdiction. It is not readily seen 
 how the payment of a fine to the one government can be a satisfac- 
 tion of the penalty due to the other, for each are due to different gov- 
 ernments. And, it is to be apprehended also, that the government 
 which first commences prosecution and actually obtains jurisdiction 
 over the accused, would have the right to carry the case through ; and 
 then it would become a question of State policy with the other govern- 
 ment whether or not it should also prosecute their branch of the 
 case.' 
 
 1 See ante, J 10 of this ch. 
 
 » See Mr. Stanbery's argument, and Justice Daniel's decision in Fox vs. Ohio, 
 5 Howard's U. S. E. 420 and 434. 
 
564 CRIMINAL LA W. [book iv. 
 
 CLASSIFICATION OF CONGEESSIONAL STATUTORY OFFENSES. 
 
 § 19. Besides the crime of treason, there are a variety of crimes and 
 offenses declared by the acts of Congress, and like those under the Con- 
 stitution, must relate to the general affairs of the Federal Union, they 
 necessarily partake of the character of the government and nation, it 
 therefore becomes proper to notice them here. The acts adopted by 
 Congress, in pursuance of the jurisdiction given it by the Constitution 
 for the punishment of crimes and offenses, may be classed under two 
 heads : — first, those statutory offenses that directly relate to objects of 
 Federal jurisdiction ; and secondly, those statutoiy offenses which 
 arise under the constitutional provision to exercise exclusive legislation 
 over places, forts, etc. ceded to the United States, and in reference to 
 which the statute provides, that if any offense shall be committed in 
 any such place, such offense shall, upon conviction in any court of the 
 United States having cognizance thereof, be liable to and receive the 
 same punishment as the laws of the State, in which such place so ceded 
 is situated, provide for the like offense, when convicted within the body 
 of any county of such State. 
 
 § 20. The first class of cases thus specially given to Congress by the 
 Constitution, and enumerated in its statutes, are warranted by tho 
 special grant of delegated power to punish in these four classes of cases 
 (in addition to treason), namely : — 1, offenses against the law of na- 
 tions ; 2, offenses committed upon the high seas ; 3, offenses relating 
 to the public securities and currency; and 4, offenses the jurisdiction of 
 which may be implied in the grant to enact all laws necessary and proper 
 for carrying into execution the powers vested by the Constitution in the 
 government of the United States. The crimes and offenses thus declared 
 and punished by the acts of Congress may be collected under these six 
 general heads : — first, those offenses against the laws of nations ; sec- 
 ondly, offenses committed on the high seas ; thirdly, offenses against the 
 Federal government ; fourthly, offenses against the public securities and 
 currency; fifthly, offenses against the persons and property of individ- 
 uals in their relation to the Federal government; and sixthly, offenses 
 against public justice where the Federal government may be concerned. 
 
 §21. I. Offenses against the laws of nations are exclusively given to 
 the government of the United States, as the representative of the Union 
 and nation, having in charge our foreign affairs and whatever concerns 
 our intercourse with other nations. There is much, therefore, to justify 
 the classification of all the criminal laws of the United States under this 
 head. Those which more directly are such, and intended by these acts 
 of Congress to be punished as such offenses, may be thus arranged : — 
 1. Doing any species of violence to any foreign ambassador or foreign 
 
CHAP. II.] CBIMES AND THEIR CLASSIFICATION. 565 
 
 minister or their domestics, or prosecuting any suit or writ against such 
 foreign o£Bcers, and render such proceedings void. 2. Violating any 
 safe-conduct or passport issued under the authority of the United States. 
 And 3. Accepting a commission in the service of a foreign state against 
 a state at peace with the United States ; or setting on foot within the 
 United States any military expedition against a state at peace with the 
 United States, thereby endangering the peace, justice, and neutrality 
 of the nation. These statutes generally authorize the court to punish 
 the offender by a fine, at the discretion of the court, and imprisonment 
 not to exceed three years.^ Violation of safe-conducts or passports, or 
 acts of hostility committed against such as are in amity, league, or 
 truce with us, and who, in such cases, are under an implied general 
 safe-conduct, are breaches of public faith, without the preservation of 
 which there can be no intercourse or commerce between one nation and 
 another. Such offenses may, according to the writers on the law of 
 nations, says Blackstone, be a just ground of a national war. 
 
 § 22. II. Offenses committed upon the high seas are punished by 
 numerous statutes of the United States, and they embrace the follow- 
 ing offenses and may be enumerated thus:^ — (1) Piracy — being the 
 crime of robbery and depredation upon the high seas — is an offense 
 against the universal law of society, and the pirate deemed the enemy 
 of the human race. He is therefore considered to have renounced all 
 benefits of civilized society and government, and to have declared war 
 upon all mankind, so th^t all may treat him as an enemy, and bring 
 him, wherever caught, to subjection and punishment, without regard to 
 the protection of his nation or naturalized government. By the com- 
 mon law piracy consisted in committing those acts of robbery and depre- 
 dation upon the high seas, which, if committed on land, would have 
 been felony.' The act of Congress punishing this offense provides, if 
 any person shall commit upon the high seas, out of the jurisdiction of 
 any particular State,* murder or robbery, or any other offense which, 
 if committed within the body of a county, would be punished with 
 death ; or if any captain or mariner of any ship or other vessel shall 
 piratically and feloniously run away with such ship or vessel, or anj' 
 goods or merchandise to the value of fifty dollars, or yield up such ship 
 or vessel voluntarily to any pirate ; or if any seaman shall lay violent 
 hands upon his commander, thereby to hinder and prevent his fighting 
 in defense of his ship or goods committed to his trust, or shall make a 
 revolt in the ship, every such offender shall be deemed, taken, and ad- 
 
 1 See 1 Wharton's Cr. Law, I 175. 2 4 Stephens's Com. 243. 
 
 3 4 Stephens's Com. 245. 
 
 ■• It is upon the high seas, when on any waters out of the State jurisdiction. 
 When the oflFense was committed within the jurisdiction of the State, it is not 
 within the statute of U. S. 2 Wharton's Cr. Law, J 2816 and notes. 
 
566 CBIMINAL LA W. [book it. 
 
 judged to be a pirate and felon, and being thereof convicted, shall suffer 
 death ; and the trial of such crimes committed on the high seas, or in 
 any place out of the jurisdiction of any particular State, shall he in the 
 district where the offender is apprehended, or into which he may be 
 first brought.' The same act of Congress makes it piracy to commit 
 any such act on the high seas under any pretense of a commission or 
 authority from any foreign prince or state, and subjects accessories be- 
 fore the fact to the same punishment — death ; and those after the fact, 
 to imprisonment not exceeding three j-ears, and a fine not exceeding 
 five liundred dollars. 
 
 § 23. (2) These statutes declare other offenses connected with the 
 high seas as piracies, or declare them high misdemeanors, and severely 
 punish them. Those offenses declared as piracy are — 1st. Acts connected 
 with the slave-trade. 2d. Acts of casting vessels away and defrauding 
 underwriters, etc. And the most prominent of those cases which are 
 punished by imprisonment or fine, or both, are — 1. To commit man- 
 slaughter on the high seas, or to confederate with, or attempt or 
 endeavor to corrupt any one to commit an act that would be piracy. 
 2. To commit any act of violence against the person or property on 
 board a vessel on the high seas. 3. To enforce police regulations and 
 prevent violence. And the statute also provides that if any offense 
 shall be committed on board of any ship or vessel belonging to any citi- 
 zen of the United States, while lying in any port or place within the 
 jurisdiction of any foreign state or sovereign, such offense shall be cog- 
 nizable and punished in the courts of the United States, as though com- 
 mitted on the high seas. 
 
 § 24. III. Offenses against the Federal government below that of trea- 
 son are quite numerous, so that here they can only be classified — 1. As 
 the offense of misprision of treason, which is concealing the fact, or neg- 
 lecting to disclose it, where a person knows that treason has been com- 
 mitted. 2. Holding treasonable correspondence with a foreign govern- 
 ment. 3. Raising and fitting out expeditions against other countries and 
 thereby endangering the neutrality and the peace of the United States. 
 4. Offenses against and endangering the post-office and its arrange- 
 ments. 5. Forging or counterfeiting any public securities, treasury 
 notes, or orders, etc., or uttering the same as genuine. 6. Offenses 
 against the coinage or currency of the United States. And in this man- 
 ner is protected by penal laws every interest of the Federal government, 
 and everj' interest of its people in connection therewith. Beyond this 
 there shall be no enumeration of the laws of the United States, which 
 principally relate to the administration of public justice, and the protec- 
 tion of the person and property of individuals, in connection with the 
 
 1 Act of Cong. April 30, 1790; 2 Wharton's Cr. Law, ? 2816. 
 
CHAP. 11 ] CRIMES AND THEIR CLASSIFICATION. 567 
 
 Federal government, which are very much in character with the State 
 laws of that kind hereafter enumerated in relation to the State. In ref- 
 erence to the laws of the United States, the student is referred to one 
 of the numerous Digests of the Laws of the United States for a more 
 particular enumeration and description of these penal laws. 
 
 II. OFFENSES AGAINST THE PUBLIC. 
 
 § 25. Having treated of those offenses directly aimed at the govern- 
 ment, it now comes in turn to treat of those against the public as affect- 
 ing their welfare and prosperity in general, without any particular 
 antipathy against the government itself, and of those laws by which 
 they were enacted, intended to promote and establish justice, peace, and 
 prosperity in the State. In doing so, the criminal laws of the State sliall 
 be the guide in the enumeration, and where the description of the offense 
 given in the statute will be insufiScient to afford a full understanding of 
 the offense, the common law description or definition of it will also be- 
 given. These- offenses may be arranged and classified under these five 
 heads: — I. Those against justice ; II. Against the public peace; III. 
 Against public trade ; IV. Against religion ; and V. Against morality. 
 
 I. CRIMES AGAINST PUBLIC JUSTICE. 
 
 § 26. 1. The great and fearful crime against public justice \s perjury ; 
 for without truth there is no such thing as the due administration of 
 justice, and without it the government itself becomes worthless and a 
 mere illusion. At common law it was defined to be the willful taking 
 of a false oath by one who, being lawfully sworn by a competent court 
 to depose the truth in a judicial proceeding, swears absolutely and 
 falsely in a matter material to the point in question.' 
 
 § 27. To constitute perjury according to the common law, it must be 
 willfully false. If the witness be honestly mistaken in a fact and thus 
 swears to something which in point of fact was otherwise, he is not 
 guilty of perjury, for the false swearing must be corruptly and wick- 
 edly done ; but should he thus swear recklessly, and from a corrupt 
 motive, to a matter that he had no foundation to believe to be so ; or 
 swears that he believes a matter which he clearly must have believed 
 otherwise ; or swears to a fact that he has no knowledge of, or does not 
 know to be true, — whether in point of fact it was true or not, — he may 
 in any of these instances be guilty of perjury. But usually, when the 
 witness swears only to his belief, it is difficult to produce a conviction, 
 for the difficulty there is to prove it to be false and that he knew better; 
 
 1 See 2 "Wharton's Cr. Law, § 2198, etc., and authorities there cited; 4 Ste- 
 phens's Com. 267. 
 
568 CRIMINAL LAW. [book iv. 
 
 therefore little reliance should be put in such testimony, dependent upon 
 only what the witness says is his belief. The false matter should be 
 sworn to absolutely or positively, and not doubtingly, in order to its 
 being perjury, for otherwise it would be doubtful whether his testimony 
 was given corruptly or not. 
 
 § 28. It must also be, in order to render the false swearing a perjury, 
 that he was lawfully sworn by a competent court or authority, and that 
 it should be in a matter material to the point in question. The com- 
 mon law took no notice <yl false swearing as a perjury, unless the oath 
 was administered by some court or officer duly authorized to adminis- 
 ter it, and in some proceeding relative to a civil suit or a criminal prose- 
 cution ; and such false swearing must not only be in a judicial proceed- 
 ing, but in a matter material to the point in question, for all oaths not 
 thus characterized are disregarded, as of no consequence, or as not having 
 any legal validity. If the oath is made before a tribunal or an officer 
 who has no jurisdiction or authority in the matter ; or if it was a vol- 
 untary matter not required in any judicial proceeding ; or in a matter 
 not material to the issue or matter in question, it would be what is 
 termed an extra judicial oath, and could not be the foundation of a crimi- 
 nal prosecution for perjury ; for as such an oath was neither required 
 nor authorized, so the common law neither regarded it nor gave it its 
 protection. 
 
 § 29. The statutes of Ohio,' in defining and describing the crime of 
 perjury, carry it, in particular instances, far beyond the common law, 
 so that it would include all cases of perjury at common law, but extend 
 it to cases where the law authorizes an oath or affidavit to be made in 
 a matter pending, or which may depend, or to establish any account or 
 bill of particulars to be presented to any administrator, or person, or 
 tribunal authorized to receive it, and sworn to or affirmed before any 
 authority authorized to administer an oath, and declare that any per- 
 son who shall willfully and corruptly depose any matter to be a fact, 
 knowing the same to be false, or deny any matter to be fact knowing 
 the same to be true, shall be deemed guilty of perjury, and upon con- 
 viction, shall be imprisoned in the penitentiary, at hard labor, not more 
 than ten nor less than three years. 
 
 § 30. However heinous the offense may be in a moral or religious 
 point of view, it is not subject to a criminal prosecution for perjury to 
 violate or falsify an oath taken voluntarily as an extra judicial, or as 
 an oath of office to perform official duties, and the like, where the party 
 swears, — not to what is past as an existing fact, but to what will or 
 shall be done. Nor will an oath taken in one State be noticed as per- 
 jury in another. 
 
 > Act of March 7, 1835, ? 9 ; 2 Wharton's Cr. Law, 2 2195. 
 
CHAP. 11.] GRIMES AND THEIR CLASSIFICATION. 569 
 
 § 31. A kindred offense is that of subornation of perjury, which ia 
 the offense of procuring another to take such a false oath as constitutes 
 perjury in the principal. ' Our statute declares that, if any person 
 shall persuade, procure, or suborn another to commit willful and corrupt 
 perjury, he shall be subject to the same penalty as in cases of perjury. 
 
 § 32. 2. Another great offense, lying at the very foundation of justice 
 and all judicial proceedings, is that of bribery. It is where a judge, or 
 other persons connected with the administration of justice, takes a cor- 
 rupt reward to influence him in the discharge of his duty. There are 
 few offenses to justice so offensive as this, or one that brings the admin- 
 istration of justice and all civil government so much into disrepute and 
 contempt; it may, therefore, be looked to as treason against justice and 
 all civil government. Of all the like crimes it is the most odious, and 
 places every one connected with it as the meanest. Although in the ill- 
 administered governments of ancient times, and in the East, this offense 
 became common, and justice became quite venal, still, all good govern- 
 ments reprobated it. In Athens, those who took presents for doing 
 their duty, as well those who offered the bribe as those who took it, 
 were all equally punished.'' 
 
 § 33. The statute provides, in the most comprehensive terms, for the 
 conviction and punishment of all persons engaged in this infamous 
 offense. It embraces, in the most particular manner, all persons and 
 officers who shall either offer, give, or promise anything, or shall in any- 
 wise solicit, accept, or receive anything, with the intent thereby to in- 
 fluence any officer or public agent in his vote, or election, or decision in 
 any matter, thing, contract, or duty: such officer, agent, or other person 
 so convicted shall be fined not less than the amount or value of the 
 thing so promised, offered, or given, or so solicited, accepted, or received, 
 nor more than three times its amount or value, or be imprisoned in the 
 county jail not more than thirty days, or both ; and if an officer or pub- 
 lic agent, maybe removed from office.' This statute of Ohio is so com- 
 prehensive as to include all persons engaged in the offense, and to in- 
 clude all kind of cases of bribery and corruption. And so, under the 
 common law, the offense included all concerned, either as actor or 
 receiver in bribery, or attempt at bribery of an elector or officer, judi- 
 cial or executive.* 
 
 §34. 3. Another offense against public justice consists in officers 
 neglecting or refusing to perform their official duties. It may be 
 difficult to reach judicial officers by an ordinary criminal prosecution, 
 
 1 4 Steph. Com. 268. ' 4 Steph. Com. 270. 
 
 ' Abstract from the act, March 19, 1860; 2 Wharton's Cr. Law, J 2813 (f). The 
 TJ. S., and every State, have some statutes against hribery. 
 * 4 Steph. Com. 270 ; 2 Wharton's Cr. Law, ? 2815. 
 
570 CRIMINAL LA W. [book it. 
 
 but they are liable to impeachment. But the statutes amply provide 
 for the punishment of all ministerial and executive officers vsrho neglect 
 or refuse to perform their duties, or are guilty of willfully injuring or 
 oppressing another under color of office, or assuming to be an officer 
 without an authority, or refusing to assist an officer when properly 
 called on to do so, as in cases of riots, affrays, and the like. 
 
 § 35. 4. The offense of resisting or abusing any judge, justice, sheriff, 
 constable, or other officer, in the execution of his office, is punished by 
 our statute. So, also, is the offense of aiding or assisting an offender to 
 escape from lawful custody, or the rescuing or attempting to rescue an 
 offender from such custody. 
 
 § 36. 5. The offense of perverting justice and making it a means of 
 oppression, as where any judicial or ministerial officer, or an attorney 
 of any court, shall stir up or encourage any suit, quarrel, or controversy 
 with intent to injure the person litigating, or if any officer knowingly 
 take any unlawful fees.' Such is the care that our statutes take in 
 restraining all offenses against public justice and keeping pure its admin- 
 istration. 
 
 II. OFFENSES AGAINST THE PUBLIC PEACE. 
 
 § 3'!. Offenses against the public peace are such as tend to produce 
 commotion and terror, or violence, danger, or bloodshed, and are usually 
 comprehended under the terms of riots, routs, unlawful assemblies, 
 affrays, forcible entry and detainer of real property, challenges to fight, 
 carrying concealed weapons, and libels. Some of these are crimes and 
 punished because they are actual violence and breach of the peace ; 
 others, because they have a direct tendency to that result. 
 
 § 38. 1. Biots, routs, and unlawful asssmblies were offenses at com- 
 mon law, and are generally punished in this country by statute. (1) 
 A riot is a tumultuous disturbance of the peace by three or more per- 
 sons assembling together of their own authority, with the intent to assist 
 one another against any one who shall oppose them in the execution of 
 some private enterprise, and afterward executing the same in a violent 
 and turbulent manner, to the terror of the people, whether the act in- 
 tended were, of itself, lawful or unlawful. It may be observed, that if 
 such offensive proceedings were directed against the government itself, 
 it might be an act of treason and rebellion. In order, therefore, to keep 
 such tumultuous and unlawful acts within the mere offense of a riot, 
 it is necessary that the object or enterprise should be of a private 
 nature. And, in order that it should be a riot, it is essential that the 
 previous assembling should be unlawful ; for, if the assembling were 
 lawful, as, upon a summons to assist an officer in the execution of 
 
 • Under this head, as well as others, it is not the intention to enumerate all the 
 Btatntos in relation to it, or to recite them in precise language. 
 
CHAP. II.] CRIMES AND THEIR CLASSIFICATION. 571 
 
 lawful process, their subsequent illegal conduct will not render them 
 riotous. 
 
 § 39. i%) A rout is a disturbance of the peace by persons assembling 
 together with an intent to do a thing which, if it be executed, will make 
 them rioters, and actually make a movement toward the execution 
 thereof. 
 
 § 40. (3) An unlawful assembly consists of any meeting of great 
 numbers of people, with such circumstances of terror as cannot but 
 endanger the public peace and raise fears and commotion among the 
 people.^ 
 
 § 41. These three offenses are kindred in their character and object, 
 and are frequently combined. It is said in a case, that it was immate- 
 rial in a case of riot, charged in the usual form, whether the facts proved 
 established the defendant's guilt of a riot, rout, or unlawful assembly, 
 for they were kindred offenses, and the greater includes the less. In 
 such case, therefore, a general verdict of guilty was supported, although 
 the evidence established no more than an unlawful assembly.^ The 
 statute of Ohio is sufficiently comprehensive to embrace them all ; and 
 the being lawfully assembled, and agree to do an unlawful act, and 
 make any movement therefor.' 
 
 § 42. 2. Another class of offenses against the public peace may be 
 affrays and forcible entry and detainer. These are made public 
 offenses on account of their great tendency to create a breach of the 
 peace and terror to the people. (1) An affray is the fighting of two 
 or more persons in some public place to the terror of the citizens. It 
 means something like a mutual contest, suddenly excited, without any 
 apparent intention to commit any great bodily harm. There may be a 
 quarrel, and a criminal assault and battery, without its being an affray, 
 as where it happens in a private place, out of the public view, except 
 to the parties concerned, in which case it cannot be said to be the terror 
 of the people. This offense may result, or be included in some other, 
 as a riot, or another offense be included in this, as an assault and battery, 
 so that the offense may be punished under some other denomination. 
 There are similar crimes which are punished under other names and 
 other laws, as prize-fights and duels, which are so highly injurious 
 to the peace and morals of the community. 
 
 § 43. (2) Forcible entry and detainer, which is committed by taking 
 possession by force and violence; or, after an unlawful possession has 
 been taken, keeping possession of lands and tenements with menaces, 
 force, and arms, and without authority of law. In Ohio this offense is 
 remedied by a civil action. But in most instances, where actual vio- 
 
 1 4 Steph. Com. 278; 2 Wharton's Or. Law, ?2473. 
 
 a 2 Wharton's Or. Law, § 2477, and n. h. s See the act March 8, 1831. 
 
572 CRIMINAL LAW. [book iv. 
 
 lence is used, the offense will include other offenses that may be prose- 
 cuted and punished as such, as riot or assaVilt and battery. All violence 
 used by any individual, for the recovery of even one's rights, is -strictly 
 discouraged by the law, and every one is required to appeal to the aid 
 of the law in all cases where right cannot be obtained without violence 
 and in a peaceable manner. 
 
 § 44. (3) A third class of offenses against the public peace are such 
 as are not accompanied with violence but are punished on account of 
 their extreme tendency to produce violence and breach of the peace ; 
 of such are libels and challenges to fight. 1. A libel is a malicious 
 publication, expressed either in printing or writing, or by signs or pic- 
 tures, tending either to injure society generally, or to blacken the mem- 
 ory of one dead, or the reputation of one living, and expose him to 
 public hatred, contempt, or ridicule.^ The malice of the publication is 
 the essence of the wrong, and its tendency to excite violence and breach 
 of the peace, the ground of offense. A written calumny being so much 
 more obnoxious than a verbal one, is the reason why a libel is not, like 
 the latter, left to a civil redress instead of a criminal prosecution. But 
 throughout the civilized world it has been subject to such criminal 
 action, more or less guarded from abuse and oppression. 
 
 § 45. The terms of our statute in punishing libel do not materially 
 differ from the above definition, and fix the penaltj'-, — a fine not to 
 exceed five hundred dollars, — and moreover be liable to the party in- 
 jured. While the laws of Ohio thus punish a wanton and malicious 
 libe], they, on the other hand, by the constitution and laws, give full pro- 
 tection to all just and reasonable latitude to publish the truth and justi- 
 fiable matter, and full rational liberty to the press. 
 
 § 46. The constitution of Ohio provides that " every citizen may 
 freely speak, write, and publish his sentiments on all subject.?, being 
 responsible for the abuse of the right; and no law shall be passed to 
 restrain or abridge the liberty of speech or of the press. In all crimi- 
 nal prosecutions for libel, the truth may be given in evidence to the 
 jury, and if it shall appear to the jury that the matter charged as libel- 
 ous is true, and was published with good motives, and for justifiable 
 ends, the party shall be acquitted.'"' And at common law the publi- 
 cation was privileged, or might be justified or excused when made in 
 good faith in the ordinary transactions of business or social affairs, as by 
 a representative in the legislature, or a lawyer in his case, or a trades- 
 man in relation to the credit of a customer ; these and the like commu- 
 nications are privileged or excusable when made bona fide and without 
 malice. 
 
 1 2 Wharton's Cr. Law, ? 2528. 
 ' Ohio Constitution, art. 1. g 11. 
 
CHAP. 11.] CRIMES AND THEIR CLASSIFICATION. 573 
 
 §4T. 2. A challenge to fight under any circumstances or in any 
 manner, is an offense both at common law and under our statute. The 
 offense attaches to any one who is engaged in making the challenge, 
 -without reference to where the intended fight is to be, or whether it 
 ever takes place ; for if it takes place, it may become an entirely differ- 
 ent and higher offense ; as where death ensues, all may be guilty of 
 murder, either as principals or accessories. Of late the statutes en- 
 deavor to reach every special case, so as to bring within them every 
 possible offense of this kind. 
 
 III. OrPENSES AGAINST PUBLIC TRADE. 
 
 § 48. All are interested in the public trade, — in its protection and 
 security as a matter of political economy as well as individual interest. 
 Trade is a matter of extensive concern, and it may be either foreign or 
 domestic ; it may be between or among the several States, or it may 
 be within and confined to a particular State. Offenses may be com- 
 mitted against the public in any or all these relations. Whatever relates 
 to our foreign trade, or that between and among the several States, 
 more particularly belongs to the jurisdiction of the United States, as 
 offenses against laws regulating exports and imports, and the tariff; or 
 the money or currency of the country ; or the post-office, or the weights 
 and measures, and the like matters ; all of which have been, for the 
 purpose of this work, sufficiently treated of. But incidentally many 
 objects connected with these matters are within the jurisdiction of the 
 State concurrently, as well as that vast amount of the domestic trade 
 confined to and within the State as its exclusive jurisdiction. Of these 
 offenses may be enumerated those — 1. Against laws intended to regulate 
 the imports and exports and secure a revenue, and which are usually 
 termed smuggling. 2. Against cheat and fraud. 3. Against usury. 4. 
 Against licenses. And 5. Those against railroads, canals, highways, 
 and the like means for carrying on trade and transportation. 
 
 § 49. 1. Smuggling is the offense of secretly and clandestinely trans- 
 porting and passing goods or property to evade the payment of duties 
 or taxes, or in violation of revenue law, or to evade prohibition or regu- 
 lations as contraband of trade. These offenses are principally connected 
 with the imports and exports of the country, and are therefore prin- 
 cipally regulated by the laws of the United States. But similar offenses 
 exist against the laws of the State, committed for the purpose of evad- 
 ing the payment of dues and taxi'S, or police regulations, and are pun- 
 ished in various ways by flues, forfeitures, etc. 
 
 § 50. 2. Cheats anA frauds against trade were punished at common 
 law, and were described to be such cheats as affect, or may affect, the 
 public, and effected by deceitful or illegal practices, against which'com- 
 
574 CRIMINAL LAW. [book iv. 
 
 men prudence could not have guarded.' The several States have enacted 
 numerous and various statutes to prevent and punish cheat and fraud 
 in trade. They are usually such as are effected by false weights and 
 measures, false money and currency, false marks and brands, false bills 
 of lading and warehouse receipts, and obtaining money and property 
 under false pretenses. Usually fraud and cheat are left to be redressed 
 by civil action ; but those which become common and are easily effected 
 by gross misrepresentation and violation of confidence, and are danger- 
 ous to public trade and honest dealing, are endeavored to be reached 
 and punished by these various statutes, with a view of securing confi- 
 dence and honest dealing in public trade and traffic. 
 
 § 51. 3. Offenses against the laws of usury are subjects of deep inter- 
 est in the matters of trade, upon which there is great diversity of opin- 
 ion, as well as great diversity of laws in the several States. The laws 
 of Ohio have changed from those highly penal to those the most liberal. 
 The law now provides that where money is withheld past due, or 
 where interest is to be paid without stipulating the amount, the rate of 
 interest shall be six per cent, per annum ; but the parties are at liberty to 
 stipulate for the payment of any rate of interest agreed upon in any writ- 
 ten contract, not to exceed eight per cent. There is no penalty against 
 usury here, except that no interest can be collected by law above six 
 per cent, except where there is a special stipulation to pay a different 
 rate of interest, not to exceed eight per cent., and where interest exceed- 
 ing that amount has been paid, the excess may be recovered back. 
 Where banks and banking corporations are allowed by their charters 
 to take interest at a certain rate, an obligation taken by them for the 
 repayment of money lent with a stipulation for a larger amount of inter- 
 est, the obligation becomes void as contrary to their charter, and is 
 therefore illegal. This, seems to be the only case where there is a 
 forfeiture of the debt on the account of usury in Ohio ; but such penal 
 forfeitures are common in other countries. 
 
 § 52. 4. Offenses against license laws are the subject of frequent pen- 
 alties, as in cases of license under laws regulating taverns, ferries, 
 auctions, and the like. Such licenses, issued for the purpose of regula- 
 ting the due exercise of trade, are sometimes issued as a matter of police 
 regulation, and at others as a mere matter of revenue, and at others 
 they are on both accounts. These laws are more or less penal, depend- 
 ent upon the amount of interest the violation of them is to the public. 
 
 § 53. 5. Offenses against laws for the regulation of the proper man- 
 agement of railroads, canals, and highways. These are objects directly 
 connected with public trade as its means of transportation, and the 
 vehicles by which its business is carried on. For the purpose of regu- 
 
 1 2 Wharton's Cr. Law, § 2056. 
 
CHAP. 11.] CRIMES AND THEIR CLASSIFICATION. 675 
 
 lating these in various ways, and preserving them from abuse, various 
 penal laws are enacted punishing various offenses. Such are the lavs's 
 in relation to transportation of passengers and freight, to warehouse 
 and warehousemen, and to the transit and passage of carriages on high- 
 ways. These objects require various enactments for their regulation, 
 and numerous penalties for their enforcement, which should be learned 
 by a reference to those laws themselves. 
 
 IV. Oi'PENSES AGAINST KELIGION. 
 
 § 54. The laws of Ohio give no more protection to one religion than 
 to another, but protect all religious meetings from disturbance and 
 interference by others, and protect every person in the free enjoyment of 
 his religion according to his own conscience, although the laws are en- 
 acted upon the principles and in accordance with the Christian religion, 
 but without any particular opposition or annoyance to any other. The 
 statutes of Ohio contain penal law to punish the following offenses on 
 this subject, viz.: to punish any person who shall at any time interrupt 
 or molest any religious society, or any member thereof, or any persons 
 when meeting or met together for the purpose of worship, or perform- 
 ing any duties appertaining to them as members of such society. And 
 upon any such disturbance any justice of the peace may proceed sum- 
 marily to arrest and punish the offender. The statute also punishes pro- 
 fane swearing and breach of the Christian Sabbath, by secular works or 
 sports, works of necessity and charity only excepted. These provisions 
 amply protect all religious denominations without distinction, except 
 that they protect the Christian Sabbath, and punish profanity without 
 distinction of sects. 
 
 V. OPPENSES AGAINST PUBLIC MORALS. 
 
 §55. The public are deeply interested in the strict preservation of 
 the morals of the community in rigid virtues, and freed from the con- 
 tamination of dissipation and licentiousness. For this purpose all coun- 
 tries have adopted laws more or less rigorous, to protect and foster the 
 morals of their people. The character of a people for morality, virtue, 
 and intelligence, — and these are inseparable qualities, — constitutes what- 
 ever is admirable in a country ; its artificial beauties are only evidence 
 of their existence, and without them a-11 natural beauty is worthless, for 
 what is a country but its people ? Penal offenses of this character, in 
 this country, may be thus arranged, in accordance with their impor- 
 tance: — 1. Those in regard to the intercourse of the sexes. 2. Those 
 in relation to temperance. 3. Those affecting industry or encouraging 
 idleness. 4. Those in relation to education and intelligence. 
 
576 CRIMINAL LA W. [book it. 
 
 § 56. In regard to the intercourse of the sexes, the offenses are : — (1) 
 The infamous crime of rape, which is, having carnal knowledge of a 
 female, forcibly, and against her will. By our law this offense is graded 
 thus : — where the female is a daughter or sister of the offender, the 
 penalty is confinement in the penitentiary for life. Where the injured 
 person is any other female, the penalty is the penitentiary not less 
 than three nor more than twenty years ; but where the offense is com- 
 mitted by a male over seventeen years of age upon an insane female, 
 not his wife, knowing her to be insane, penitentiary from three to ten 
 years. 
 
 § ST. (2) Incest, which is a crime of great offense, is usually con- 
 fined to a criminal intercourse in this relation between persons con- 
 nected by near consanguinity ; but by the statute of Ohio step-parent 
 and children are included within the terms of this offense as well as 
 those related by blood. The statute declares that if any step-father 
 shall have such intercourse with his step-daughter, or a step-mother 
 with her step-son, having knowledge of their relationship, or any father 
 with his daughter, or any brother and sister, being of the age of sixteen 
 years or upward, such persons having such intercourse together, know- 
 ing their consanguinity, are guilty of a misdemeanor, and shall be, on 
 conviction, imprisoned in penitentiary at hard labor, not more than ten 
 nor less than three years. When this offense is proved, consent does 
 not excuse it, — nothing but the want of knowledge on the part of the 
 step-relation, or the want of knowledge of their consanguinity in the 
 persons so near akin, where the party accused is over the age of six- 
 teen years. 
 
 § 58. (.3) Offenses against the marriage relation are the next class of 
 offenses to be enumerated under this head. They are — 1. Bigamy, 
 which is, where a person, having a husband or wife living, shall marry 
 another person, such person is, on conviction, subject to a penitentiary 
 imprisonment for a term not less than one nor more than seven years. 
 But the law excludes cases where the first husband or wife shall be 
 continually and willfully absent for the space of five years together, and 
 unheard from, next before the second marriage. The cases seem to 
 establish that in order to convict of bigamy the first marriage must be 
 a legal and binding marriage ; therefore where such first marriage was 
 contracted before the person was of sufficient age to contract marriage 
 by law, that is, males under eighteen years of age, and females under 
 fourteen, unless confirmed by cohabitation after those ages, it will not 
 suffice to produce a conviction on a second marriage. Nor will such 
 alleged first marriage answer the purpose, where it was a void mar- 
 riage, because the party at the time of its being performed had still 
 another husband or wife living. But a marriage is valid, though 
 solemnized by a person without authority, where the parties consented 
 
CHAP. II.] CRIMES AND THEIR CLASSIFICATION. 577 
 
 to the marriage and then followed it up by cohabitation as such husband 
 and wife.' A valid marriage in a foreign country is sufficient to sustain a 
 conviction on account of a second marriage here ; but where the second 
 was abroad, it would not sustain the prosecution here, for the reason 
 that the offense of the second marriage was out of the jurisdiction of 
 the court.^ 2. Another offense against the marriage relation is that of 
 adultery. This offense can, strictly, only be alleged against a married 
 woman; for when alleged against a man who had an illicit intercourse 
 with an unmarried woman, it is a, fornication. A sexual intercourse be- 
 tween a married woman and a man, not her husband, is punished as an 
 offense against the marital right of the husband, as well as an offense 
 against the public, and is called adultery, because of its tendency to palm 
 upon the husband a false and adulterated issue. 3. Fornication and 
 illicit cohabitation are also punished, for the purpose of preserving virtu- 
 ous domestic relations and the public morals from licentiousness. 
 
 III. OFFENSES AGAINST PERSONS AND PROPERTY. 
 
 § 59. The great offense against a person is that of the destruction of 
 his life. The law guards the life of every human being with anxiety, 
 and protects it with care; so that every person who by any means may 
 have taken the life of another must answer for it criminally, unless he 
 can show that it happened from circumstances that either justified or 
 excused the act. Wherever the life of any person is taken by another, 
 in law it is termed a homicide, and it may be either a criminal homi- 
 cide or one that is justifiable or excusable. Criminal homicides are 
 either murder or manslaughter. These various degrees of homicide 
 will be treated of in the following order : 
 
 §60. 1. JIfi(riier at common law is where a person of sound memory 
 and discretion unlawfully kills any reasonable creature in being, and in 
 the peace of the State, with malice aforethought, either expressed or 
 implied.' Like all other crimes, it must be accomplished by a person of 
 sound mind and discretion, for, as elsewhere said, an unsound mind is 
 incapable of committing any crime ; and ordinarily it must also be 
 upon a reasonable creature. But the means by which the wicked act 
 is accomplished may be various, as by poisoning, wounding, drowning, 
 starving, or any other means by which human life can be destroyed. 
 But as the offense must be correctly described in the indictment, for the 
 purpose of informing the accused of what he is charged, therefore, when 
 it is charged that the death was produced by one species of killing, as 
 
 1 Shaffer vs. State, 20 O. K. 1 ; Carmichael vs. State, 12 0. S. E. 553. 
 
 2 Wharton's Cr. Law, § 2627. 
 
 s 4 Stephens's Com. 115; 1 Wharton's Cr. Law,.§ 930. 
 
 37 
 
578 CBIMINAL LAW. [book it. 
 
 by beating and wounding, it cannot be sustained by proving a totally 
 different species of death, as by drowning or starving ; but if it only 
 differ as to kind of weapon of the same species, or the degree of injury 
 or wound, the difference is immaterial. 
 
 § 61. The killing must be committed with malice aforethought in order 
 to make the act murder. Malice is a necessary ingredient in constitu- 
 ting the crime ; but it need not be a particular malice toward the 
 deceased, for it may be manifested by the commission of a wicked and 
 fatal act that endangered the lives of others. Intention is often judged 
 of by the acts of the doer ; and it is always presumed that the party in- 
 tended to do or produce what would be the natural consequence of his 
 act, and for such result he is responsible. Thus, if a person has an 
 infant or a feeble person in his care and keeping, and he recklessly and 
 wickedly exposes such ward so as to produce its death, though not 
 _ directly intended, it will be murder. The doing any act that endangers 
 or exposes the lives of others, or any act that is dangerous and a malum 
 in se, and death insues, the law imputes the malice of the intended act 
 to the result. 
 
 § 62. 2. Manslaughter is the unlawful and felonious killing of an- 
 other, without any malice, either expressed or implied. It is of two 
 kinds, — voluntary and involuntary. The first is where a person un- 
 lawfully kills another without malice, on a sudden quarrel or in the 
 heat of passion. Where, upon a sudden quarrel two persons fight, and 
 one of them kills the other, it is involuntary manslaughter ; and so if 
 on such occasion they go out into the field and fight there, so that no 
 deadly weapon be used, or other manifestation of a fatal design, as evi- 
 dence of malice ; for in the absence of such evidence of malice, the law 
 will consider it but a continued act of passion. If a person, upon being 
 grossly insulted or greatly provoked should immediately kill his aggres- 
 sor, without any special evidence of previous malice, it is manslaughter; 
 for it is neither excusable homicide, as in case of self-defense, nor mur- 
 der, as there is no evidence of previous malice. In such cases the law 
 regards the force of passion and the infirmities of human nature, and 
 therefore distinguishes, when such deadly acts are committed, between 
 those that are the result of acts which may justly be extenuated by a 
 sudden provocation and hasty passion, and those that are evidenced 
 by cool deliberation and previous intention. 
 
 § 63. Involuntary wiansZawjfWer happens when the killing is the con- 
 sequence of an unlawful act, not amounting to a felony at common law, 
 by accident and without intention or deliberation. When the unlawful 
 act is only a prohibited matter, malum prohibitum, carrying with it no 
 evidence of malice arising from such act, manifesting intention of great 
 mischief and danger, the unintentional killing is manslaughter; but 
 when accompanied by such evidence of malice, it is murder. Malice, 
 
CHAP. II.] CBIMES AND THEIR CLASSIFICATION. 579 
 
 either expressed or implied, is the essential ingredient of murder. But 
 when the act of killing was unintentional, in the course of doing a law- 
 ful act, it is a homicide by misadventure, and is excusable. 
 
 § 64. Next, the homicide may not be criminal, for in law it may be 
 eWaex justifiable ov excusable. The first occurs when the person who 
 did the act was lawfully in the performance of some official act or law- 
 ful duty, as when an officer executes the sentence of the law, or a per- 
 son lawfully aiding in the suppression of a riot, or prevention of a 
 crime, unavoidably and unintentionally kills another. It is excusable, 
 when a man doing a lawful act, without any intention to hurt, kills 
 another by accident, or in self-defense. The first can only be admitted 
 where it was clearly an accident without fault, and the latter where it was 
 in self-defense, and on account of the sudden attack, it could not be 
 safely avoided. Where the two persons mutually join in a sudden 
 strife and quarrel and one kills the other, it is criminal manslaughter ; 
 but if one is assaulted, and as a matter of unavoidable necessity, in order 
 to save his own destruction, kills his assailant, it is then an excusable 
 act ; but in such case he is bound to avoid the act if he can with safety. 
 
 HOMICIDE UNDER THE STATUTE. 
 
 § 65. Such was the common law doctrine on the subject of homicide ; 
 but the matter here is entirely regulated by statute, both as descriptive 
 of the offense and its punishment, and it declares, if any person 
 shall purposely, and of deliberate and premeditated malice, or in the 
 perpetration, or attempt to perpetrate any rape, arson, robbery, or bur- 
 glary, or by administering poison, or causing the same to be done, kill 
 another, he shall be deemed guilty of murder in the first degree, and 
 upon conviction shall suffer death. 
 
 § 66. Murder in the second degree is where a person shall purposely 
 and maliciously, but without deliberation and premeditation, kill 
 another; he shall, on conviction, be kept imprisoned in the penitentiary 
 at hard labor for life. And where a person shall unlawfully kill 
 another, without malice, either upon a sudden quarrel, or unintentionally, 
 while the slayer is in the commission of some unlawful act, he shall be 
 guilty of manslaughter, and on conviction shall be imprisoned in the 
 penitentiary at hard labor not over ten years nor less than one year.' 
 
 § 67. The statute also provides that if any person shall give a mortal 
 blow, or administer any poison to another, in any county within this 
 State, with intent to kill, and the party so stricken or poisoned shall 
 thereof afterward die in any other county or State, such person may 
 ,be tried and convicted for the offense of murder or manslaughter, as the 
 
 1 See the sUtute of March 7, 1835 ; 1 Wharton's Cr. Law, ? 924. 
 
680 CRIMINAL LAW. [book it. 
 
 case may be, in tbe county where such mortal blow was given, or 
 poison administered. This provision obviates the common law diffi- 
 culty, for, by it, where a man was wounded in one county and died in 
 another, the offender could be indicted in neither, because no complete 
 act of felony was done in any of them ; — so jealous was the common law 
 of the right of being proceeded against and tried in the county where 
 tbe offense was committed.^ 
 
 § 68. It seems to be settled, so far as intention is concerned, that in 
 order to convict of mllrder in the first degree tbe act must be com- 
 mitted "purposely and of deliberate and premeditated malice;" these 
 characteristics must exist in the case, or it cannot amount to murder in 
 tbe first degree. It is immaterial how long or short a time before the 
 act such purpose was formed, if continued to the consummation of the 
 act, so that it is done with deliberation and premeditation. These 
 qualifying words imply the act of the mind and will with a deliberate 
 and premeditated purpose ; the offense, therefore, cannot exist where 
 the mind was deranged so as to be incapable of reason, reflection, and 
 decision, or not under the control of tbe will. Therefore, where tbe 
 offender was non compos mentis, or the mind excited l)y great provoca- 
 tion and sudden quarrel, and with heated blood, the offense would not 
 be murder, for, in the first instance, it would not amount to a crime upon 
 the general principle, — the want of intellect, — and in the last case, the 
 want of deliberation and premeditation would reduce the offense to 
 manslaughter. But if the act was done purposely and maliciously, but 
 without deliberation and premeditation, then it would be murder in the 
 second degree.^ 
 
 § 69. It will be observed, that what constitutes murder or manslaugh- 
 ter, under our statute,isdifferentfrom thatof the common law. Under the 
 statute, in order to constitute the act, and make it murder in either the 
 first or second degree, it must have been done purposely and maliciously ; 
 it must have been intentional, for the unintentional killing, while in an 
 unlawful act, will not render it such, except when done in the perpetra- 
 tion, or attempt to perpetrate any rape, arson, robbery, or burglary, or 
 by administering poison, or causing the same to be done. But such 
 purpose or intention was not required to constitute the case murder at 
 common law, when perpetrated in the commission of another unlawful 
 act which was felony. By the statute such unintentional killing would 
 not be murder, but manslaughter, unless it was in tbe perpetration or 
 attempt to perpetrate one of the five crimes enumerated, which consti- 
 tute it murder in the first degree. Therefore, when compared with 
 the common law, the cases of murder under our statute are diminished,' 
 
 ' 4 Steph. Com. 371. 
 
 2 See 12 0. K. 43, 483 ; 2 0. S. K. 54 ; 10 Ibid. 598 ; 18 0. K. 469 ; 1 Whar- 
 ton's Or. Law, ? 925 and n. o ; O. Dig. 260. 
 
CHAP. II.] CRIMES AND THEIR CLASSIFICATION. 581 
 
 and manslaughter increased, so that some cases that would be murder 
 at commoD law, become manslaughter under the statute. 
 
 § 71. Mayhem, at common law, was such a bodily hurt as rendered 
 a man less able, in fighting, either to defend himself or to annoy 
 his adversary, and more severely punished than other bodily injuries. 
 We now have in our law no such crime depending upon this distinc- 
 tion, though our word maim be derived from mayhem. But our stat- 
 ute against bodily injuries is very comprehensive, and protects the per- 
 son from every violent injury, and punishes every bodily injury received. 
 This statute provides that if any person voluntarily, unlawfully, and 
 on purpose cut or bite the nose, lip, ear, or cut out or disable the tongue ; 
 put out an eye ; slit the nose, ear, or lip ; cut or disable any limb or 
 member of any person, with intent to murder, kill, maim, or disfigure 
 such person, such person shall be deemed guilty of a misdemeanor, and 
 upon conviction be imprisoned in the penitentiary, at hard labor, not 
 more than twenty years nor less than one year. 
 
 § Y2. Assault and battery are of the most frequent occurrence in 
 the commission of crimes. An assault, or an assault and battery, are 
 always involved in every offense of violence, or attempt at violence 
 against the person ; and, indeed, a person may be even convicted of an 
 assault or an assault and battery under a charge of a more aggravated 
 crime, for the reason that the former are included in the latter. This 
 may be the case in such cases as an assault with the intent to kill or to 
 commit some other crime, or false imprisonment; and these offenses are 
 all described, prohibited, and punished by our statute, as well as also 
 an assault with intent to commit murder, rape, or robber}'. 
 
 § 73. An assault is an intentional attempt, by violence, to do an injury 
 to another. It is setting upon another with intent to attack him, or in a 
 threatening attitude ; or striking at another within striking distance, or 
 any such actual attempt at violence, without committing it. For if the 
 blow or violence in the least reaches the person with the intent to in- 
 jure, however harmless it may turn out to be, it then not only includes 
 the assault, but it actually becomes a battery. But if the striking at 
 another, or the striking or wounding another, be accidental and not with 
 intention to do an injury, it is no criminal offense, though he who com- 
 mitted the act would be liable in a civil action to the injured party for 
 any damages sustained, although committed without any intention of 
 injury. 
 
 § 74. There are frequent cases which might be claimed to be assaults, 
 or assault and battery, but which, under the circumstances, may be jus- 
 tified or excused ; as where an officer takes one into his custody under 
 a lawful authority or a waiTant; or where a person interferes to pre- 
 vent a crime or some outrage ; or to defend his person or the posses- 
 Biou of his property ; or recapture and retake property which has been 
 
582 CRIMINAL LAW. [book iv. 
 
 unjustly and wrongfully takes away from him. In these and the like 
 instances a person may be justified or excused in using no more force 
 than was necessary and proper in the performance of his duty, or in 
 the defense of his own person, or those whom he ought to defend and 
 protect, being in his domestic relation, or in the defense and protection 
 of his property. But in all these instances care must be taken not to 
 exceed in force and violence what was necessary and proper under the 
 circumstances to enable him to perform his duties, or to protect and 
 maintain his rights ; for otherwise he would be liable both criminally 
 and civilly for any injury caused by such excess. Pleas in justification 
 in such cases usually contain the averment that he gently laid his bands 
 on the complainant — molliter manus imposuit. 
 
 § 75. Although a person has a right to defend his own person and 
 property, and retake his property wherever found, so that he uses no un- 
 necessary violence, yet he must be careful he commits no excesses or 
 breach of the peace, nor attempt to do so in cases of doubtful right ; for 
 the law discourages cases of violence where it can be well avoided, and 
 the taking of justice into one's own hands, but rather requires that there 
 should be an appeal to the aid of the law, which affords peaceable 
 redress for every injury. 
 
 § 76. Violence against the female part of our citizens, or against 
 the laws intended for their protection, as rape, which has been consid- 
 ered ; or an assault with intent to commit a rape ; or the attempt to pro- 
 duce abortion, with or without her consent; or to carnally know a 
 female child under the age of ten years, are all cases of criminal of- 
 fenses punished by our law ; and they have been enacted for the pro- 
 tection and well-being of the female portion of our community ; but for 
 a more particular account of them the student is referred to the statutes 
 and treatises on the subject. 
 
 CRIMES AGAINST PROPERTY. 
 
 § 77. Under this head will first be arranged such offenses as may 
 be committed against the habitation of individuals, and against those laws 
 which are intended for the protection of one's domicile, — his sacred 
 home, — such as arson and burglary, and then such as affect property or 
 tend to diminish its security, as larceny and robbery, malicious destruc- 
 tion of property, forgery, frauds, and embezzlement. These and the 
 like laws are enacted to give that security and protection to property 
 which all civil governments are bound to do, or become worthless. 
 
 § 78. I. Arson, at common law, is defined to be the malicious and will- 
 ful burning of the house or outhouse of another man. This offense is 
 looked upon in all countries as a crime of great atrocity and malignity, 
 and therefore greatly detested and punished. 
 
 § 79. The statutes of Ohio provide for the punishment of arson, and 
 
CHAP. 11.] CRIMES AND THEIR CLASSIFICATION. 683 
 
 declare that if any person shall willfully and maliciously burn, or cause 
 to be burned, any dwelling-house, kitchen, smoke-house, shop, barn, 
 stable, storehouse, warehouse, malt-house, stillery-house, mill, or pot- 
 tery, the property of any other person ; or any other buildings, the 
 property of any other person, of the value of fifty dollars, or containing 
 property of the value of fifty dollars; or any church, meeting-house, 
 court-house, work-house, school-house, jail, or other public buildings ; 
 or any ship, boat, or other water craft, of the value of fifty dollars ; or 
 any bridge of the value of fifty dollars, erected across any of the waters 
 withiu this State, he shall be deemed guilty of arson, and upon con- 
 viction thereof, shall be imprisoned in the penitentiary, at hard labor, not 
 more than twenty years nor less than one year. Another section of the 
 statute provides for punishment of setting on fire, or attempt to com- 
 mit any arson on any building or other property described above.' The 
 statute also in the like manner protects against arson of property insured ' 
 against loss by fire with the intent to prejudice the insurer.^ 
 
 § 80. It seems that it would not be arson for a person to burn his 
 own house, or one he holds by lease, if not done with the intention, and 
 it does actually burn another house ; or with the intention of its opera- 
 ting upon an insurance under the statute. To consummate this offense 
 it seems there must be an actual burning of some part of the house ; for 
 where the intention was to burn the house by setting fire to some paper 
 drying in some part of the house, which burned, but the fire went out 
 without burning anything except the paper, and no part of the house 
 itself was burned, it was held it did not amount to the offense of arson. 
 
 § 81. The burning must be maliciously and willfully done, for if it be 
 involuntary or by accident, it will be only a trespass or civil injury, and 
 therefore no negligence or misadventure will amount to arson. Where a 
 person was a trespasser on another's premises, shooting game, and un- 
 intentionally sets the premises on fire from his gun, which, as an acci- 
 dent, burns the house, it is not arson. But in England it has been held 
 that if a man intending to commit a felony, by accident set fire to an- 
 other's house, it would be arson at common law. And so it would be 
 if a person, intending to set fire to the house of one person, acciden- 
 tally sets fire to that of another ; or by willfully setting fire to his own 
 house, he burns the house of a neighbor; on the ground that the law 
 will imply malice in such case, where it was probable, from the situa- 
 tion of the neighbor's hou.se, that the fire would communicate to it.' 
 And, also, the law would probably imply that he intended to do what 
 was the probable consequence of what he did. 
 
 § 82. II. Burglary is another crime against personal residence, 
 
 1 See statute March 7, 1835, § 12, 13. ^ Statute Miirch 20, 1860. 
 
 3 2 Wharton's Cr. Law, I 1663. 
 
584 CBIMINAL LAW. [book iv. 
 
 which, at common law, is the breaking and entering the dwelling-house 
 of another in the night, with intent to commit some felony within the 
 same, whether the felonious intent be executed or not. The statute of 
 Ohio punishes the crime of burglary, and defines it very much after the 
 terms of the common law, but enumerates a large number of different 
 buildings and places where the crime may be committed, as in the case 
 of arson ; but makes the breaking and entering with intent to kill, rob, 
 commit rape, or with intent to steal property of any value, or to com- 
 mit any deed made criminal by the statute, subject to imprisonment in 
 the penitentiary from one to ten years. The statute also punishes 
 the breaking and entering unlawfully the like buildings and places both 
 in the daytime or night season, with intent to commit certain crimes 
 therein mentioned. These statutes, by threatened punishments, amply 
 protect all residences and places of business from such burglarious 
 breaking and entering with intent to commit a crime. 
 
 § 83. To constitute the breaking and entering, there must be some 
 displacing, moving, or opening a door, or window, or something that 
 closed the house or building ; for it must appear that the doors were 
 shut and the house closed, so that it could not have been entered with- 
 out removing something which constituted a part of the inclosure of 
 the house. But any such removing, as raising a latch, raising a win- 
 dow, pushing open a door, when held there by fastening of any kind, 
 or removing a board for the purpose of entering, is a sufficient break- 
 ing, for there need be no actual violence. If there be such an opening 
 as that the burglar could enter without opening a door, or window, or 
 removing anything that constituted the inclosing of the house, the en- 
 tering could not constitute a burglary.' 
 
 § 84. The principle is that any entrance by means of opening and re- 
 moving any part of that which constituted a part of the fastening and 
 closing of the house, in the manner that a house is usually closed, is a 
 burglarious breaking and entering; therefore, entering through the 
 chimney, when the house was otherwise closed, was determined to be a 
 burglary. So, also, where the house was inclosed by a fence, or in- 
 closure, forming a yard to the dwelling, called curtilage, the entering of 
 the house by means of breaking the gate to the inclosure will be the 
 same as such entry by the door of the house, for the reason that the 
 curtilage is considered a part of the inclosure and protection of the 
 house ; but where the inclosure was for the benefit of other establish- 
 ments as well as for the house, and the house itself had a door opening 
 directly to the street, such inclosure did not have the privilege of the 
 curtilage, and the entering by breaking the gate did not constitute it a 
 burglary. But in case the outside door or gate be open, so that the first 
 
 1 2 Wharton's Cr. Law, ? 1535-43. 
 
CHAP. II.] CRIMES AND THEIR CLASSIFICATION. 685 
 
 entrance was without any breaking, yet, if after such entrance, the bur- 
 glar turns a key or raises a latch of a chamber door with the intent of 
 committing felony there, it is burglary. 
 
 § 85. Where there has been such breaking, the entrance may be 
 effected by an arm, or a hook, or by shooting in for the purpose of ac- 
 complishing the felonious intent. Where the law or statute require 
 that the offense should have been committed in the night season, the 
 rule is, that this season extends from the termination of daylight, 
 when the counteuance ceases to be reasonablj' discerned, to early dawn 
 of the next morning. But the crime of burglary, or any unlawful 
 breaking, or entering a house, or other buildings, under our statute, will 
 depend upon its peculiar wording, which must be carefully observed, 
 though the common law principles governing the crime will greatly aid 
 in forming a correct conclusion as to the statute. The statute pun- 
 ishes the malicious breaking and entering a house, etc. with intent of 
 committing a crime in the daytime, as well as in the night season, 
 only it is more severe on the latter, and specially denominates it bur- 
 glary. 
 
 § 86. III. Larceny, or theft, at common law, is the unlawful taking 
 and carrying away the personal property of another, with the intent of 
 depriving the owner of the same, and converting it to bis own use ; 
 and this may be done by simple larceny, or it may be accompanied 
 with circumstances of aggravation. Simple larceny is a theft where 
 the property was feloniously taken, unprotected by the presence and 
 actual possession of the owner, or that of his house or dwelling; for such 
 protection gives additional aggravation to the crime, and generally in- 
 duces a more severe penalty. The law has always distinguished be- 
 tween the simple theft, where the property was taken from the rightful 
 owner in his absence, and away from the protection that his home and 
 house give it; for the law gives to the theft an additional criminality 
 where the sacredness of private property has been violated, where it was 
 protected by the presence and possession of the owner, as in the cases 
 of robbery, pickpocket, or the taking from a shop or dwelling. 
 
 § 87. Our law distinguishes, also, between one theft and another, de- 
 pendent upon the amount or value of the articles stolen. The statute 
 makes the simple stealing of property to the value of thirty-five 
 dollars, grand larceny, while that of a value below that sum is petit 
 larceny ; the former is punished by imprisonment in the penitentiary, 
 while the latter is punished by a fine and a very limited imprisonment 
 in the county jail. But the stealing a horse, without regard to its value, 
 is a penitentiary offense.' The statute, also, puts the stealing or mali- 
 
 1 The statute includes not only all kinds of horses, but also " foal or filly, ass 
 or mule." 
 
586 CRIMINAL LAW. [book iv. 
 
 cious and felonious destroying any bank bills, promissory notes, bills 
 of exchange, order, receipt, warrant, draft, or bond, given for the value 
 in money or property, on the same footing as that of any other property 
 as to its value, and each case becomes grand or petit larceny according 
 to its value. 
 
 § 88. Cases frequently involve questions of nice distinction as to what 
 does or what does not constitute larceny. And first, as to the kind of 
 property. It must be personal property, for nothing that is part of the 
 freehold at the time of the taking is the subject of larceny ; therefore no 
 larceny can be committed in taking fruit, corn, trees, or grass from the 
 land, or lead or boards from the house, which were severed from the 
 realty by the same act which constituted the taking, for these acts are 
 trespass upon the land and tenement merely, and not larceny. But if 
 these articles are severed from the freehold at a previous time from that 
 of the actual taking by the thief, by some other person, or even by the 
 thief himself, so that at the time of the taking and conversion, the arti- 
 cles had become personal property and not a part of the premises, — for, 
 in strictness, it could not be said that he took personal property when 
 it did not become personalty until after it was taken and severed ; but if 
 the thief severed the things taken at one time and left them there, they be- 
 came by that act personal property, but did not cease to be the property 
 of the owner of the freehold ; and if the thief afterwards feloniously 
 takes thom and converts them to his own use, it is a larceny. Nor can 
 the taking of any article, not included in the statute, be the subject of 
 larceny unless it possesses some value, and that value be not extrinsic ; 
 therefore, where a book of accounts was stolen, in which the owner had 
 charges and claims to a very large amount, the thief could not be 
 charged of stealing an account book of the value of the amount of such 
 claims, for that would be an extrinsic value, but he might be, of that 
 value that it would be to any stranger for waste paper and the like, as 
 ten cents, or some nominal sum. 
 
 § 89. The character and circumstances attending the property taken 
 are also to be considered in determining whether the act be larceny or not; 
 for there are things which under certain other circumstances might be 
 property of some one, which are not property that will subject the 
 taking of them to the charge of larceny. It must appear that the prop- 
 erty taken was the property of some other person, though where that 
 was actually the case, it may be alleged to be the property of some per- 
 son unknown. But if the property be actually abandoned by the owner, 
 or has become a waif, it is not subject of larceny. So if it be found 
 under circumstances that the finder honestly thinks it has been lost, 
 and that the loser cannot be found so as to reclaim it, the conversion 
 of it may not be larceny ; but the secret and malicious conversion upon 
 such finding, with a view of keeping the knowledge of it from the true 
 
CHAP. II.] CBIMES AND THEIR CLASSIFICATION. 687 
 
 owner, might be. Nor could larceny be committed, at common law, 
 of such animals in which there was no present property, absolute or 
 qualified, as of beasts that are/e»-as naturse and unreclaimed.' Nor of 
 such animals as do not serve for food, and which therefore the law 
 holds to have no intrinsic value, as do^s and other creatures kept for 
 mere whim or pleasure, though a person may have such property in them 
 as will enable the owner to maintain a civil action for the loss of them. 
 
 § 90. And lastly, the intent should be considered in determining 
 whether the act be larceny or not ; for the taking and carrying away 
 must be with the intent of depriving the right owner of his property, 
 or, as expressed in the law books, animo furandi. This excuses one 
 who takes a plow, or tool, or some article for a temporary use, and 
 with the intention of returning it again ; or where the taking and con- 
 version was a mere breach of trust, as where an agent or servant im- 
 properly applies the property to his own use, where he has been fully 
 intrusted with the care and control of the property ; but in such case 
 he may be subject to prosecution under the statute for embezzlement. 
 But larceny may be committed where the property had been obtained 
 by the delivery of the owner, if the conversion be done animo furandi. 
 Where a servant who has only the care and temporary custody of prop- 
 erty, clandestinely sells it ; or where the offender falsely and unlawfully 
 obtained the possession with the intent to deprive the owner of it, the 
 owner still retaining his property in it, such persons will be guilty of 
 larceny in the conversion. Thus, where a person as a servant or bailee 
 to keep and take care of a horse, should maliciously sell the horse as 
 his own, or where a person under pretense of hiring a horse to go to a 
 certain place and back, should go an entirely different route, or should go 
 to the end of his journey and then go off, in either case, when evidently 
 done to convert the horse to his own purpose and deprive the owner 
 of his property, it will be larceny ; and such wrongful subsequent con- 
 duct will be evidence of his original intention of larceny. 
 
 § 91. lY. Robbery is where a person shall forcibly, and by violence 
 or by putting in fear, take from the person of another any money or per- 
 sonal property of any value whatever, with intent to rob or steal; such 
 person, on conviction, is subject to be sent to the penitentiary from 
 three to fifteen years. This is a description of the statutory offense, 
 which includes the common law crime of robbery. It involves the 
 crime of larceny without regard to the value of the property taken, ex- 
 cept as it may operate to increase or diminish the sentence ; but the 
 punishment of it is enhanced on the account of its offense upon the per- 
 son as well as being a larceny. 
 
 1 See, as to Title of Personal Property, and property of this kind, ante, B. ii. 
 ch. vii. I 1-12. 
 
588 CRIMINAL LA W. [book it. 
 
 § 92. Much of the principles applicable to larceny, as to the intent, 
 are equally applicable in cases of robbery. It is essentially necessary 
 that the property be taken against the will of the owner, and by put- 
 ting him in fear or by violence. It is not necessary that the property 
 by severed from the person ; it is enough if the property be in his pres- 
 ence and under his immediate control, and, while laboring under fear, 
 the property be taken by the accused with the intent to steal or rob.' 
 There must be an actual taking and carrying away ; but in this offense 
 and in larceny, removing by the offender, however little, is sufficient 
 carrying away. If the person attacked drop the property and flee, and 
 the robbers steal it, the act will be robbery ; but if the robber cut a 
 girdle of a man, with intention to get his money, which falls to the 
 ground, and the robber runs off or is apprehended before he is able to 
 take up the mouey, it would not be robberj', because the money was 
 never taken and carried away. This, however, would be at least an 
 assault with the intent to rob. 
 
 § 93. V. Forgery or counterfeiting is the fraudulent making or 
 altering any writing to the prejudice of another's rights.^ The words 
 will apply to the making or altering coin as well as writing. The 
 statute of Ohio upon this subject is very comprehensive, specifically 
 including every species of offense that can be committed by the forging, 
 counterfeiting, or altering any writing or printing, or the coinage of 
 money of any kind, and makes it a penitentiary offense from three to 
 twenty years. Under the statute are included the falsely forging, coun- 
 terfeiting, making or altering any record of public nature, charter, let- 
 ters-patent, notes, bonds, etc. Also counterfeiting coin, altering or put- 
 ting off such coin, or making or keeping instruments to counterfeit coin, 
 etc. And also disposing of counterfeit notes, not being filled up in blanks 
 therein or signed, or being so filled up and signed ; or gilding silver coin 
 so as to appear like the legal coin of the United States, or any coin pass- 
 ing currently in this State ; or engraving or keeping plate for counter- 
 feiting or altering bank notes, or attempting to -pass counterfeit coin or 
 bank notes ; and punishing these offenses as a misdemeanor, by fine not 
 exceeding five hundred dollars, and imprisonment in the county jail not 
 less than three nor more than twelve months. Frauds in the use, or the 
 having in possession any false counterfeit stamps, brands, labels, or pri- 
 vate trade marks, etc., are in the like manner punished. These statutes 
 afford sufficient penal guards against all crimes and offenses of this kind. 
 
 § 94. The forged instrument must be such that it does or may tend 
 
 I- 2 Wharton's Cr. Law, § 1694, etc. See Turner i>s. State, 1 0. S. E. 422-25 ; 
 Mathews vs. State, 4 0. S. !R. 539. 
 
 2 At common law, see 2 Wharton's Cr. Law, I 1418; 4 Blackst. Com. 247; 4 
 Stephens's Com. 178. 
 
CHAP. II.] CRIMES AND THEIR CLASSIFIGA TION. 589 
 
 to prejudice the rights of another ; and the offense is consummated by 
 the false making of such instrument, with intent to defraud, without 
 any uttering. Every act in the making or altering an instrument, so 
 that it becomes false in any particular or material part, by which a new 
 operation is given to it, is a forgery of the whole ; and those who are 
 engaged in doing any part of it, with the knowledge of the acts of others, 
 become accomplices and principals in the whole. The alteration of an 
 indorsement of payment on a note, though not signed, may be a forgery. 
 
 § 95. VI. Fraud, and obtaining property under false pretenses, and 
 embezzlements are crimes that our statutes reach in various ways, and 
 punish. These are crimes by which persons are deprived of their prop- 
 erty, unjustly, by the acts of others, and frequently by the most artful 
 operations and combinations, which the law endeavors to unravel, pre- 
 vent, and punish. Fraud is any stratagem or artifice by which a per- 
 son is induced, by a contract or otherwise, to part with his rights or 
 property. The law not only declares that all rights and property thus 
 acquired are null and void, and not only renders the party guilty of the act 
 liable to civil suit for the injury, but in many cases may be subjected to 
 severe punishment in a criminal prosecution. Something like unto this is 
 the offense of embezzlement, whereby- one person, by being placed in 
 position of trust and confidence, insidiously and wrongfully converts 
 property intrusted to him for safe-keeping, to his own use. This 
 offense, like that of fraud, is punished by our statutes. But these statutes 
 cannot all be enumerated and delineated here. 
 
 § 96. VII. Another offense against property, to the injury of another, 
 is that of malicious destruction. In one instance, — that of arson, — this 
 offense has already been treated of; but there are numerous other 
 instances where in various ways and occasions, a person's property 
 may be maliciously destroyed by others. As wanton and diabolical 
 offenses of this kind have appeared both in England and this country, 
 statutes have been enacted against them until we have numerous stat- 
 utes on the subject. In Ohio we have statutes against willful and ma- 
 licious setting fire to personal property, and also woods, prairies, etc.; 
 maliciously destroying animal property of another ; maliciously destroy- 
 ing or injuring fruit and ornamental trees, etc.; maliciously demolish- 
 ing or defacing, etc. mile-stones, guide-boards, etc ; or maliciously poi- 
 soning animals, etc., and various statutes of the kind to prohibit, prevent, 
 and punish various other wanton mischiefs.' 
 
 • This closes this chapter, without enumerating all the crimes and offenses in 
 the statute bookf but giving such, and a concise description of such, as would 
 enable the student to understand the general natiire of our crimes and offenses, 
 and their classification. 
 
590 CBIMINAL LA W. [book iv. 
 
 CHAPTER III. 
 
 COURTS AND JURISDICTION IN CRIMINAL MATTERS. 
 
 § 1. Jurisdiction means the rightful exercise of powers assumed over 
 any given subject upon which a decision or determination may be 
 made ; and in judicial matters it is the rightful exercise of power to 
 hear and determine a matter in the administration of justice in accord- 
 ance with the means provided by law for that purpose. It may be 
 either general, or it may be special or limited. Jurisdiction may be 
 limited to the subject-matter, to the person, or to the place or territory 
 over which it may be exercised. In reference to courts, the term juris- 
 diction is used to designate their limited powers over the subject to 
 which it refers ; and the court may be said to have a general jurisdic- 
 tion where it is unlimited in either of these respects, or general as to 
 one or two of them, though limited as to the residue, as it may be gen- 
 eral as to the subject or person, but limited as to territory ; they may 
 be reversed. 
 
 § 2. Courts, therefore, may be of general, of limited, or special juris- 
 diction, according as the law may have invested them with powers ; 
 and they may be distinguished as to their criminal jurisdiction in thd 
 like manner as they were in their civil jurisdiction ; that is, they may 
 be courts of original or of appellate jurisdiction ; or they may be also 
 courts of record or courts not of record ; or courts of superior or infe- 
 rior jurisdiction ; or courts of dernier ressort. In these respects, courts 
 are classified and distinguished in their characteristics, whether they 
 are courts of criminal or civil jurisdiction. In this country it is but 
 seldom we find a court of exclusively criminal or civil jurisdiction, ex- 
 cept in some city police court ; for generally they are organized with 
 like powers over both kinds of judicature.' 
 
 § 3. In treating of courts of criminal jurisdiction, it is proposed to 
 begin with those of the highest and most important jurisdiction, and 
 follow them down until a full view is had of the whole, — in each divi- 
 sion, treating of those of the United States first, and then those of the 
 State ; for in any inquiry as to the jurisdiction of a crime, the most 
 important will be whether it is one of those limited cases, the exclusive 
 jurisdiction of which is given to the United States, or whether it be- 
 longs to those numerous and almost unlimited matters which appertain to 
 
 > See ante, B. i. ch. v. and vi. also x. and xi.; also B. iii. oh. ii. aa to the 
 classification and jurisdiction of courts as to civil matters. 
 
CHAP. III.] COURTS AND J URISDICTIOK. 591 
 
 the judiciary of the State. And whatever is not specially delegated to 
 the United States must still belong to, and be retained by, the State. 
 But in all these a prominent distinction between one court and another 
 is that of being a court of record or a court not of record. The first 
 being all those courts whose mode of proceeding is according to the 
 usual form and course of the common law, and especially keeping a full 
 record of what is done, and of their proceedings in each case ; and the 
 second, being such courts as are authorized to take cognizance of cases 
 and proceed in them in a summary proceeding, and only keep concise 
 minutes of their proceedings. Such courts are usually of very limited 
 jurisdiction, and confined to a preliminary examination of matters for 
 the higher courts. But though called courts not of record, still, what- 
 ever might have been the practice in ancient times, no notice will be 
 taken in another court, as a valid proceeding, of any doing of a court 
 that is not evidenced by the written minutes and papers of its proceed- 
 ings ; that is, no parol evidence of it will be received. 
 
 I. COURTS OP THE UNITED STATES OE CEIMINAL JUEISDICTION. 
 
 § 4. Of the courts of the United States having criminal jurisdiction, 
 two of them — and they the two highest in authority and dignity, the 
 Senate, as the high court for the trial of impeachments, and the Supreme 
 Court — are both created by the Federal Constitution. The other and 
 inferior courts are created and organized by the acts of Congress, under 
 the authority of the Constitution, and may be by Congress altered or 
 remodeled as the exigencies of the country may require. But the 
 Senate, as the court for the trial of impeachments, and the Supreme 
 Court are, as such, fixed tribunals by the Constitution. 
 
 § 5. I. The Senate as a court for the trial of impeachments is a tri- 
 bunal for the trial of crimes under the provisions of the Federal Consti- 
 tution, which declares that the President, Vice-President, and all civil 
 officers of the United States shall be removed from office on impeach- 
 ment for, and conviction of, treason, bribery, or other high crimes and 
 misdemeanors. The House of Representatives shall have the sole power 
 of impeachment. The Senate shall have the sole power to try all 
 impeachments. When sitting for that purpose, they shall be on oath 
 or affirmation. When the President of the United States is tried, the 
 Chief Justice shall preside ; and no person shall be convicted without the 
 concurrence of two-thirds of the members present. Judgment in such 
 cases shall not extend further than to removal from office, and disquali- 
 fication to hold and enjoy any office of honor, trust, or profit under the 
 United States ; but the party convicted shall nevertheless be liable and 
 subject to indictment, trial, judgment, and punishment, according to 
 law. 
 
592 CRIMINAL LAW. [book it. 
 
 § 6. Such are the provisions of the Federal Constitution upon the 
 subject of impeachments, and under them there have been several trials. 
 But the most celebrated of them was that of Andrew Johnson, Presi- 
 dent of the United States, in March, 1868. On that occasion the Chief 
 Justice of the Supreme Court presided. The articles of impeachment 
 found by the House, consisting of eleven articles, charging the President 
 of high crimes and misdemeanors in office, the burden of which was an 
 attempt to remove from office Mr. Stanton, the Secretary of War, con- 
 trary to the act regulating the tenure of civil office ; disregard of the 
 requirements of the acts of Congress, and disregard and neglect of duty 
 in his office ; and these articles were presented and prosecuted before 
 the court for the trial of the impeachment, by a committee of six mem- 
 bers of the House. After a long and patient trial, the President was 
 acquitted by the want of a constitutional two-thirds majority, and gen- 
 erally to the satisfaction of the impartial world. In this case it was 
 contended, on the one hand, that as there were no common law crimes 
 under the United States, there could be no impeachment except for a 
 violation of an act of Congress, or the commission of a crime named 
 in the Constitution. On the other hand, it was contended that anything 
 might be alleged as an impeachable offense, as a high crime or misde- 
 meanor under the Constitution, which was a crime or misdemeanor at 
 common law. The case has not very satisfactorily settled the ques- 
 tion ; but it seemed that those who contended for the first position had 
 the best of the argument. This is based upon the general laws of 
 the United States; if the charge had been the violation of the laws of 
 the district where the common law may be in force, it might be 
 otherwise. 
 
 § Y. This has been the only case of the trial of impeachment where 
 the Chief Justice presided, for in no case, except in the trial of a Presi- 
 dent, is he called upon to preside. In all other cases, the Senate, as 
 such court, is presided over by the ordinary president of the Senate. 
 In tho trial of President Johnson it was determined that the presiding 
 of the Chief Justice was an essential part of the court ; that in the trial 
 of the President the Senate, as such court, could not take any rule or 
 order until they were organized with the Chief Justice presiding. 
 
 § 8. The Senate, as a court for the trial of impeachment, is a criminal 
 court of limited jurisdiction. It is confined entirely to such cases as 
 may be presented to it by the House, and then they are confined, as to 
 persons, to those who are President, Vice-President, or civil officers of 
 the United States, and their offenses must be high crimes or misdemea- 
 nors against the United States, but without any description or designa- 
 tion as to what would constitute such crimes and misdemeanors. And 
 then their power to punish is limited to the removal from office, and 
 the rendering of the accused incapable of holding office under the United 
 
CHAP. III.] COURTS AND JURISDICTION. 693 
 
 States. But with all these limitations, still, in all its bearings, it is one 
 of the most venerable and august courts in the world. 
 
 § 9. II. The Supreme Court of the United States is a tribunal created 
 by the Constitution, and limited to certain original and appellate juris- 
 diction. Its original jurisdiction is very limited, and Congress, under 
 the Constitution, has no power to extend it. The original jurisdiction 
 given to it is in cases affecting ambassadors or other public ministers 
 or consuls, and those where a State may be a party. It is doubtful 
 whether this gives it any original crimiual jurisdiction, as such foreign 
 ministers are supposed not to be here amenable to any criminal prose- 
 cution.' It may therefore be, that its only original jurisdiction is prose- 
 cution in cases for contempt in its own court. 
 
 § 10. The appellate jurisdiction of the Supreme Court in criminal 
 cases is also confined, by the Constitution, to such cases as may be con- 
 ferred by Congress ; and it seems that Congress has given it but very 
 limited appellate jurisdiction in criminal cases. Almost all the crimi- 
 nal business, under the laws of the United States, is conferred upon the 
 circuit and district courts of the United States. There is no act of 
 Congress giving any appellate jurisdiction to the Supreme Court from 
 either of these courts by writ of error, or any appeal. The Judiciary 
 Act does, however, provide that where any question occurs before the 
 circuit court, wherein the justice of the supreme and judge of the dis- 
 trict court — the two judges holding the said court — are divided and 
 opposed in opinion upon such question, the point of disagreement may, 
 during the same term, upon the request of either party or their counsel, 
 be stated, under the direction of the judges, and certified to the Supreme 
 Court at their next session, which shall be by the court finally decided, 
 and their decision and order in the premises shall be remitted to the circuit 
 court and there entered of record as judgment and order of the court. 
 
 § 11. This act of Congress in relation to the division of opinion of 
 the judges, is the only means by which the Supreme Court exercises 
 any appellate jurisdiction over these inferior courts in criminal matters. 
 And the judges in the circuit court, for the sake of having the opinion 
 of the Supreme Court on any question before them, frequently pretend 
 to disagree, and certify the question. This is the only way that even 
 an important question could be carried up from either the circuit or dis- 
 trict court to the Supreme Court, for the want of power to issue a writ 
 of error or certiorari, or the exercise of some appellate power in criminal 
 cases by the Supreme Court. This appears strange, and an apparent 
 want of due administration of criminal justice. But it is hoped that it 
 has not been felt as the ground of any great cause of complaint, or Con- 
 gress would have, before this, removed it. 
 
 1 1 "Wharton's Cr. Law, ? 200. 
 38 
 
594 CRIMINAL LAW. [book it 
 
 § 12. The circuit court has. appellate jurisdiction from the district 
 court by writ of error to it ; but such case cannot go from the circuit 
 to the Supreme Court by a certificate of a divided opinion, for in such 
 -cases in error the district judge does not sit, and therefore there can be 
 no such division of opinion in the court. The acts of Congress in rela- 
 tion to the organizing the judiciary in the several districts and territo- 
 ries, have provided an appellate supreme court of its own, but no appel- 
 late jurisdiction to the Supreme Court of the United States. 
 
 § 13. But there is an appellate jurisdiction in the Supreme Court of 
 the United States to the highest State court in a class of cases. It 
 exists under the 25th section of the Judiciary Act of Congress, giving 
 appellate jurisdiction to the Supreme Court by means of a writ of error 
 to the highest court of law or equity of a State, upon the final judg- 
 ment or decree in any suit ; and this was enacted under the provision 
 of the Constitution which declares that the judicial powers shall extend 
 to all cases in law and equity arising under the Constitution, the laws 
 of the United States, and treaties made under their authority. But the 
 act confines the writ of error to the highest court of the State to which 
 the cause could be taken, and to the final judgment or decree ; and then 
 only where the decision of such judgment is against the claim set up 
 under the Constitution or laws or treaties of the United States. Under 
 these provisions, the Supreme Court exercises appellate jurisdiction in 
 criminal cases as well as civil.^ But it should be noticed that it is 
 strictly confined to a case in the highest court of the State to which the 
 case could be taken, upon its final decision; and the judgment or decree 
 therein must be against the claim set up under such laws of the United 
 States ; all these restrictions and qualifications must appear in the record 
 of the case, or the writ of error will be denied. 
 
 § 14. When this care is manifested in the laws of the United States 
 to protect all rights claimed under the Federal jurisdiction, it is very 
 strange that the appellate jurisdiction of the Supreme Court has been 
 left so confined and limited, by the action of Congress, over the pro- 
 ceedings and jurisdiction of the inferior courts of the United States in 
 criminal matters. It may be said, with surprise, that there is no appeal 
 to the Supreme Court from the judgments and decisions of the inferior 
 courts of the United States by writs of error or certiorari, or in any 
 way by which such decisions may be directly reviewed in criminal 
 cases. 
 
 > Judiciary Act of Congress, 24th Sept. 1789; Curtis's Com. on Const. J 210; 
 1 Wharton's Cr. Law, ? 204, and oases cited in note (t). 
 
CHAP. III.] COURTS AND JURISDICTION. 595 
 
 II. COURTS OF THE STATE OF CRIMINAL JURISDICTION. 
 
 § 15. I. The supreme court of Ohio has complete appellate jurisdic- 
 tion, by means of writs of error and certiorari, to all the inferior courts 
 in criminal cases ; so that all important questions of law, in relation to 
 criminal matters, can be settled in tlie supreme court of the State. But 
 it has no original jurisdiction in criminal matters, unless it be in pro- 
 ceedings for contempt in its own court. 
 
 § 16. The constitution of the State declares that the supreme court 
 shall have original jurisdiction in quo warranto, mandamus, habeas 
 corpus, and procedendo, and such appellate jurisdiction as may be pro- 
 vided by law.' The statute, in pursuance of this grant of power, gives 
 to the supreme court,' in addition to the jurisdiction conferred by the 
 constitution, the power, when in session, on good cause shown, to issue 
 writs of error and certiorari ia criminal cases, and supersedeas in any 
 case, and all other writs not specially provided for nor prohibited by 
 statute which may be necessary to enforce the due administration of 
 justice throughout the State ; and either of the judges in vacation shall, 
 on good cause shown, have power to grant said writs of error and cer- 
 tiorari ; and also to grant writs of habeas corpus and supersedeas in 
 any case ; and such writs of .error or certiorari directed to the couvt of 
 common pleas may, in the discretion of the court or judge, be made re- 
 turnable to the district court of the proper county or the supreme court. 
 
 § 17. By statute it is further provided,' that in criminal cases, not 
 punishable with death, after final judgment, writs of error may, on good 
 cause shown, be allowed by the supreme court or any judge thereof, in 
 vacation, as in civil cases ; and when punishable with death, the writ 
 may, in the same manner, be allowed by the court in open court, when 
 in session, or by any two judges in vacation. In such capital cases, 
 the court or judges allowing the writ shall order a suspension of the 
 execution until the error is heard and determined, when the court shall 
 order the prisoner to be discharged, or a new trial to be had, or appoint 
 a day certain for the execution of the sentence, as the nature of the 
 case may require. 
 
 § 18. The appellate jurisdiction thus given to the supreme court 
 authorizes them to issue such writs of error or certiorari to any of the 
 inferior courts of the State, so that they have a complete authority to 
 bring before them any and all legal questions that may arise in the 
 progress of any criminal trial in any of the inferior courts upon final 
 judgment. Such writs may be made returnable either to the supreme 
 
 » Const, art. iv. ? 2. ' Stat. March 14, 1853, 1 S. & C. 382. 
 
 a See Code of Criminal Procedure, § 199, 200, and 201, Act of May 6, 1869. 
 And see post, ch. viii. J 9-13. 
 
596 CRIMINAL LAW. [book iv. 
 
 or district court, at the discretion of the court or the judges allowing it, 
 except where the case below is already in the district court, and the 
 writ is intended to review a decision of that court. 
 - § 19. II. "The next court, in point of authority, below the supreme 
 court is the district court, held once a year in each county.^ This court 
 has no original criminal jurisdiction, but as an appellate court it has the 
 like powers as the supreme court to issue writs of error and certiorari 
 in criminal cases, to the inferior courts, and all other writs not specially 
 provided for nor prohibited by statute, whenever they may be neces- 
 sary for the exercise of its jurisdiction in the due administration of jus- 
 tice. Such writs may issue from this court in ci-iminal cases to the 
 inferior courts, as the common pleas, probate court, justices of the peace, 
 municipal courts, and the like, by which means injustice in any of these 
 inferior courts is controlled, and their errors corrected. Over all these, 
 as well as the district court itself, the supreme court exercises its jurisdic- 
 tion to promote and guard the due administration of our judicial system. 
 
 §20. III. Ihe court of common pleas for each county is the third 
 court in grade in our State. This court has original jurisdiction of all 
 crimes and offenses, except in cases of minor offenses, where the exclu- 
 sive jurisdiction of which is invested in justices of the peace, or that 
 may be vested in courts inferior to the common pleas ; but where a per- 
 son is indicted and tried in the common pleas, and found guilty of any 
 minor offense embraced in the terms of the indictment, the court will 
 proceed to pass sentence prescribed by law, in the same manner as 
 though they had original jurisdiction of such minor offense.^ 
 
 § 21. Although the common pleas is a court of very extensive juris- 
 diction in both civil and criminal matters, and appellate jurisdiction from 
 the decision of the probate court, county commissioners, justices of the 
 peace, and other inferior courts of the county in all civil cases, yet it 
 has no appellate jurisdiction in criminal cases, for that is confined wholly 
 to the district and the supreme court. In criminal cases, therefore, 
 writs of error to the probate court, or certiorari to a court of a justice 
 of the peace, or to a municipal court not a court of record, must proceed 
 from the district or supreme court, and not from the common pleas, as 
 they would in civil cases. 
 
 § 22. IV. The probate court ordinarily has but very limited criminal 
 jurisdiction. It principally consists in hearing cases upon habeas cor- 
 pus, and rehearing of cases where persons are in custody upon criminal 
 charges, having been bound over by some justice of the peace officer 
 for a hearing in the common pleas, and sent to jail on a mittimus for 
 the want of.bail. In such cases, where a person is held in custody on 
 
 J See ante, B. i. ch. x. ? 5; B. iii. ch. ii. § 8-11, and ch. viii. § 1-18. 
 « See Stat. April 29, 1854, 1 S. & C. 386. 
 
CHAP, m.] COURTS AND JURISDICTION. 697 
 
 a legal charge, which could not be relieved by habeas corpus, the pro- 
 bate court is authorized to hold a rehearing, and discharge, bind over 
 to the common pleas, or remand into custody, as the justice of the case 
 might require. But in some of the counties extensive criminal jurisdic- 
 tion is conferred on the probate court to hear and determine misdemea- 
 nors and minor offenses. 
 
 § 23. V. Courts of justice of the peace may be next considered, for in 
 criminal matters thej^ have very extensive jurisdiction as conservators 
 of the peace through the county. In numerous petty offenses the jus- 
 tices have power to hear and determine the case upon summary pro- 
 ceedings, and to punish by fine and imprisonment. Justices of the 
 peace, with the mayors of towns and judges of police courts, are the 
 proper officers before whom complaints may be made of the violation 
 of any of the criminal laws, and are authorized to issue warrant for the 
 apprehension of the offenders, and hear and determine the case, as an 
 examining court, whether the accused should be discharged or bound 
 over to court for a full trial of the charge. In misdemeanors, — cases 
 not subject to punishment in the penitentiary, — where the accused pleads 
 guilty, the justice in his court may finally dispose of the case by a sen- 
 tence of fine and imprisonment, according as the case is subject to a 
 penalty ; or, at his discretion, bind over to the higher courts for trial 
 there, which is usually the court of common pleas. 
 
 § 24. When a person is brought before a justice of the peace upon a 
 charge of a violation of a penal law, the magistrate has power to dis- 
 pose of the case in various ways, dependent upon the nature of the 
 case. Thus, in a class of minor offenses, the magistrate has complete 
 jurisdiction over the case, upon hearing the case, to pass final sentence 
 and issue execution to enforce the judgment, as in a prosecution for an 
 affray, or challenge to fight, or profane swearing, or disturbing reli- 
 gious meetings, and the like. If the charge be a misdemeanor, — not a 
 penitentiary offense,— and the accused pleads guilty, the justice may 
 pass final sentence ; but where the accused does not plead guilty, the 
 magistrate has no further power in the case but to hear the case upon 
 evidence, as an examining court, and determine whether the evidence 
 is sufiBcient, in his judgment, to make a probable cause against the 
 accused, and require him to give bail to answer the complaint at court, 
 or that he should be discharged, as in cases for assault and battery, petit 
 larceny, and the like. But in penitentiary offenses, he can do nothing 
 but inquire, upon the evidence, whether there be a probable cause or 
 not, and accordingly bind over or discharge ; and in capital cases, which 
 are not bailable, he must commit to custody or discharge where there 
 is no probable cause. 
 
 § 25. In these criminal proceedings, the jurisdiction of the various 
 courts are different. That of the magistrate in the higher crimes is only 
 
598 CRIMINAL LA W. [book it. 
 
 to inquire if there be sufficient evidence to make a probable cause against 
 the accused in the court of common pleas ; and in case he so finds the 
 evidence sufficient, he is either admitted to bail or remanded into cus- 
 tody for trial in the court of common pleas, and the case, with all the 
 facts, are sent to that court for that purpose. By this means the latter 
 court acquires jurisdiction of the case, and in due time proceeds to try 
 it, and, as a result of the trial, produce an acquittal or conviction. If, 
 in case there be a conviction, and there appears in the record and pro- 
 ceedings an error committed by the court of common pleas in the course 
 of the trial, it may be taken up to the district court upon the question of 
 error. Thus the latter court obtains jurisdiction of the case, and is called 
 upon to pass its judgment upon the question involved in the alleged 
 error. From the district court it may be taken to the supreme court, 
 either by its being reserved by the district court upon some difficult 
 question, and certified for decision to the supreme court, or it may be 
 taken to the supreme court by a writ of error upon some error alleged 
 in the judgment and proceedings of the district court. In this manner 
 the various grades of criminal courts may acquire jurisdiction, one after 
 another, of the same case, until by final judgment it is disposed of. 
 
 III. JUEISDICTION OF THE PAETICULAE CASE. 
 
 § 26. The question of jurisdiction may not only refer to the powers 
 ordinarily given to the court over a class of cases, but it may also refer to 
 the jurisdiction the court has acquired over the particular case. The court 
 must not only have jurisdiction over the class of cases to which the par- 
 ticular case belongs, but it must acquire jurisdiction over the case itself. 
 Thus, if the probate court should attempt to try a case of capital offense, 
 and pass a judgment of death against a person ; or the court of common 
 pleas should issue a writ of quo warranto and proceed to try a case of 
 that kind, in either case the proceedings would be void for the want of 
 jurisdiction of that class of cases ; but proceedings may also be void 
 because the court never acquired jurisdiction over the person of the 
 defendant, or over the particular case ; where the defendant was never 
 laken or brought into court to answer, or the oflFense was committed, as 
 alleged, in another county or State ; in all these cases the, court would 
 have no jurisdiction, and their proceedings would be void, as coram non 
 jiidice. 
 
 § 27. The common law has ever insisted, upon the soundest princi- 
 ples of law and justice, that the proceedings are void where they have 
 been had in the absence of the defendant, he never having been taken 
 or brought into court, so that he never had a day in court, and an op- 
 portunity to answer the charge against him ; or where the court never 
 had jurisdiction over the offense, as being out of their territorial juris- 
 
CHAP. III.] COURTS AND JURISDICTION. 599 
 
 diction, as where the alleged crime was eomjnitted ia another State or 
 county. Both in England and in this country these objections, on the 
 score of want of jurisdiction, have ever been considered fatal,— in the 
 first instance because it was considered to be unjust and unreasonable 
 that a person should be bound by a proceeding where due process had 
 never been served upon him, and never having had a day in court to 
 answer and defend the charge alleged against him ; and in the latter 
 instance it was considered to be equally unreasonable for a freeman to 
 be compelled to answer an alleged offense except within the county or 
 district where the offense was said to have been committed. 
 
 § 28. So jealous was the common law of the assumption of jurisdic- 
 tion, in reference to place and territory, that where a wound was given 
 in one county, and death in consequence thereof in another, a prosecu- 
 tion for murder in such case could be had in neither. In Ohio this 
 difficulty is obviated by statute, by directing the prosecution to be in 
 the county where the blow was inflicted. But still greater difficulty 
 would occur where a crime had been committed in another State, or in 
 a foreign country, by one of our citizens ; or by a foreigner who has 
 since come into our jurisdiction ; or where the crime was committed 
 upon the high seas, out of the jurisdiction of any State or country. These 
 difficulties are adjusted by the Constitution of the United States, and 
 acts of Congress made in pursuance of such constitutional powers, or 
 by extradition treaties with foreign powers. 
 
 § 29. Where a person has fled from justice, from one State to another, 
 the matter is regulated by the Federal Constitution and the acts of Con- 
 gress in relation to fugitives from justice, by which the fugitive is taken 
 and surrendered to the State where the crime was committed.' Where 
 a fugitive from justice is claimed by a foreign government, the usual 
 proceedings are to apply to the commissioner of the United States cir- 
 cuit court for an order for his delivery, on the proper demand; and in 
 case the order is unwarranted or illegal, the prisoner can have the ques- 
 tion reviewed upon a writ of habeas corpus; and whether such review 
 be in the State courts or those of the United States, the question may be 
 finally taken to the Supreme Court of the United States, as to any ques- 
 tion arising under the Constitution, statutes, or treaties of the United 
 States.' 
 
 § 30. Where the offense was committed out of the jurisdiction of any 
 State, as upon the high seas, it became an embarrassing question where 
 and how such offender could be tried and punished. Originally such 
 offenses and crimes were only punished in England by the civil law, in 
 
 1 See ante, B. 1. ch. ix. 2 6, 7 ; see, also, the stat. May 6, 1869, Crim. Code, J 
 211-12-13. 
 2 See Curtis 's Com. 269, ? 213; 14 Peters 's U. S. K. 540, Holmes's case. 
 
600 CRIMINAL LA W. [book it. 
 
 courts having civil law jurisdiction ; but this was there relieved by the 
 statute of 28 Henry VIII. c. 5 ; and here, the act of Congress gives 
 jurisdiction of such crimes and offenses to the courts of the United 
 States, — to the circuit and district courts as courts of law or admiralty, 
 as the case might require.' And in such cases it is held, that wherever 
 upon the high seas, the jurisdiction and laws of the United States con- 
 tinue on board of all shipping of the nation, commercial or naval, and all 
 on board are subject to the laws of the United States, and to the juris- 
 diction of the courts of the Union. It has been determined that a ves- 
 sel lying in an open roadstead of a foreign country may be said to be 
 on the high seas, and that it cannot be objected, where a crime has been 
 committed on board, that it was within the limits and jurisdiction of 
 a foreign state ; " for those limits, though neutral to war, are not neu 
 tral to crimes.'" 
 
 § 31. In cases of crimes committed on the high seas, it seems to be 
 the rule, as to the jurisdiction of our courts, that it is sustained where- 
 ever the crime was committed on board of one of our own vessels with- 
 out regard to the nationality of the offender, over any crime committed 
 by one of our citizens on board of a foreign vessel, and over any crime 
 committed on board of any vessel not acknowledged as a vessel of any 
 foreign power, or as having any nationality. The trial of crimes thus 
 committed out of the jurisdiction of any particular State, may be in the 
 district where the offender may be apprehended, or into which he may 
 be brought.' 
 
 § 32. Again, the jurisdiction of a court may be questioned on the 
 ground that the subject-matter of consideration is not a judicial ques- 
 tion. Courts frequently have cases submitted to them, asking for some 
 decision or relief, which the court finds itself compelled to decline on 
 the ground that the subject-matter involved is entirely out of their juris- 
 diction, because it is purely an executive or ministerial act, involving 
 executive discretion and judgment, or a political question, addressing 
 itself entirely to the legislative wisdom ; although in each case they 
 might differ from the judgment or wisdom manifested in each case by 
 the executive or legislative powers, yet it is not within the jurisdiction 
 of the judiciary to restrain them.* So where, by a legislative act an 
 authority was granted to a board of persons to levy and collect such an 
 amount of certain tax as in their judgment would be right and proper, 
 though ordinarily an excess of taxes might be resisted, yet the board, 
 
 1 See ante, B. iv. oh. ii. I 19-24. 
 
 2 2 ■Wharton's Cr. Law, | 2832 ; U. S. m. Pirates, 5 Wheat. K. U. S. 184. 
 
 s See ante, B. iv. ch. ii. J 15-18 and oh. iii. ^2-14 ; stat. U. S. April 30, 1700, 
 § 8; 2 Wharton's Cr. Law, § 2816. 
 
 * See Luther vs. Borden, 7 How. U. S. R. 1-42 ; see, also, C. J. Chase's Opin- 
 ion in State of Texas vs. White, in Law Eevicw (July No. 1869), 772. 
 
CHAP. III.] COURTS AND JDRISDIGTION. 601 
 
 having the power, according to their judgment, to do the act, the judi- 
 ciary have no jurisdiction or power to call their judgment in question. 
 
 § 33. Where a court had no jurisdiction in such matters in the origi- 
 nal case, yet wrongfully passed judgment as though the matter were 
 legitimately within their jurisdiction, when the cause ought to have 
 been dismissed, a court of errors, however, will take an appellate juris- 
 diction of such case for the purpose of correcting the error, and render- 
 ing such judgment therein as the court below ought to have rendered. 
 
 IV. WHERE JURISDICTION MUST BE SHOWN, OR MAY BE 
 PRESUMED. 
 
 § 34. Courts of general jurisdiction will be presumed to have had 
 jurisdiction of the case or subject-matter, but their record must show 
 that they had jurisdiction of the person of the defendant, by his having 
 been summoned by process, or having made his appearance in the'case; 
 and generally the question, whether the party was actually summoned 
 or appeared, may be contested in a subsequent case collaterally, for if 
 there were no summons or appearance, the court had no jurisdiction, 
 and their proceedings are void ; and this is permitted to be done on 
 the ground that the summons may have been served on the wrong per- 
 son, or the entry of appearance may have been falsely and fraudulently 
 obtained. The defendant, in a judgment against him, must have an 
 opportunity to make his defense, or the judgment and proceedings 
 against him will be considered fraudulent and void. The cases to this 
 effect are numerous. 
 
 § 35. In reference to the necessity of showing jurisdiction in the re- 
 cord, it is stated as a rule applicable even to the United States courts, 
 that as they are courts of limited, although not of inferior jurisdiction, 
 it follows that it is necessary to allege the jurisdiction in the proceed- 
 ings. Where the jurisdiction is sought, therefore, upon the ground that 
 the parties are citizens of different States, it is necessary to aver that 
 they are so in the pleadings, otherwise the judgment may be reversed, 
 on writ of error, for want of such description.' 
 
 § 36. Courts of limited or inferior jurisdiction must show, on the face 
 of their record, that the ease was within their jurisdiction. Thus, if in 
 the proceedings of a justice of the peace, that the particular case was 
 a complaint for an assault and battery, and that the proceedings only 
 showed an examination with a view to determine whether the accused 
 should be discharged or bound over to the court of common pleas, it 
 would be all right, for the statute gives that jurisdiction to him. If the 
 proceedings should further show that the accused, when brought before 
 
 1 See Cui'tis's Com. ^ 74, and authorities there cited. 
 
602 CRIMINAL LA W. [book ir. 
 
 the court upon the charge, had pleaded guilty to the charge of assault 
 and battery, and the justice thereupon passed judgment for the pay- 
 ment of a fine, this also would be right, for the statute gives such magis- 
 trate that authority. But if the proceedings showed a judgment for 
 the payment of a fine, without showing any cause or complaint within 
 his jurisdiction, the judgment would be held a nullity. 
 
 § 37. But as to the proceeding of courts of general and superior juris- 
 diction, it would be presumed that the case was within their jurisdiction, 
 unless it appeared to be one of those cases where a special authority or 
 jurisdiction is given to them, in which case they must show in the 
 record that they were within the case of which the statute gave juris- 
 diction ; for it is not only a general rule that every record must present 
 the case apparently within the jurisdiction of the court, but where that 
 jurisdiction depends upon a special statute, to be resorted to only on 
 the recurrence of particular facts, those facts must be shown ; for though 
 it may be correct to presume jurisdiction where the want of it does not 
 appear in cases within the general jurisdiction of the court, yet where 
 the jurisdiction is created by statute, and limited to particular cases, of 
 which the court could not take cognizance without the statute, the 
 jurisdiction cannot be presumed.' 
 
 § 38. More will be presumed in favor of the validity of a record from 
 another State ; for in the absence of knowing what their law is, and 
 their jurisdiction, whatever is done will be presumed to be right until 
 the contrary appear. This is due, as a matter of comity, between one 
 State and another. But in all cases where it appears that the case was 
 not within the jurisdiction, and especially where there was a want of 
 jurisdiction over the person, for want of summons or appearance in 
 court, the judgment in such record must be held as a nullity, and void. 
 Where the court have once acquired jurisdiction over the case and per- 
 son, then an error in the proceeding cannot be taken advantage of col- 
 laterally, but only by error or appellate proceedings in the courts where 
 the original jurisdiction was had. 
 
 1 See Edmiston vs. Edmiston, 2 O. K. 251 ; Ludlow vs. Johnson, 3 0. K. 553 j 
 Adams vs. Jeffries, 12 0. E. 253 ; 11 O. S. R. 219. 
 
CHAP, iv.] CRIMINAL PROCEDURE AND PRACTICE. 603 
 
 CHAPTER IV. 
 
 CRIMINAL PROCEDURE AND PRACTICE. 
 
 I. THE PEOSECUTION. 
 
 § 1. The prosecution is the pursuit of such proceeding as the law pro- 
 vides to bring the accused to trial and punishment. It bears the same 
 relation to criminal proceedings that action does to civil. In the latter 
 case the defendant is brought to trial and judgment by means of the 
 action ; in the former the accused is brought to trial and judgment 
 by means of the prosecution. The terms prosecution, action, suit, case, 
 defendant and plaintiff, are used in common, iu both kinds of proceed- 
 ings ; but the terms criminal prosecution and civil action are the most 
 appropriate. 
 
 § 2. For the purpose of instituting and carrying on the prosecution, 
 the law may direct any mode or form 'of proceedings it deems proper. 
 There are three different modes and forms of proceedings usually 
 adopted for the enforcement and collection of the penalty inflicted for 
 the violation of any law. These are : — 1. Where the statute provides 
 that the penalty, in any given case, may be collected or recovered in 
 any certain form of action, as debt, or case, or the like, in the name of 
 the State, or at a suit in the name of any informer, or party injured. 
 This form of criminal prosecution is frequently adopted. 2. Where 
 the prosecution is instituted by what is denominated an informa- 
 tion, which is where the law authorizes a complaint to be made 
 in the form of an information filed in court, stating and informing the 
 court of the nature of the case and matter of grievance and cause of 
 complaint, and demanding process against the accused and judgment 
 thereon. 3. Where the complaint is embodied in the form of an indict- 
 ment and found by a grand jury a true bill. The first only occurs in 
 practice where the statute inflicts a certain pecuniary penalty for the 
 commission of some minor offense, and authorizes that mode of pro- 
 ceeding for the collection of the penalty. The second occurs where the law 
 authorizes that mode of prosecution for the punishment of the offense ; 
 this mode is usually confined to misdemeanors, and never suffered in 
 a capital or penitentiary crime. And the last form of proceeding — by 
 indictment found by the grand jury — is the usual prosecution in all 
 criminal offenses, and the only one suffered in higher criminal cases. 
 
 § 3. These prosecutions are commenced or instituted in various 
 ways, as provided by law and usage. The law, in the first instance, 
 
604 CBIMINAL LAW. [book iv. 
 
 and in some cases of minor offenses, inflicts a pecuniary penalty, and au- 
 thorizes the Injured party, or some other person, to prosecute generally, 
 or in a particular manner, to recover the penalty, and have a certain 
 portion of it for his own use, and the residue for the State or some insti- 
 tution ; in this case the prosecutor is called the informer, and the pro- 
 ceedings a qui tarn prosecution or action. This mode of proceeding is 
 very seldom authorized by our statutes, or tolerated by the people of Ohio. 
 
 § 4. Another mode of instituting the prosecution is vphere the in- 
 jured person, or some one for him, makes complaint upon oath before a 
 magistrate, by which the prosecution is commenced, and afterward 
 attended to and prosecuted by those officers, whose duty it is to attend 
 to these matters and the interest of the State. In this case the prose- 
 cution will assume the form of an information or indictment, as the 
 case may require, in its progress. 
 
 § 5. The last mode that may be noticed is where the prosecuting 
 attorney, an officer of the law, who, on behalf of the State, attends to all 
 criminal business and the interest of the State within the county, deems 
 a particular case worthy of his notice and attention, or is prompted to 
 it by an injured person, or some one who deems it his duty to do so, 
 and therefore presents to the grand jury a paper, called a bill, em- 
 bodying the matter of complaint, with the evidences in its support ; and 
 the grand jury, upon consideration of the evidence, indorse upon the 
 bill their finding, that it is " a true bill," or " not a true bill," and then 
 return it into court, as the result of their action in the case. If returned 
 a true bill, it is thence called the indictment, which the accused will be 
 called upon to answer according to law. 
 
 § 6. In one or another of these three several ways the prosecution is 
 commenced or instituted. The person at whose special instance a 
 prosecution is thus commenced and set in progress is usually called the 
 prosecutor or informer. In many cases of minor offenses and misde- 
 meanor the prosecutor is bound in some way, by either indorsing the 
 indictment, or signing some obligation to pay the costs in case the 
 prosecution fails, or the prosecution will be stopped, and the accused 
 discharged from the accusation. This is done to prevent malicious 
 and unfounded prosecution. But no such security for cost is required 
 in those graver charges of capital or penitentiary crimes, and now by 
 our code denominated felonies. 
 
 § 7. Whenever an offense is committed, or the law criminally vio- 
 lated, it may be further inquired, whose duty is it to make the complaint 
 or institute a prosecution ? The answer to this inquiry has already been 
 in a great measure suggested ; but it may be further said that it is the 
 privilege of every man to commence such prosecution, and make the 
 proper complaint, in order to have the case investigated; and it is the 
 
CHAP. IV.] CRIMINAL PROCEDURE AND PRACTICE. 605 
 
 duty of every good citizen to see, as far as it is in his power, that the 
 laws are not violated with impunity, that the innocent are protected 
 from injustice, and that the law is wholesomely administered. In some 
 instances it is made the special duty of any person acquainted with the 
 commission of certain crimes to make the complaint or disclosure to a 
 proper oflScer ; as for instance, in cases of treason against the United 
 States, it is the duty of any one acquainted with the fact to disclose 
 the same to the President of the United States, or governor of a State, 
 or some one of the judges or justices thereof; and any person having 
 knowledge of such treason, who shall conceal, and not forthwith make 
 such disclosure, is subject to a prosecution for misprision of treason, and 
 punished accordingly. In many instances a person, by the concealment 
 of the crime, might render himself obnoxious to a prosecution, and make 
 himself a party in the transaction, as either an accessory before or after 
 the fact, or otherwise as an accomplice or particeps crimims. But 
 especially it is the duty of magistrates and other conservators of the 
 peace, and police officers, to notice any breach of the law upon proper 
 information, and especially to act when the offense is committed in 
 their presence or notice. In such cases it is the duty of the officer, in 
 the line of the duties of his office, to proceed upon view, without wait- 
 ing for complaint, and forthwith put the prosecution in due process, 
 with vigilance and effect. This should be done in the name of the State, 
 or of the United States, as the case may be ; and when the prosecution 
 is once commenced or instituted, it then falls to the duty of the prose- 
 cuting attorney, or some other officer, to see to the case, and properly 
 carry on the prosecution to its final termination. 
 
 § 8. In the progress of this chapter, besides what has been consid- 
 ered under this head, of Prosecution, there shall be further considered 
 under these heads: — II. Proceedings to prevent the commission of 
 crime; III. Arrest, examination, commitment, and bail; IV. Habeas 
 corpus and other proceedings prior to Indictment and trial ; V. The 
 grand jury and its proceedings ; VI. Proceedings upon the indict- 
 ment ; VII. Preparing the case for trial, — and each of these in their 
 order. 
 
 II. PEOCEEDINGS TO PREVENT THE COMMISSION OP CEIME. 
 
 § 9. It is equally as important that the State should furnish every 
 means in its power for the prevention of crime, as it is that it should 
 furnish means to punish crimes after their commission. All govern- 
 ments have, in a more or less complete manner, acted upon this princi- 
 ple, and, to some extent, accomplished this object. Whether Ohio, by 
 her statutes, has furnished all those means for the prevention of crimes 
 
606 CRIMINAL LA W. [book iv. 
 
 that might with propriety be furnished, is quite questionable. What 
 has been done will now be analyzed.' 
 
 § 10. Any person may mak6 complaint in writing, upon oath before 
 any magistrate,* that he has just cause to fear, and does fear, that an- 
 other will commit any offense against his person or property, his ward 
 or child ; it shall be the duty of the magistrate to issue a warrant to a 
 constable of the county to arrest the person complained of, and take 
 him before such magistrate, or some other one, to answer the complaint. 
 When so brought before the magistrate, he shall be heard in his defense, 
 and witnesses examined on oath ; and if the magistrate shall be of opin- 
 ion that there is just cause for the complaint, he shall order the accused 
 to enter into recognizance with sufficient security, in a sura between 
 fifty and five hundred dollars, for his appearance before the court of 
 common pleas on the first day of the next term, and in the mean time 
 to keep the peace and be of good behavior generally, and especially 
 toward the complainant. In default of such bail the accused must be 
 sent to jail on a mittimus. But if the magistrate, on the examination, 
 finds the complaint untrue, the accused vviil be dismissed, and judgment 
 rendered against the complainant for costs.* 
 
 § 11. The recognizance and proceedings in such case are to be forth- 
 with, or in due time, returned to the court of common pleas, who are 
 to hear and determine the case, require the accused to give further bail 
 for good behavior, and in default to commit him to jail; but such commit- 
 ment, in case of such default, not to exceed one year. If, on such exami- 
 nation, the court find there was no cause of complaint, the accused is 
 to be discharged, and judgment rendered against the complainant for 
 costs. In these cases the common pleas exercise a great latitude of 
 discretion and prudence in the final disposition of such cases, for the 
 purpose of saving unnecessary litigation and preserving the peace.* 
 
 § 12. Whenever any person, in the presence of the magistrate, shall 
 make an affray, or threaten violence to another or his property, or shall 
 contend with hot and angry words, to the disturbance of the peace, the 
 magistrate, without process or proof other than his own observation, 
 may proceed to require security for good behavior, and in case of fail- 
 ure to comply, to commit, and in every other respect proceed as in cases 
 of complaint. 
 
 > See the statute of May 6, 1869. Took effect August 1, 1869,—" Code of Crim- 
 inal Procedure." 
 
 2 Justice of the peace, mayor of any city or incorporated village, or police 
 judge. 
 
 « Criminal Code, J 1-4. * Criminal Code, J 5-12. 
 
CHAP, rv.] CRIMINAL PROCEDURE AND PRACTICE. 607 
 
 III. AEKEST, EXAMINATION, COMMITMENT, AND BAIL. 
 
 % 13. 1. An arrest is the first thing sought for after the commission of 
 the offense, or the commencement of the prosecution ; for, until the 
 arrest is made and the accused brought under the jurisdiction of the 
 court, and personally appear in the case, nothing can be done further 
 than entering the complaint and issuing a warrant for his arrest. The 
 arrest may be made by a proper person to do it, either with or without 
 a warrant, and it is the apprehending of a person and taking him into 
 custody and restraint, in order to have him forthcoming, to answer the 
 charge made against him. 
 
 § 14. (1) An arrest may be made without a warrant by an executive 
 peace officer,' or even a private citizen, when there has been a crime' 
 committed in his presence, who may apprehend and arrest the offender 
 and take him before a magistrate until a warrant can be issued. A 
 magistrate, upon view of the commission of a crime, may order the 
 arrest, and keep the offender in custody until he can issue a warrant, 
 without waiting for the complaint and affidavit, and in his warrant or 
 mittimus state it was issued upon a view of the commission of the 
 offense. There is this difference between the authority of a private 
 citizen and a peace officer, that the former ought not to act without a 
 warrant, unless the offense was committed in his presence, for if the 
 charge should turn out to be untrue, he might be liable for a false im- 
 prisonment ; for the arrest in that case was done at his peril, and could 
 not be justified. But with an officer it might be otherwise when there 
 had been an atrocious act committed, and he acted upon information 
 which made a probable cause of the truth of the charges he would be 
 justified in making the arrest. 
 
 § 15. The arrest without a.warrant is permitted upon the principle 
 of the apprehension that otherwise there is great danger that the 
 offender may make his escape. But, wherever it can be done with 
 safety, the better way in all cases would be, to make the proper com- 
 plaint to the magistrate, and obtain his warrant for the arrest. Then, 
 in that case, if the accusation turns out to be untrue, the officers are 
 justified by the complaint upon oath, and the warrant, and the private 
 citizen who made the complaint is also justified in case he acted in 
 good faith and upon a probable cause. 
 
 § 16. (2) When a warrant has been issued for an arrest upon a 
 
 • Enumerated in the new criminal code as sheriff, deputy sheriff, constable, 
 marshal or deputy marshal, watchman or police officer 
 
 ' The same code enumerates petit larceny or felony. It also defines felony to 
 be such an offense as may be punished with death or Imprisonment in the peni- 
 tentiary. 
 
608. CRTMTNAL LAW. [book iv. 
 
 proper complaint made before the magistrate, and an an-est has been 
 made under it, the law gives it great sanction and protection. It is 
 directed to the proper executive officer, and requires him to make the 
 arrest, and forth virith bring the accused before the magistrate, or some 
 other one in the county, to answer to the charge, and to be dealt with 
 according to law. Such warrant authorizes the officer, if necessary, to 
 pursue the offender to any other county, in case he has fled to any 
 other county in the State ; and in case he is found in any house, the 
 officer, upon demand of the accused and notice of his official character, 
 and upon refusal to surrender to him, may break any outer or inner 
 door, or window, for the purpose of making the arrest. In making the 
 arrest he may call on any citizen to aid, and all good citizens are bound 
 to obey such call and aid accordingly. It is the duty of the officer, after 
 making the arrest, to take the accused, as soon as convenient, and with- 
 out any unreasonable delay, before the magistrate for examination, to 
 ascertain whether he should be discharged or bound over to a trial at 
 court. 
 
 § It. In order to obtain such warrant from the magistrate, ordinarily, 
 it should only be issued upon a complaint made in writing, signed and 
 sworn to by the complainant, and charging the party accused with 
 some criminal offense against the law, vs^hich should be described with 
 such reasonable certainty as to make it come within the law. Upon 
 such complaint the warrant is to be issued, and it is the magistrate's 
 duty to do so, if he have reasonable grounds to believe that the offense 
 charged has been committed. When, however, the offense charged is 
 a misdemeanor, the magistrate, before he issues the warrant, may, at 
 his discretion, require the complainant to acknowledge himself bound 
 for the payment of the costs, if, on hearing, the case be dismissed, and 
 the magistrate be of the opinion that the complaint was made without 
 probable cause ; and if the complainant be deemed wholly irresponsi- 
 ble, he may be required to give responsible security for such cost, or 
 refuse to issue, at his discretion. 
 
 § 18. According to common law principles all proceedings in a crimi- 
 nal case were bound to be within the county where the offense was 
 committed. But our criminal code provides, that if a person charged 
 with an offense shall abscond or remove to some other county, it shall 
 be lawful for the magistrate of such other county to issue a warrant to 
 take the accused to the county where the offense was committed, to be 
 examined before a magistrate there, as though the warrant had been 
 issued by a magistrate of the county where such offense had been com- 
 mitted. 
 
 § 19. As a preliminary proceeding in a prosecution, besides the war- 
 rant for the arrest, there may be a warrant for another proceeding, 
 which is called a search warrant. It is issued upon a proper complaint, 
 
CHAP. IV.] CRIMINAL PROCEDVRE AND PRACTICE. 609 
 
 as in other cases, showing the existence, or reasonable and probable 
 cause for believing the existence, of facts to warrant the proceedings ; 
 and the magistrate is authorized to issue a search warrant to search any 
 house or place — 1st. For property stolen, embezzled, or obtained under 
 false pretenses or tokens. 2d. For forged or counterfeit coins, stamps, 
 labels, trading marks, bank bills, or other instruments of writing. 3d. 
 For books, pamphlets, ballads, or printed papers containing obscene 
 language, prints, pictures, or descriptions manifestly tending to corrupt 
 the morals of youth, and intended to be sold or circulated. 4th. For 
 any gaming table, establishment, device, or apparatus kept or exhibited 
 for the purpose of unlawful gaming, and for any money or personal 
 property won by unlawful gaming. 
 
 § 20. To authorize such warrant, the complaint must be made as in 
 other cases, and it must also particularly describe the house or place 
 to be searched, the person to be seized, and the things to be searched 
 for, and allege substantially the 'offense in relation thereto, and that the 
 complainant verily believes that such things are there concealed. The 
 warrant must recite these particulars of the complaint, and command 
 the olficer to search such house or place in the daytime ; and if such 
 things are found, to seize and bring the same, together with the accused 
 person, before the magistrate, or some other one of the county having 
 cognizance of the ease. 
 
 § 21. Our criminal code, which particularly authorizes these proceed- 
 ings, which is much in accordance with the English' statutes, and those 
 of other States upon the same subject, still further provides that if the 
 magistrate is satisfied that there is urgent necessity for it, the search 
 may be ordered to be made in the night-time ; and when the warrant 
 is executed by the seizure of the property or things described, the same 
 shall be safely kept to be used as evidence. And if the magistrate, 
 upon examination, is satisfied that the offense has been committed, he 
 shall retain such things, or require the sheriff to do so, until the case 
 is finally disposed of in court. 
 
 § 22. Upon the conviction of the offender, the property stolen or em- 
 bezzled, or obtained under false, pretenses, shall be returned to its owner; 
 and the other things specified shall be burnt or destroyed under the 
 direction of the court ; but if the offender shall be discharged, either 
 before the magistrate or the court to which he is recognized, the prop- 
 erty shall be restored to the person in whose possession they were found. 
 But when the person in whose possession money or other property won 
 at gaming has been found shall be convicted, such money or other prop- 
 erty shall be liable to pay any judgment which may be rendered against 
 such person. 
 
 > See 4 Stephens's Com. 357 ; the Crim. Code, g 13-20. 
 39 
 
610 CRIMINAL LA W. [book it, 
 
 § 23. 2. The examination which takes place before the magistrate 
 on the return of the warrant, with the accused in custody, or when he 
 voluntarily or otherwise appears, so as to give the court jurisdiction 
 over him, is a proceeding as a preliminary step to a more formal trial 
 in the common pleas or higher court. It is an inquiry into the matter 
 to ascertain whether there is a sufiScient or probable cause to require 
 the detention of the accused for a further and a more careful trial, or be 
 discharged. Such examination should be had without any unnecessary 
 delay ; and after the return of the warrant, with the accused in custody^ 
 the matter must be disposed of, and the inquiry closed within four days, 
 for by our law' the accused cannot be retained in custody waiting for 
 evidence, or for any other cause, beyond that time ; for then the pris- 
 oner is entitled to his discharge, unless in the mean time the magistrate 
 has closed the examination, and determined that there is sufficient cause 
 against him to warrant his being bound over to court for a further trial. 
 
 § 24. During the progress of the examination, where the case is not 
 capital, and it becomes necessary to adjourn the examination, the 
 accused may give bail, with such security as the magistrate may deem 
 reasonable, for his appearance from time to time ; but in no case shall 
 such adjournment, under bail , and recognizance, be for a longer period 
 than twenty days, without the consent of the accused. But without 
 such bail, the accused is to be retained in custody, and, from time to 
 time during the examination, lodged in jail or some other place of con- 
 finement, as may be ordered by the magistrate ; and in the mean time 
 it is the duty of the officer to provide sustenance for the prisoner. 
 
 § 25. If, in the court of examination, the case has been adjourned for 
 a time, and the accused has been let to b.ail under a recognizance, and 
 he does not appear at the time required, or otherwise fail to comply 
 with the terms of his recognizance, the magistrate shall declare the 
 same forfeited, and transmit a transcript of his proceedings to the proper 
 court above, who shall proceed thereon as though the recognizance had 
 been taken in such court. And if, in the process of the examination, 
 when the case is a misdemeanor, the magistrate, at his discretion, may 
 receive the accused's plea of guilty to the charge, and sentence him to 
 such punishment as he may deem proper, within the limits of the pen- 
 alty annexed to the offense, and the payment of the costs, or at his dis- 
 cretion order the accused to enter into a recognizance to appear at 
 court, and such plea of guilty can only be received where the complaint 
 was made by the party injured. This restriction, as to the plea of 
 guilty, is made to prevent what is sometimes attempted to be done, for 
 the party accused to procure an ex parte proceeding in the absence of 
 the person injured, and by a false or imperfect representation of the 
 
 » The Crim. Code, ? 81. 
 
CHAP. IV.] CRIMINAL PROCEDURE AND PRACTICE. 611 
 
 facts, procure, upon a plea of guilty, a judgment for a nbminal or inade- 
 quate penalty. But such ex parte proceedings have usually been held 
 to be a.fraud upon the administration of justice, and therefore void, and 
 no bar to a subsequent genuine prosecution. 
 
 § 26. The examination before the justice is closed upon his determin- 
 ing that the accused should be discharged, or bound over to court for 
 trial there. One or the other of these events should be attained with- 
 out any unnecessary delay, and the examination should be in the pres- 
 ence of the accused ; the only exception to one or the other of these re- 
 sults is where the magistrate iu his discretion receives the plea of 
 guilty in a case of misdemeanor prosecuted by the injured party. The 
 inquiry before the magistrate is to ascertain if there be a probable cause, 
 and it is the practice, in this country, to fairly hear the witnesses on 
 both sides, and decide the case accordingly ; but it is inexpedient to go 
 further than to be fully satisfied that there is such probable cause as 
 should be more fully examined in the court above. In case the magis- 
 trate finds there is a probable cause for a trial in court, and that the 
 case is one in which he ought not to receive a plea of guilty, and also 
 that it is a bailable offense, he should then determine the amount of 
 bail, and order the accused to enter into such recognizance for his ap- 
 pearance at court to answer for the offense, and in default thereof, to 
 order him to be committed by issuing a warrant for that purpose 
 called a mittimus. 
 
 § 27. Upon this determination the magistrate should proceed to take 
 the required recognizance, or, in default, to issue the mittimus, which 
 orders the officer, that whereas the accused has been apprehended upon 
 a charge of having committed the offense stated upon the oath of the 
 complainant, and upon examination was required to give bail iu the 
 stated sum, conditioned for his appearance at court, and not to depart 
 without leave, which he neglected and refused to do, the officer was 
 therefore required to take the accused to the keeper of the county jail, 
 there to be safely kept until discharged by due course of law. The 
 magistrate should also recognize the witnesses to appear at court on 
 the trial of the case as witnesses ; and, in important cases, where he 
 entertains doubts as to the appearance of such persons as witnesses, 
 should also require them to give bail, and if refused, to commit them to 
 jail. 
 
 § 28. The magistrate should keep a full and fair docket of these pro- 
 ceedings, and make a transcript of the same, which, together with the 
 recognizances taken, he should return to the clerk of the court in which 
 the accused is to have his trial and is bound to appear. When such re- 
 cognizances and transcript are so returned to the clerk, it is his duty to file 
 the same, and enter the cause on the docket of the court, together with 
 date, amount, names of the bail, and costs on the recognizance, which, 
 
612 CBIMINAL LAW. [book it. 
 
 after that, shall be considered as a recognizance of that court, and may 
 be proceeded upon accordingly. 
 
 § 29. When a person shall have been committed to jail, after the ex- 
 amination before the magistrate, charged with the commission of any 
 crime or offense, and wishes his case to be examined before the "probate 
 judge of the county, the jailer shall give to the probate judge, clerk, and 
 prosecuting attorney at least three days' notice of the time of holding 
 an examining court, who shall accordingly attend at the court-bouse, 
 and the judge, having examined the witnesses and the accused, if he 
 request it, shall discharge the accused, if he find there is no probable 
 cause for holding him to answer; otherwise, to admit him to bail, or 
 remand him to jail. This examining court before the probate court 
 is in the nature of an appeal, and he has power to adjourn such court 
 from time to time, as he shall deem necessary for the furtherance of jus- 
 tice, on good cause shown by the State or the accused. And, upon the 
 final hearing and determination of the case, he shall let to bail, or re- 
 mand to jail, and return to court his proceedings very much in the same 
 manner as the magistrate is required to do, upon the termination of an 
 inquiry before him. 
 
 § 30. 3. The hail is he who is surety for another, and in legal pro- 
 ceedings, giving bail means the giving of the obligation by a surety 
 that some act shall be done, or something performed for another. In 
 criminal matters, it is where a person is relieved from the custody of 
 an ofiBcer to insure his appearance at a given time, to answer something 
 required of him, by means of another becoming his surety or bail that 
 the appearance shall be had, or the thing required to be done.' This 
 is usually accomplished by the surety entering into a bond or recog- 
 nizance in a certain sum of money, payable to the State or the oppo- 
 site party, to be void upon condition that the act required be faithfully 
 performed. When a person is in custody for the purpose of securing 
 his appearance at a certain time, and he gives hail for that appearance 
 in court, the theory of the transaction is, that the custody of the 
 prisoner is transferred from the oflBcer to the bail, who has a right to 
 assume that custody over him. This warrants the common expression, 
 " that the prisoner has been delivered to bail." The bail, therefore, has 
 the right, at any time, to take the prisoner, so " let to bail," into his 
 own custody for safe keeping, and to be delivered up in discharge of 
 his bond or recognizance. 
 
 § 31. Upon the bail being thus given, the prisoner is discharged 
 from custody, but the bond or recognizance remains with the court, or 
 officer taking it, so that the bail has nothing in his hands to show the 
 transaction, and to warrant his assuming custody over the prisoner. This 
 
 'See ante, B. i. ch. x. J19. 
 
CHAP. IV.] CRIMINAL PROCEDURE AND PRACTICE. 613 
 
 evidence and warrant is, however, furnished the bail on request, by the 
 court or officer who let the prisoner to bail, by means of what is called 
 a " bail pieced It is a certificate from the court or officer of the facts 
 of the case, — of the letting to bail of the prisoner to the bail, — and it is 
 usually given by the clerk of the court, under the seal of the court, and 
 looked upon as a warrant of high authority, and everywhere respected 
 as such, and by comity even in a sister State. By this authority the 
 bail takes his prisoner into his custody, to deliver him up or make 
 bis appearance in court. 
 
 § 32. Whenever the bail is desirous to do so, he has thus the right 
 to take the prisoner, and surrendering him in court, or in vacation to a 
 judge, who will order him to the custody of an officer to be committed, 
 unless he gives other bail, satisfactory to the court or judge, and there- 
 upon the bail is discharged, and his exonerature entered of record. 
 This authority of the bail gives him great indemnity against his respon- 
 sibility for the forthcoming of the prisoner, and generally an easy and 
 ready relief from responsibility on account of being bail. 
 
 § 33. The bail becomes bound for his undertaking by entering into 
 either a bail bond or a recognizance. The former is where the bail 
 is acknowledged, and enters into his obligation under his hand and seal, 
 as a writing obligatory ; the latter, where he appears before the court, 
 or proper officer, and thus openly acknowledges his obligation, which is 
 then entered of record, and is certified as a transcript of the record. 
 The new criminal code of Ohio, however, requires that the recogni- 
 zance, taken during vacation, shall be signed and sealed by the parties, 
 and certified by the officer.' The security thus given for the identity 
 of the person may be some excuse for this confounding of names and 
 things. 
 
 § 34. It IS further provided, that where the prisoner, under a recog- 
 nizance, shall fail to appear and answer, or a witness to appear and tes- 
 tify, according to the terms of his recognizance, his default shall be 
 entered of record, as forfeited in open court ; and for this purpose it is 
 usual to call the accused and his bail by proclamation made by the 
 crier in open court. When the forfeiture is thus taken, it becomes the 
 prosecuting attorney for the proper county to prosecute a suit on the 
 recognizance, by a civil action for the collection of the penalty, and such 
 proceeding shall be in accordance with the code of civil procedure so 
 far as applicable. The court, in which such action for the penalty of a 
 forfeited recognizance is brought, may remit or reduce any part or the 
 whole of such penalty, and render judgment thereon, according to the 
 circumstances of the case and the situation of the party, and upon such 
 terms and conditions as shall seem to the court just and reasonable. 
 
 1 See Ohio Cr. Code, I 61. 
 
614 CRIMINAL LAW. [book it. 
 
 And when it is made to appear that, after the rendition of such judg- 
 ment, the accused had been arrested and surrendered to be tried, the 
 court might also remit or reduce the amount of the judgment. 
 
 IV. HABEAS COEPUS. 
 
 § 35. The writ of habeas corpus is the great writ of civil liberty, both 
 in England and this country. It was known in ancient times to the 
 English law, but its name and use were known for other purposes than 
 those to which it is now applied, which gives to it its present celebrity. 
 It was used merely as a means to bring a person incarcerated from an 
 inferior jurisdiction to be tried in a superior court; or issued from one 
 jurisdiction to another, in order to have the person of the prisoner pres- 
 ent to give testimony as a witness in the court where it was required. 
 When, however, the right and importance of personal liberty became a 
 matter better understood, and more dear to the English people, it be- 
 came a convenient writ to be used for its present purpose. This was 
 not until after the restoration of Charles II., when the celebrated habeas 
 corpus act was passed, which has been looked upon as their second 
 magna charta. This law has become the basis of similar laws in the 
 United States, and equally appreciated in both countries. Throughout 
 the United Kingdom and the United States, this great writ, and the 
 laws governing it, are equally well known, and as often applied for 
 redress.' 
 
 § 36. In addition to what is said in the former part of this work 
 under Absolute Rights and Civil Liberty, it is required that something 
 more should be said in regard to habeas corpus proceedings in crim- 
 inal cases. Although this writ may be brought into requisition when- 
 ever a person is restraiued of his liberty, whether imprisoned in the 
 custody of a law officer or that of a private individual, — no matter 
 whether it is under a civil or criminal complaint or proceeding, — when- 
 ever it can be alleged that he is wrongfully and unjustly restrained. 
 But it is in criminal cases that an appeal to this writ is most frequently 
 made; and it is in such cases where, under the pretense of a criminal 
 prosecution, unfounded and unjust proceedings are instituted for the 
 purpose of gratifying malice, or revenge, or under a misapprehension, 
 that its great value becomes apparent. 
 
 § 37. Upon presenting a petition, alleging the illegal restraint, to the 
 proper court or judge, accompanied by an affidavit or evidence showing 
 a probable cause for the allegation that there was an illegal restraint of 
 the petitioner, he would be entitled to have the writ issued, by which 
 
 » See ante, B. ii. ch. i. ? 2-7, Absolute Eights; 3 Stephens's Com. 693; S 
 Blackst. Com. 128; Hiird on Habeas Corpus, passim. 
 
chap.it.] CRIUmAL PROCEDURE AND PRACTICE. 615 
 
 the officer is commanded to have the body, with the cause of detention 
 (habean corpus cum causa), of the complainant before the court or judge 
 forthwith, to do and receive whatever may be justly considered iu his 
 favor. The observance of these duties by the judge, and all who may 
 be concerned with the matter, is enforced by severe penalties for the 
 violation, or the improper delay in the execution of any of them. 
 
 § 38. The great English habeas* corpus act of 31 Charles II. author- 
 izes the application for the allowance of this writ to be made to any of 
 the judges of England, whenever the personal liberty is illegally vio- 
 lated. It required the writ to be expeditiously returned, and the case 
 heard and determined according to law and justice, without any unne- 
 cessary delay ; and if the writ be denied in a proper case, or the officer 
 neglect to make due return, or shift the custody from one to another ; 
 or if any one shall recommit any person on the same complaint after 
 being once delivered on habeas corpus, all persons who thus oppose or 
 violate this law are subject to heavy penalties and fines. This act of 
 the British Parliament, and their practice under it, have been the basis 
 of the statutes and practice iu this country. , The law in relation to 
 proceedings under a habeas corpus is very similar in cases under the 
 jurisdiction of the United States or any of the States, so that there is 
 but little variation in the law or practice under either. The statute 
 of Ohio presents, perhaps, as great a deviation as any, and that will 
 now be analyzed and presented. 
 
 § 39. TJie statute of Ohio in relation to habeas corpus has two forms 
 of writs. The first follows the form and proceedings as allowed under 
 the English statute ; the second is permitted to be used where the com- 
 plainant is not in the custody or restrained of his liberty by any sheriff, 
 marshal, or certain ofBcers of the law, but by some private authority or 
 some other officer illegally. In the first instance, the writ and proceed- 
 ings are like the ordinary proceedings in cases of habeas corpus, as stated 
 in relation to the absolute rights of persons ; but the second applies 
 ■whenever the complainant is in any manner restrained of his personal 
 liberty by any private person or officer other than the sheriff of the 
 county, or the United States marshal, or one of the executive officers 
 named in the statute. When complaint is made in such a case, a writ 
 shall issue directed to the sheriff of the county, commanding him that 
 he take and have the body of the complainant, now imprisoned and 
 restrained of his liberty by A B, of Deal, .before the judge forthwith, 
 to do and receive what the said judge shall then and there consider in 
 his behalf; and summon the said A B then and there to appear before 
 said judn-e to show the cause of the detaining the complainant. 
 
 8 40. This is the proper writ to be issued in all cases where there is 
 an alleged illegal restraint upon the liberty of any person by any one 
 other than the sheriff of the county or the United States marshal. 
 
616 CRIMINAL LA W. [book it. 
 
 When such writ is issued against any other ofiBeer, as the person who 
 is charged with the illegal restraint, he should be treated as a private 
 individual, and his official character appearing in the return will be no 
 objection to the proceedings when such ofBcer is any other than the 
 sheriff or the United States marshal. This writ may be served by the 
 sheriff in any county in the State, or it may be directed to the sheriff 
 of any other county ; and when issued by the court it shall be returned 
 before one of the judges. The person in custody, and the person detain- 
 ing him, when either is not known by his true name and designation, 
 may be described by any assumed appellation, and any one served with 
 the writ shall be deemed the person intended. 
 
 § 41. When any person, other than aregular law ofScer, — sheriff, mar- 
 shal, etc., — is summoned as the person having the custody, he shall re- 
 turn to the summons an answer duly signed and under oath — 1, whether 
 or not he has the party in his power, custody, or restraint; 2, in case 
 he has, he shall set forth at large his authority, and the true cause of 
 such imprisonment and restraint, with a true copy of the warrant or 
 any process, if any, by which the party is restrained ; and 3, if, in case 
 the party has been in his custody, and has transferred his custody to 
 another, he shall state particularly to whom, at what time, for what 
 cause, and by what authority such transfer was made. 
 
 § 42. If, upon the return to such writ of habeas corpus, it shall appear 
 that the person in custody was so detained under any warrant or com- 
 mitment in pursuance of law, the return shall be considered as prima 
 facie evidence of the cause of detention ; but if the person so detained 
 is restrained of his liberty by an alleged private authority, the return 
 to the writ shall be considered only as a plea of the facts therein stated, 
 and the party claiming the custody shall be held to make proof of the 
 facts ; and upon final determination of the case, the court' or' judge 
 shall make such order, as to costs, as the case in justice may require. 
 The proceedings must be recorded by the clerk, and, when had before a 
 judge, he shall make such return to the clerk as will enable him to do 
 so. These proceedings may be reviewed in error, as in other cases in 
 the higher courts. 
 
 § 43. The mode of proceeding, under the second form of the writ, is 
 not at all inconsistent with that under the former writ. The statute, 
 giving such second writ and the form of proceeding under it, is nothing 
 more than particularizing the duties that should be performed in any 
 case of habeas corpus, and prevent its being evaded. Ttiis writ is 
 more efficient and answers all exigencies better than the former, and 
 
 1 The statute directs in what manner the costs may he divided. No fees can 
 be demanded in advance. See the statute and amendment, — Stat. Feb. 22, 1811, 
 and Amend. Feb. 8, 1847, 1 Swan & C. Stat. 681-84. 
 
CHAP. IV.] CRIMINAL PROCEDURE AND PRACTICE. 617 
 
 the court or judge, ia either case, may well use the direction of the 
 statute as directed in relation to this record writ, which has the great 
 advantage of being effective, by its being directed to the sheriff, requires 
 him to bring the incarcerated person before the court or judge, and to 
 summon the person who so restrains him of his liberty to answer 
 therefor. 
 
 § 44. For the sake of securing the liberty of the citizen, the constitu- 
 tion of Ohio provides :— " The privilege of the writ of habeas corputi 
 shall not be suspended, unless, in case of rebellion or invasion, the pub- 
 lic safety require it." . . . "All persons shall be bailable by sufficient 
 sureties, except for capital offenses where the proof is evident, or the 
 presumption great. Excessive bail shall not be required ; nor excessive 
 fines imposed; nor cruel and unusual punishment inflicted." This con- 
 stitutional declaration in favor of personal liberty, and against illegal 
 oppression, is not only a guaranty of a proper and humane administra- 
 tion of the law, but the law itself everywhere declares that no person, 
 in this country, shall be imprisoned, or deprived of his liberty, except 
 by due process of law, which is thus put under the protection of this 
 great remedial writ — the writ of habeas corpus.^ 
 
 § 45. In contemplation of law, every restraint upon a person's liberty 
 is an imprisonment, however slight that restraint may be, or the means 
 used to produce it. Whenever any person is detained, with or without 
 due process of law, he is entitled to the protection of this writ, unless 
 he be a person convicted of some crime or offense for which he stands 
 committed ; or a person committed for treason or felony, the punish- 
 ment of which is capital, plainly and specially expressed in the warrant 
 of commitment. These latter words, excepting from the benefit of the 
 writ, are those of our statute, and are in apparent conflict with the consti- 
 tution, which is, that all persons shall be bailable by sufficient sureties, 
 except for capital offenses, and does not except convicts. But in all cases 
 the courts are bound to see that the imprisonment is not illegal under 
 every pretense, and in practice there is no difficulty in reconciling this 
 conflict. 
 
 § 46. The privilege of the writ of habeas corpus is secured as well by 
 the Constitution of the United States as that of the State, and when- 
 ever any citizen may complain of an illegal restraint, he may apply to 
 either jurisdiction for the proper relief. When the restraint is clearly 
 illegal, either court will relieve and discharge ; but where the case ap- 
 pears to be one within the jurisdiction of the other system of govern- 
 ment, the judges of either will, as a matter of comity at least, defer 
 the case for a hearing in the proper court and jurisdiction. The same 
 course is also pursued in questions of jurisdiction between the several 
 
 1 See Const, of Ohio, art. i. J g, 9. See also aate, B. i. eh. x. g 19. 
 
618 CBIMINAL LAW. [book it. 
 
 courts of the State, unless it clearly appears to be a case of illegal re- 
 straint. This course is more cautiously observed between the jurisdic- 
 tion under the Union and that of the State, not only on account of the 
 due comity between courts of the several jurisdictions, but also on ac- 
 count that the Constitution of the United States clearly intended that 
 all questions in relation to the rights and jurisdiction under the Federal 
 government should be decided by their own courts.' 
 
 § 47. Upon these applications for the writ, the court or the judge is 
 not precluded from hearing the case by a mere allegation that it was 
 within the jurisdiction of the United States, or any other matter that 
 might render the Imprisonment lawful, but the court will proceed witii 
 the hearing until it shall clearly appear that such allegation, in fact, is 
 really true. But when it so appears to the satisfaction of the court, it will 
 proceed no further in the case, except to remand it ; for, as it was said 
 by the supreme court of Ohio, "it is legally incompetent for the court 
 to withdraw, by a writ of habeas corpus, persons in the custody of the 
 United States Courts, charged with violation of an act of Congress," 
 while the proceedings were there pending, even upon the allegation that 
 the uroceedings were unconstitutional and void/" And even upon these 
 preliminary applications for the writ, if it appear, from the showing'of 
 the applicant, that upon the hearing of the case the prisoner must be 
 without doubt remanded, upon the principle of comity or law, the writ 
 upon such application should be refused. 
 
 § 48. Proceedings under habeas corpus are as frequently had in do- 
 mestic and civil cases almost as in criminal ; as in cases of apprentices, 
 guardians, and wards, or any other private or legal assumption of right 
 to restrain and keep any one in the care and control of another. In 
 such cases, where the right is assumed by a father or guardian over a 
 child, or any like authority of domestic control, the court should hear 
 all proper evidence to enable it to determine the right of the matter, and 
 to protect the rights of the feeble. So in cases between husband and 
 wife, as to the custody of their children, all proper evidence should be 
 admitted to enable the court to judge of the qualification and fitness of 
 either to have the control and care of a child ; and the question is deter- 
 mined with reference to the best interest of the child, and neither parent 
 has any right that can conflict with its best interest and welfare.* 
 
 § 49. The instances where the writ of habeas corpus should be denied, 
 when proper application is made for it, are but few ; usually it is due 
 ex dehito jusiitiee. There are cases, however, where it might be refused, 
 either because — 1st, the positive law regulating it so directs ; or 2, on 
 
 1 Soe the matter of Collier, 6 0. S. R. 55 j Ex parte, Shars. 7 O. S. E. 81. 
 « See Ex parte Bushnell, 8 0. S. E. 599. 
 » See Gishwilor vs. Dodoz, 4 0. S. E. 615. 
 
CH.VP. IV.] CRIMINAL PROCEDURE AND PRACTICE. QIQ 
 
 account of known rules of practice, founded upon sound principles of 
 prudential justice, that the court or judge ought to defer the case or 
 question to some other tribunal, to which it rightfully belongs. 
 
 § 50. 1st. The writ may be peremptorily denied, where, upon the appli- 
 cation, it appears that the party has been committed upon a proper pro- 
 cess, charged with a capital crime, plainly and specially expressed in 
 the warrant, and nothing to show that the proof was not " evident or 
 the presumption great;" or where the party has been duly convicted 
 of some crime or contempt of court, for which he stands committed. 
 These are the excepted cases in the constitution and the statute. Yet, 
 even in these cases, there may be instances where, upon extrinsic evi- 
 dence submitted with the application, it might be proper to allow the 
 writ for the purpose of examining such extrinsic matter, so that if it 
 appear to be true, and of sufficient weight in law to be so regarded ; 
 as where, after the conviction, the party in custody is not the party con- 
 victed, — that the convict was some other person ; or where the party 
 may be in custody upon a mere charge of a capital crime, but with a 
 satisfactory showing that the evidence was doubtful and the presump- 
 tion not great. 
 
 § 51. 2d. The writ may also be refused upon principles of sound legal 
 discretion and judicial prudence ; as where it is refused upon proper 
 deference to the character and authority of the court by whom the com- 
 mitment was ordered, and where it may be properly investigated, and 
 reversed upon error, if there be anything wrong. Thus, where the pro- 
 bate judge was applied to for the writ, and it appeared that the accused 
 had been committed by order of the court of common pleas, upon a crim- 
 ical charge against him, in which he was ordered to give ban for his 
 future appearance, which he refused to do, and was therefore committed ; 
 or where the accused had been examined before a court or judges of 
 competent or concurrent jurisdiction, and therefore, from matter of 
 comity, the judge will refuse it. 
 
 § 52. Still, in all cases where a proper application is made for the 
 writ, claiming that the restraint was wrongful and unjust, it should be 
 allowed, unless it clearly appeared to be within the excepted cases ; for 
 it is due to justice to examine the case, and ascertain whether it be one 
 where the complainant should be discharged, or bailed, or recommitted. 
 Such application should be disposed of with expedition, and without any 
 unnecessary delay ; and if allowed, the clerk should issue the writ as 
 a ministerial act, and make it returnable forthwith, — before the court, 
 if in Session, or before a judge in vacation. Any neglect or refusal of 
 these duties, on the part of any officer, will render him subject to the 
 heavy penalties of the statute. 
 
 § 53. Upon the appearance of the party, the case should be heard in 
 a summary manner upon the complaint and the return to the writ, un- 
 
620 CRIMINAL LA W. [book iv. 
 
 less upon good cause shown, a continuance becomes necessary for the 
 purpose of procuring the proper evidence. In this hearing and inves- 
 tigation the case may assume to be one of tliree different classes : — 1, 
 it niay be a case in its progress before indictment found ; or 2, after 
 indictment is found and before conviction; or 3, after a conviction. 
 Each of these will require an investigation. 
 
 § 54. 1. When the case to be examined is one in its progress of prose- 
 cution, before indictment is found, and it has not been before a higher 
 court or a concurrent jurisdiction, the judge or court will feel a greater 
 freedom to act and investigate the case. At this investigation the first 
 inquiry is to ascertain whether it is a bailable case at all, or not. The 
 only exception to its being bailable is that made by the constitution, ^- 
 " capital offenses, where the proof is evident or the presumption great." 
 At one time it was the rule not to hear extrinsic evidence outside of 
 the charge, as made in the papers, as an alibi, or self-defense, and the 
 like. This was putting the question of release and bail on the same 
 terms, though there is a great difference between them, for a person 
 may be entitled to bail when evidence for his discharge should not be 
 heard. 
 
 § 55. There may be instances where it would be proper to hear 
 evidence, even in a capital case, for the purpose of ascertaining whether 
 the " proof was evident or presumption great," or not, so as to ascertain 
 if the case were bailable, within the terms of the constitution, but not 
 for the purpose of being discharged. The court must examine the 
 evidence in order to ascertain, in the first place, if the case will admit 
 of bail at all, and in the next, to ascertain the proper amount of bail to 
 be taken. 
 
 § 56. 2. "Where an indictment has been found by the grand jury, or 
 an inquest returned by the coroner's jury, and the case is one of those 
 within the exceptions of the constitution and statute, the evidence and 
 presumption are thereby greatly enhanced against the accused, and 
 therefore the action of the court, and especially of the judge, should be 
 conducted with a great deal more caution. It has been the practice, in 
 some courts, to receive the indictment or inquest as conclusive, and 
 exclude all other evidence upon the question of guilt as stated. But 
 of late this has been disapproved, for very substantial reasons ; for the 
 indictment might be admitted and avoided, as by showing that it was 
 actually against another person of the same name ; or that the facts 
 made it a clear case of self-defense. In the first instance, the evidence 
 should be received to show that the prisoner should be released ; and, 
 in the second, to ascertain and settle the amount of bail ; for though 
 the accused might be clearly entitled to an acquittal on his plea of self- 
 defense, yet, in case of homicide at least, he should be bound over to 
 take bis trial, and have the question settled by a verdict of a jury. 
 
CHAP. IV.] CRIMINAL PROCEDURE AND PRACTICE. 621 
 
 § 57. There is still a stronger case to show the propriety of admitting 
 the evidence, even where there was an indictment for murder in the 
 first degree; for, on the trial, the jury might find the accused guilty 
 only of murder in the second degree, or manslaughter, and in these 
 cases the grand jury do not discriminate very closely, but usually find 
 the indictment for the highest offense named, and let the accused reduce 
 it on trial if he can. In cases of murder in the second degree, and man- 
 slaughter, the accused is clearly entitled to be admitted to bail, for these 
 offenses are not capital ; and if the accused can, by his evidence, clearly 
 show that the case is not murder in the first degree, he should be per- 
 mitted to do so, and bring his case within his constitutional privilege. 
 So he might also be permitted to show, in case the indictment itself did 
 not show it, that the court in which the indictment was found had no 
 jurisdiction of the case. 
 
 § 58. 3. When there has been a conviction, the cases where a habeas 
 corpus should be allowed are reduced to a very few instances, and those 
 should be exercised with a great deal of caution and prudence. The 
 statute apparently excludes a case after conviction from the operation 
 of a habeas corpus, where the warrant of commitment stated the offense 
 plainly and specifically. There are, however, a few instances where 
 the writ should be allowed, even after a conviction ; as in the case of 
 the want of jurisdiction, or mistake in the identity of the person con- 
 victed, and the like. But the most clear case would be, where the 
 mittimus stated an offense not within the jurisdiction of the court that 
 passed the conviction, or stated no offense at all ; for it is a principle 
 applicable to all warrants and commitments, that they should show a 
 sufficient cause of complaint to justify the apprehension and confine- 
 ment. But after conviction, not only should this interference be exer- 
 cised with great caution, but with due regard to the grade and charac- 
 ter of the court where the conviction was had. When there is a 
 remedy in that court, upon motion to correct irregularities and the like, to 
 pursue some appellate proceeding, as error, or certiorari, or the like, the 
 party should be compelled to pursue them, except in very clear cases 
 demanding immediate relief. When the party is pursuing such appel- 
 late relief, it would be right in the mean time, upon habeas corpus, or 
 otherwise, to admit him to bail, until such appellate proceedings are 
 determined. 
 
 § 59. Where a case is heard upon habeas corpus, if it should appear 
 that the warrant by which the accused is committed, or held in custody, 
 is defective, so that he may be entitled to be discharged upon it, still 
 the judge, upon so announcing his decision, should ascertain whether 
 there is a real cause of complaint within his jurisdiction back of the 
 warrant or not, and if it appeared in the affirmative, he should hold 
 the prisoner in custody until the matter can be investigated, and pro- 
 
622 CRIMINAL LAW. [book iv. 
 
 ceed to do so as in other cases of primary proceedings, or commit the 
 case to a magistrate to do so. Upon such examination the accused 
 should be discharged, let to bail, or committed, as in other cases. This 
 is the true practice, in order to prevent real offenders from escaping 
 upon mere technical objections, to warrants that are apparently de- 
 fective. 
 
 § 60. Persons in custody may be hailed without habeas corpus, in 
 pursuance of a provision in our criminal code, which directs that when 
 any person shall be confined in jail, charged with the commission of any 
 baiJable offense, whether committed before or after indictment found, 
 any judge of the supreme court, or judge of the common pleas within 
 his district, or the probate judge within his county, may admit such 
 person to bail.' For that purpose the judge may, by his special war- 
 rant under his hand and seal, require the sheriflF or jailer to bring such 
 accused person before him at the court-house, at a time stated in the 
 warrant, at which time the judge may take the recognizance of the ac- 
 cused, in such sum and with such sureties as he may deem proper, con- 
 ditioned for his appearance before the proper court, to answer the 
 offense charged. In fixing the amount of bail, the judge shall be 
 governed in the amount and quality of the bail required by the court of 
 common pleas, where any such directions shall have been given. This 
 proceeding is very much like that by habeas corpus, but less formal, 
 and confined to the question of giving bail; and when the accused fails 
 to give satisfactory bail, he must be remanded to prison. In all 
 cases where a recognizance is taken by any officer, he should in due 
 time return such recognizance to the clerk of the court having jurisdic- 
 tion and trial of the case. 
 
 V. GRAND JURY AND ITS PROCEEDINGS. 
 
 § 61. Both the Constitution of the United States and of the State of 
 Ohio require that all ordinary criminal prosecutions should be by the pre- 
 sentment or indictment of the grand jury. Throughout the Union the in- 
 stitution of the grand jury is well known and highly appreciated, both 
 on account of the protection it gives to the innocent from unfounded and 
 malicious prosecution, and the facility it affords for inquiry, and to bring 
 every offender to merited justice. It is an ancient institution borrowed 
 from the common law, and regulated here by our statute. No one can 
 be put to trial upon any charge of a crime, except some of the minor 
 offenses, unless upon a presentment or indictment of the grand jury, as 
 provided by the constitution. 
 
 § 62. Annually in October the trustees of the several townships are 
 
 ' See the Criminal Code, J 61. 
 
CHAP. IV.] CRIMINAL PBOCEDURE AND PRACTICE. 623 
 
 required, upon the requisition of the clerk of the court of common pleas, 
 to select and make out a list of their proportion of jurors, of the good, 
 judicious persons of their township, having the qualifications of elec- 
 tors, and return such list to the clerk. The names thus returned from 
 the several townships are by the clerk written on separate pieces of 
 paper and put into a box. These names are required to be in sufficient 
 number to furnish the grand and petit juries for each term of the court 
 during the year. From the box the clerk, thirty days before each term 
 of the court, in the presence of the sheriff, who first is to shake the box, 
 is to draw twenty-seven names, who are to serve as grand and petit 
 jury at the approaching term of the court. 
 
 § 63. A venire is to be issued by the clerk for each of the grand jury 
 and the petit jury, requiring the sheriff to summon each member of such 
 juries to attend the next term of the court in due time to serve as such 
 juror. The first fifteen names so drawn from the box constitute the 
 grand jury, and the next twelve names form the petit jury. When 
 those persons named in the venire for the grand jury appear at the time 
 appointed at court, they are to be impaneled as the grand jury for the 
 term. If a less number than the fifteen appear, the panel is to be filled 
 by the sheriff, upon order of the court, from the by-standers or the neigh- 
 boring citizens, of so many good and lawful men as are necessary to 
 complete the panel. If any of the jurors are discharged, upon the chal- 
 lenge of the prosecuting attorney, or otherwise, on account of the want 
 of qualification or regularity in the venire or summons, the same pro- 
 ceeding is observed in filling the panel to the number of fifteen. 
 
 § 64. When the panel is thus filled, they are then sworn or affirmed 
 and charged by the court as to the duties required of them by law. 
 The form of the oath, and the manner of administering it, is peculiar. 
 The court, in the first place, appoint a foreman of the grand jury, and 
 to him the oath is first administered, which is: " Saving yourself and 
 fellow-jurors, you, as foreman of this grand inquest, shall diligently 
 inquire, and true presentment make, of all such matters and things as 
 shall be given you in charge, or otherwise come to your knowledge, touch- 
 ing the present service. The counsel of the State, your own, and your 
 fellows, you shall keep secret, unless called on in a court of justice to 
 make disclosures. You shall present no person through malice, hatred, 
 or ill-will; nor shall you leave any person unpresented through fear, 
 favor, or affection, or for any reward or hope thereof; but in all your pre- 
 sentments you shall present the truth, the whole truth, and nothing but 
 the truth, according to the best of your skill and understanding." Then 
 the other jurors are sworn : " The same oath which A B, your fore- 
 man, hath now taken before you, on his part, you, and each of you, 
 shall well and truly observe and keep on your respective parts." The 
 fifteen persons thus summoned, sworn, and charged, shall be the grand 
 
624 CRIMINAL LA W. [book iv. 
 
 jury, who shall inquire of and present all crimes and misdemeanors 
 whatever, committed within the limits of the county in and for which 
 they are impaneled and sworn. 
 
 § 65. The grand jury, thus organized, then retire under the direction 
 of an officer to serve them, to a room assigned them for the purpose, 
 and there, with the aid of the prosecuting attorney, they proceed to the 
 discharge of their duties. The oath taken by the foreman is an admi- 
 rable epitome of the duties they are to perform, and of the manner in 
 which they should perform them. Witnesses in relation to criminal 
 matters are sworn in court and sent to the grand jury. This is usually 
 done at the instance of the prosecuting attorney, who is the law officer 
 of the county, and prepares all business for the action of the grand jury, 
 and aids them with his counsel and advice. His duties are attended 
 with great responsibilities and importance to the county, as to the pru- 
 dence and discretion with which the criminal business is conducted. 
 He prepares for the jury all indictments which should come under their 
 investigation. The grand jury may require him to bring before them 
 any matter for investigation which their sense of duty may dictate, 
 though contrary to the opinion of the prosecuting attorney as to its pro- 
 priety, for they are the responsible and sworn body for the purpose ; 
 but generally, where they are satisfied with his honesty and faithful- 
 ness, the better and most prudent way is to rely upon his advice and 
 his responsibility. 
 
 § 66. The indictment, before it is found true by the grand jury, is 
 called a bill. This they consider under the evidence, and determine 
 whether it is true or not. This determination is ascertained by the fore- 
 man taking the sense of each juror upon the subject ; and it is required 
 that twelve of them, at least, should agree in finding the bill to be true, 
 or it must be rejected. If there be twelve of them concurring in finding 
 the bill, it is the duty of the foreman to indorse on it " a true bill," al- 
 though his own opinion be against it ; but if twelve do not agree, it is 
 indorsed " not a true bill." When the grand jury have thus disposed of 
 one or more of such cases, they return into court in a body, and, by their 
 foreman, present their finding to the court. They then, if they have fur- 
 ther business before them, return to their room for further deliberation. 
 
 § 67. The grand jury is a very important body of men in the admin- 
 istration of justice, and frequently have an important influence, by their 
 opinions and presentments, upon the government itself. Coming as 
 they do from various parts of the county, they have full opportunity of 
 learning what crimes have been committed and should be presented ; 
 and also of knowing how the public interest of the county is officially 
 attended to. They therefore frequently take notice of the condition of 
 public buildings, roads, and highways. It is specially made their duty 
 to visit the county jail and report upon its condition. If they find any 
 
CHAP. IV.] CRIKINAL PROCEDURE AND PRACTICE. 625 
 
 ofScer neglecting or violating his duty they present him. Either before 
 or after they have agreed upon a presentment or indictment, the prose- 
 cuting attorney furnishes for them the proper bill, and aids them, when 
 necessary, to put their presentment in a proper form. It is also his 
 duty to see that such witnesses as are needed, or the grand jury may 
 desire to have before them, be sworn in court as witnesses, and sent to 
 the grand jury. 
 
 § 68. It is to be observed that the business of the grand jury is con- 
 fined to the county and to its jurisdiction.' It is an important and 
 wholesome provision of our law that no one can be indicted or pre- 
 sented except within the county in which the offense was committed. 
 After the bill has been found a true bill and returned as such into court, 
 it is henceforth called the indictment ; and if such indictment is against 
 a person not already in custody, the prosecuting attorney will see that 
 the fact is not disclosed until proper process is issued for his apprehen- 
 sion ; then the indictment is docketed and made public. The transac- 
 tions of the grand jury, by their oaths, are required to be kept secret to 
 themselves ; and no one of them, or any ofBcer of the court, is permitted 
 to disclose that an indictment is found until the court makes it public. 
 And no grand juror is allowed to state or testify in court in what man- 
 ner he or any of his fellow-jurors voted on any question before them, 
 or what opinion was expressed upon any such question. 
 
 § 69. For the purpose of preventing trifling and unfounded prosecu- 
 tions, the code provides that no indictment shall be found a true bill for 
 any misdemeanor, unless the proseicuting witness's name shall be in- 
 dorsed thereon, by which he becomes liable for the payment of the cost of 
 the prosecution in case the accused is eventually acquitted, except such 
 bill be found upon testimony sworn and sent to the grand jury by order 
 of the court, at the request of the prosecuting attorney or of the grand 
 jury ; which fact, that the same was so found, shall be indorsed upon 
 the bill instead of the name of the prosecuting witness. Any indict- 
 ment for a mere misdemeanor not thus indorsed, in one way or the 
 other, is subject to be quashed on motion to the court. 
 
 VI. AEKAIGNMENT AND PEEPAEATION POK TRIAL. 
 
 § 70. Upon the presentment of the indictment in court, if the accused 
 is not already in custody upon the charge, a warrant may be issued for 
 his arrest by the clerk, at the instance of the prosecuting attorney, in 
 either the session of the court or vacation. Such warrant may be issued 
 to the sheriff of the county, who may pursue and take the accused in 
 that county or any other in the State ; or, the warrant may be issued 
 to the sheriff of any other county. In either case it is the duty of the 
 sheriff to take the accused to the jail of the county, there to be kept to 
 
 40 
 
626 CRIMIMAL LA W. [book iv. 
 
 answer the charge of the indictment. When the case is a bailable 
 offense, the accused may give bail by a recognizance to the officer making 
 the arrest, where the court have so ordered and determined the amount 
 of the bail ; or when the charge is a misdemeanor, the officer may take 
 the recognizance at his own discretion, in any sum not less than fifty 
 nor more than five hundred dollars, conditioned for his appearance at 
 court to answer the indictment.^ 
 
 § 71. The code provides that it shall be the duty of the clerk of the 
 court, within three days, after the indictment is filed, to make a 
 copy of it for the sheriff to serve upon the accused ; and no one shall 
 be, without his assent, arraigned, or called on to answer to any indict- 
 ment, until one day shall have elapsed after the copy has been served 
 upon him.'^ Then the accused may be brought before the court, and if 
 he be without counsel, and unable to employ any, it shall be the duty 
 of the court to assign him counsel at his request, not exceeding two, 
 who shall have free access to the accused at all reasonable hours, and 
 who are paid for their services by the county. 
 
 § 12. The accused shall be arraigned by reading to him the indict- 
 ment, and the court shall ask him " Are you guilty of the offense therein 
 charged, or are you not guilty ?" He may then move to quash the in- 
 dictment, or plead in abatement, or demur, or plead in bar ; but the 
 code provides that the accused shall be taken to have waived all de- 
 fects which may be excepted to by a motion to quash, or plea in abate- 
 ment, by a demurrer to the indictment, or pleading in bar, or the 
 general issue. But he is permitted to plead the general issue — not 
 guilty — even after all other pleas and mode of defenses are decided 
 against him. He is not precluded from making any defense under the 
 plea of not guilty, by any previous motion, demurrer, or plea. If he 
 stands mute, and refuses to answer, the plea of " not guilty" shall be 
 entered for him. 
 
 § 73. If on the arraignment the accused pleads " guilty," it is entered 
 of record, and he is ordered into tlie custody of the sheriff until sen- 
 tenced ; but if he pleads " not guilty," it is entered on the indict- 
 ment, and the prosecuting attorney, under the direction of the court, 
 shall designate a day for trial within that term, unless the court, for 
 good reasons, continue the case to a subsequent term. 
 
 VII. CHANGE OP VENUE. 
 
 § 74. It has been remarked that all criminal prosecutions, by our law, 
 must be in the county where the offense was committed. The trial 
 cannot be elsewhere, except by the request or consent of the accused. 
 But it sometimes happens that, from some general excitement, or pre- 
 
 I See the Crim. Code, J 54. » Code, J 103. 
 
CHAP. IV.] CRIMINAL PROCEDURE AND PRACTICE. 627 
 
 judice, the accused cannot have a fair and impartial trial in the proper 
 county ; when this is the case, and the accused is able to show it to the 
 court by affidavits, oi- otherwise, the court is authorized to direct the 
 accused to be tried in some adjoining county. This is what is called a 
 change of the venue ; and when this is done, the clerk of the court shall 
 make out a certified transcript of the proceedings in the case, which, 
 with the original indictment, he shall transmit to the clerk of the court 
 to which the venue is changed, and the trial shall be conducted there 
 in all respects as though the offender had been indicted there ; but the 
 costs accruing from the change of the venue shall be paid by the 
 county in which the indictment was found. 
 
 § 75. When the court has thus ordered a change of venue, the clerk 
 shall issue a warrant, directed to the sheriff, commanding him to convey 
 safely the prisoner to the jail of the county where he is to be tried, 
 there to be safely kept until discharged by due course of law. The 
 witnesses are to be recognized to appear before the coui-t in which the 
 prisoner is to be tried, and all subsequent proceedings, as to trial and 
 judgment, are had in the court to which the case has thus been 
 consigned. 
 
 VIII. THE JURY AND PKOCEEDJNGS PEEPAEATOEY TO TRIAL. 
 
 § 76. The venire for the petit jury, it has been seen, is issued at the 
 same time and in the same manner as that for the grand jury. The 
 jury accordingly attend the court, and usually attend and try all the 
 cases at the term. But if, from any cause, there should be a lack of 
 jurors, as from the inability of a juror to attend, or from challenge, the 
 court orders the panel to be filled from the by-standers, as tales jurors, 
 or talesmen, as in civil cases ; and where a whole jury is wanted for 
 any cause, a venire may be issued, returnable forthwith, by which the 
 sheriff or other officer is commanded to summon twelve good and 
 lawful men of the neighborhood, having the qualification of a juror, to 
 serve as a jury in the court. 
 
 § 77. Such are the provisions for obtaining a jury in ordinary cases, 
 which are not capital. They are usually denominated the petit jury, 
 and also sometimes calleJI the common jury, or the traverse jury ; but 
 in capital cases the code authorizes a special jury, and when a person 
 is charged with a crime, the punishment of which is capital, and has 
 been arraigned and pleaded not guilty, it is the duty of the clerk of the 
 court, at the instance of the prosecuting attorney, lo issue a writ of ve- 
 nire facias, directed to the sheriff, and commanding him to summon 
 thirty-six jurors, being electors and householders, and otherwise having 
 the qualification of jurors according to law, to appear before the court 
 on the day fixed for the trial of the case to be specified in the writ, which 
 
628 CRIMINAL LA W. [book iv. 
 
 shall be served at least ten days before the day of trial. Where there 
 are two or more such capital cases, and there is to be a separate trial, 
 and, though jointly indicted, they are entitled to a separate trial, a simi- 
 lar venire facias shall issue in each ease. At the trial, such accused 
 person, of the jurors thus summoned shall be entitled to challenge 
 twenty-three peremptorily. For the purpose of enabling him to do so, 
 it is required that a copy of the panel of the jury, so returned by the 
 sherifi', shall be delivered to the accused at least three days before the 
 day of trial. 
 
 § 78. At the impaneling of such special jury in a capital case, the 
 prosecuting attorney is at liberty to challenge two jurors peremptorily 
 at the same time that the prisoner challenges his twenty-three ; and each 
 shall be entitled to challenge jurors for cause, the validity of which the 
 court shall try. The jurors so summoned, or such of them as are not set 
 aside on challenge, together with so many of the by-standers having the 
 qualification of jurors as will make up the number of twelve ; or if the 
 whole array be set aside, then twelve of such by-standers having the 
 qualifications of such jurors, as may not be set aside on challenge, shall 
 be a lawful jury for the trial of a person charged with an offense, the 
 punishment of which is capital. 
 
 § 79. In all other criminal cases, the ordinary petit or common jury 
 shall try the accused. In impaneling such jury the prosecuting attor- 
 ney and every defendant may peremptorily challenge two of the panel, 
 and any of them for cause, the validity of which shall be tried by the 
 court, on the oath of the party challenged, or on other evidence, which 
 challenge shall be made before the jury are sworn. If two or .more 
 persons be put on trial at the same time, each shall be allowed his sepa- 
 rate peremptory challenge. 
 
 § 80. These proceedings are very much in accordance with those of 
 the common law. In the mode and manner of making challenges, and 
 the disposition of them, there is some difference as regulated by our 
 code. As known at common law, challenges were either to the whole 
 array of the panel or to ihepoll, — i.e. to individual members of the panel. 
 These challenges were again either by way of principal challenge, 
 or challenge to the favor, — the former being those founded upon some 
 alleged cause ; the latter, on some probable or suspected favor or par- 
 tiality in the officers summoning the jury, or in the juror himself. 
 Challenges to the array or to the poll were decided by the court when 
 the grounds of the challenge were not controverted ; but if contested, 
 or where the challenge was iov favor, two triors were chosen to decide 
 the question, and aid in making up the jury. 
 
 § 81. By our code the triors are dispensed with, and all questions of 
 challenge are decided by the court; and this difference is here without, 
 any cause of dissatisfaction, for our judges are so disconnected from the 
 
cflfAP. IV.] CRIMINAL PROCEDURE AND PRACTICE. 629 
 
 government they can have no motive except an honest and impartial 
 discharge of their duties. But as English courts were formerly organ- 
 ized, there might be but little hope from a challenge for favor made to 
 a judge like Jeffreys. We here have no triors, and no challenge for 
 favor, as known to the common law ; but in all just objections of the 
 kind made to the court, upon suggestion of the grounds of such suspi- 
 cion of partiality or favor, the court will hear and determine the objec- 
 tion as challenge for cause. This, with the peremptory challenges 
 allowed, puts this matter without a just cause of complaint. 
 
 § 82. Challenges to the array are seldom made here, for the reason 
 that the character of the jury in no manner depends upon the clerk or 
 sheriff when a regular venire is issued; for the jurors are selected annu- 
 ally by the trustees of the several townships, from the best men of the 
 townships, without designating whether they are to serve on the grand 
 or petit jury. The name of each juror is drawn from the box in which 
 they are placed, as has been seen, in such manner that there is no room 
 for favor or partiality on the part of the clerk or sheriff. 
 
 § 83. Oar challenges here are usually to the poll, and are either for 
 cause or peremptory. The code provides that " the following shall be 
 good causes of challenge to any person called as a juror on an indictment:' 
 — 1. That he was a member of the grand jury which found the indict- 
 ment. 2. That he has formed or expressed an opinion as to the guilt 
 or innocence of the accused. 3. On an indictment for an offense the 
 punishment of which is capital, that his opinions are such as to preclude 
 him from finding the accused guilty of an offense punishable with death. 
 4. That he is a relation within the fifth degree to the person alleged to 
 be injured, or attempted to be injured, by the offense charged, or to the 
 person on whose complaint the prosecution was instituted, or to the de- 
 fendant. 5. That he has served on a petit jury which was sworn iu 
 the same cause against the same defendant, and which jury either ren- 
 dered a verdict which was set aside, or was discharged after hearing 
 the evidence. 6. That he has served as a juror in a civil case brought 
 against the defendant for the same act. '7. That he has been subpoe- 
 naed as a witness in the case. 8. The same challenges for cause shall 
 be allowed in criminal prosecutions that are allowed to parties in civil 
 cases." Such is the care that the law has taken to secure to the ac- 
 cused an impartial jury. These objections and challenges are to be 
 decided by the court ; and should the court unexpectedly decide a ques- 
 tion of challenge for cause against him, he may still make his peremp- 
 tory challenge to the extent of at least two jurors. 
 
 ' See Crim. Code, g 134 ; see also 3 Stephens's Com. 587, etc.; 4 Ibid. 418; 3 
 Blackst. Com. 349, etc.; 4 Ibid. 352, etc.; 1 Chit. C. L. 403-585, as to jury in 
 general in criminal cases. 
 
630 CBIMINAL LAW. [book it. 
 
 § 84. When the challenges are disposed of, and there are twelve jurors 
 in the panel, they are sworn or affirmed by the clerk in the following 
 form: "You shall well and truly try, and true deliverance make, be- 
 tween the State of Ohio and the prisoner at the bar (giving his name), 
 so help you God." When a juror insists upon being affirmed instead of 
 being sworn, the clerk, in lieu of the last words of the form, substi- 
 tutes these : " this you do as you shall answer under the pains and 
 penalties of perjury." 
 
 § 85. The case being thus prepared for trial, before proceeding with 
 the subject, there is a propriety, if not a necessity, that two important 
 subjects and heads in the law should be first considered, each occu- 
 pying a chapter, viz., Pleading and Evidence, as applied to criminal 
 proceedings. 
 
 CHAPTER V. 
 
 CRIMINAL PLEADING. 
 
 § 1. The following constitutional provision bears upon the whole of 
 the criminal proceedings, subsequent to the examination and commit- 
 ment, so that it becomes proper to notice it here. It is this: "Except 
 in cases of impeachment, and cases arising in the army and navy, or in 
 the militia when in actual service in time of war or public danger, and 
 in cases of petit larceny and other inferior offenses, no person shall 
 be held to answer for a capital or otherwise infamous crime unless on 
 presentment or indictment of a grand jury. In any trial, in any court, 
 the party accused shall be allowed to appear and defend in person and 
 with counsel ; to demand the nature and cause of the accusation against 
 him, and to have compulsory process to procure the attendance of wit- 
 nesses in his behalf, and a speedy public trial by an impartial jury of 
 the county or district in which the offense is alleged to have been com- 
 mitted ; nor shall any person be compelled, in a criminal case, to be a 
 witness against himself, or to be twice put in jeopardy for the same 
 offense.'" 
 
 § 2. Criminal pleadings, like those in civil cases, are intended to in- 
 form the accused definitely of the cause and nature of the complaint, 
 that he may be informed what he is called upon to answer and defend, 
 
 1 Const, of Ohio, art. i. \ 10. And a similar provision is embodied in the 
 Const, of U. S. See 5th and 6th amendments. The 6th amendment provides 
 that the " accused shall have the right to be informed of the nature and cause of 
 the accusation." 
 
CHAP, v.] CBlMINAL PLEADING. G31 
 
 and the court to know what they are to try. The pleadings consist, on 
 the part of the State or the prosecution, of the indictment, presentment, 
 or information ; on the part of the defendant, his plea or demurrer. To 
 the plea there may be a replication' or demurrer, or, when proper by 
 the form of pleading, there may be a rejoinder ; but these pleadings sub- 
 sequent to the pleas, as well as the general plea of " not guilty," called 
 the general issue, are usually pleaded ore tenus, and entered upon the 
 indictment, and by the clerk carried into the journal and record. But 
 in important cases, involving doubtful or difBcult questions of law or 
 pleading, these subsequent pleadings are sometimes formally drawn up 
 and made part of the record. 
 
 I. INDICTMENT. 
 
 § 3. The first thing to be done in the course of the prosecution, after 
 the commitment, is to bring forward in due form the cause of complaint 
 against the accused ; and this is done by the indictment or presentment 
 of the grand jury,^ or by an information presented and filed by the 
 proper law officer of the court. No person is bound to answer a capital 
 or otherwise infamous crime, unless it be such an accusation presented 
 by the grand jury, except in petit larceny and inferior offenses, which 
 may be by an information. But in whatever way the complaint and 
 accusation is brought forward, their object, and the principles governing 
 their form and matter, are all the same, — to inform the accused of the 
 nature and cause of complaint against him, so that he may be ready to 
 answer it and prepare for a trial. The indictment or information must 
 therefore contain about the same matter, both in form and substance. 
 The object of them is to inform the accused and the court of the cause 
 and nature of the complaint, and therefore they should set forth the facts 
 that constitute the cause of complaint, and the connection of the ac- 
 cused with them, with such certainty as to identify the facts and party, 
 and with that particularity as to time, place, circumstances, and descrip- 
 tion as the subject-matter of the complaint is reasonably capable of, so 
 as to be identified from other transactions.' 
 
 §4. Upon this subject the supreme court of Ohio has said: "It is 
 a rule of criminal law, based upon sound principles, that every indict- 
 ment should contain a complete description of the offense charged. It 
 should set forth the facts constituting the crime, so that the accused 
 may have notice of what he is to meet, — of the act done which it be- 
 hooves him to controvert, — so that the court, applying the law to the 
 facts charged against him, may see that a crime has been committed. 
 
 ii. 
 
 ' Kockwell vs. State, 12 0, S. K. 427 
 ' As to the finding of the indictment or presentment by the grand jury, see 
 ante, ch. iv. ? 61-69. 
 3 Grammond vs. State, 10 O. E. 510. 
 
632 CRIMINAL LA W. [book it. 
 
 A contrary doctrine would deprive the accused of one of the means 
 humanely provided for the protection of innocence, — the right of having 
 the law of his case passed upon by judges learned and experienced in 
 matters of criminal jurisprudence.'" 
 
 § 5. The accused is not bound to answer until the accusation is thus 
 presented against him, and he has a right to have it embodied in a 
 methodical and legal form, so as to enable him to prepare his defense 
 and meet the alleged charge. These requirements are not only neces- 
 sary for the purpose of the answer and defense, but also, as in civil 
 cases, to guide the admission of evidence, for the evidence and the judg- 
 ment of the court upon the case must follow, and conform to the allega- 
 tions of the complaint as thus embodied. 
 
 § 6. In stating the charge, only reasonable strictness is required ; and 
 where that is clearly made, and the defendant fairly advised by the 
 charge what act of his is the subject of complaint, the principal object 
 of pleading is attained. The highest degree of certainty is not required, 
 — certainty to a common intent is sufiScient ; and no such rule is re- 
 quired as would tend from its strictness rather to shield the guilty than 
 to protect the innocent. 
 
 § 7. Formerly greater strictness was required than now prevails, and, 
 on the score of humanity, and sympathy for the accused, many prose- 
 cutions failed on account of want of some technical allegation or non- 
 essential but usual form not being observed in the indictment. This 
 became a subject of complaint, and has induced, both in England and 
 in this country, the passage of statutes to obviate such objections, 
 which, in some instances, have gone to the other extreme, and dispensed 
 with some allegations in indictments that would seem to be essential 
 to render the charge complete.^ 
 
 § 8. The code of cciminal procedure of Ohio has adopted the most 
 of such amendments, and provides that no indictment shall be deemed 
 invalid, nor shall the trial, judgment, or proceedings be stayed, arrested, 
 or in any manner affected, by the omission of the words, " with force 
 and arms," or any words of similar import, nor for the omission of a 
 variety of other technical words and phrases enumerated ; nor for the 
 omission to state the time or place ; or the price or value of any matter ; 
 or the amount of damages or injury, whenever such omission is not of 
 the essence of the offense ; nor on account that dates and numbers are 
 in figures instead of words; nor for an omission to allege that the 
 grand jury were impaneled, sworn, or charged; nor for any surplus- 
 
 1 See Lamberton vs. State, 11 O. R. 282; see also 8 O. S. R. 114. 
 
 °- See 4 Stephens's Com. 377 and 438 ; 1 Whart. Cr. Law (99), ? 218; 3 Barb. 
 K. Y. E. 473. Statutes to cure such defects were called statutes of jeofails. But 
 those which were hoped to cure defects in civil proceedings were decided not to 
 apply to criminal proceedings. 
 
CHAP, v.] CRIMINAL PLEADING. 633 
 
 age or repugnant allegation when there is sufficient matter alleged to 
 indicate the crime or person charged ; nor for want of the averment of 
 any matter not necessary to be proved ; nor for any other defect or 
 imperfection which does not tend to prejudice the substantial rights of 
 the defendant upon the merits. 
 
 § 9. The code further provides what shall be sufficient allegation in 
 various indictments, as in that for manslaughter, forgery, fraud, embez- 
 zlement, and the like offenses ; and also, in such cases, what shall be a 
 sufficient description of instruments, matters, or things, and averments 
 in relation to them. And whenever, on the trial, there shall appear to 
 be any variance between the indictment and the evidence offered, in 
 regard to the Christian or surname, or both names, or any other descrip- 
 tion whatever, of any person described in the indictment, such variance 
 shall not be deemed ground for an acquittal, unless the court shall find 
 that such variance is material to the merits of the case, or may be 
 prejudicial to the defendant. 
 
 § 10. The indictment, notwithstanding these statutes of jeofails, has 
 its known and usual form and parts, in a great manner essential to its 
 use and objects ; and it has not been altered in these respects by these 
 legislative enactments. The object of the indictment Is to inform the 
 defendant of the " cause and nature " of the accusation, and to enable 
 him to answer to it as the law requires, and to be prepared for his trial ; 
 and also, to inform the court of the complaint, so that it may be able 
 to guide and direct the trial and matter in controversy, and to pronounce 
 the proper judgment upon the result of the investigation, which must 
 be in accordance with the charge made. The form and parts of an 
 indictment are those which will most conveniently and appropriately 
 accomplish these objects, and which have been so settled by practice 
 and experience. The essential parts and matters to be contained in the 
 indictment are these: — 1. The caption and commencement. 2. The 
 name and condition of the defendant, so that he may be known and 
 identified. 3. The venue, time, and place. 4. The statement of the 
 offense. 5. The conclusion. 
 
 § 11. 1. The caption is technically considered no part of the indict- 
 ment, but everything must have a beginning, and one that is appropri- 
 ate to itself. Its object is to state the county or district over which 
 the court has jurisdiction ; the name and style of the court in which 
 the proceedings are had ; and it states that the grand jury, then and 
 
 there duly impaneled and sworn at the term of the said court, in 
 
 the year, etc., to inquire In and for the body of the said county, upon 
 their oaths, do present, and find that, etc. It is sometimes the practice 
 to insert in the caption the names of the judges holding the court and 
 the names of the persons constituting the grand jury, and a more full 
 history of their organization. But this is unnecessary, as that will all 
 
634 CRIMINAL LA W. [book it. 
 
 appear in the journal of the court, which will be always inserted in the 
 record and any transcript of the proceedings. 
 
 § 12. 2. The name of the person indicted should be inserted in the 
 indictment in as full and truthful a manner as it is linown. It should 
 be his full Christian name and surname, so as to identify the person, 
 and, therefore, it is very proper and common to distinguish the person 
 by such addition as that by which he is usually known. Where his 
 true name is unknown, he may be described as a person whose name is 
 unknown, but sometimes called and known by the name of A B, for 
 which any name may be assumed. The object is to identify the per- 
 son, so that he may be known and distinguished throughout the pro- 
 ceedings. The objection can only be taken by a plea in abatement, 
 and if the defendant answers to the complaint in any other manner 
 he is precluded after that to object to the name assumed for him. 
 There may be, sometimes, a question as to whether the name given be 
 the true name or not ; and this often arises from a difference of spelling 
 and pronunciation. A variance is often claimed on either account ; but 
 the rule is to disregard such variance where its spelling is according to 
 its known orthography, or where the letters will give the same sound 
 in its pronunciation. Where it is idem sonans, there is no variance or 
 discrepancy that is regarded.^ 
 
 § 13. 3. The prosecution of every offense must be in the county or 
 district where it was committed ; and the indictment must show it. 
 The allegation showing this, and the place where the facts were com- 
 mitted, is called the venue,^ and the statement of it is called laying the 
 venue, — it is said that the venue is laid in the particular county. This 
 is always done by stating the name of the county at the commence- 
 ment of the caption, and is usually denominated the county in the mar- 
 gin, and generally referred to in fixing the locality of the place where 
 the transaction is said to have taken place. Every material fact must 
 be stated, with the time and place ; and after the county is once suffi- 
 ciently stated, it may be afterward referred to for greater certainty, 
 and the same may be done as to time, as in this charge of assault and 
 battery. Thus : " That A B, of, etc., on the 1st day of October, in the 
 year of our Lord 1869, at Delaware, in the county aforesaid, did make 
 an assault upon C D, of, etc., and him said C did then and there beat, 
 strike, and wound." 
 
 • A Frenchman whose name was always pronounced Cuttior, always wrote his 
 name Ooquillard. Another person, who was a Hollander hy descent, and was 
 always known as Mr. Bush, always wrote his name Terhos,hush being a transla- 
 tion of terbos. In these cases, where the orthography is right, or the sound the 
 same, or the person as well known by the one name as the other, the objection of 
 a variance is not entertained, and a plea in abatement would not be sustained. 
 
 ' See ante, g 1 of this chapter. 
 
CHAP, v.] CRIMINAL PLEADING. 635 
 
 § 14. 4. The offense must be stated with that particularity as to facts 
 and circumstances that the matter is reasonably capable of being stated. 
 This statement of the charge is required, as has been stated, to enable 
 the defendant to know the " cause and nature" of the complaint against 
 him, so that he may be enabled to prepare for, and meet his defense. 
 This certainty is so required as to every material matter or thing con- 
 stituting an essential part of the complaint. Formerly, much greater 
 exactness was required than at present, and many technical words and 
 phrases were required which are now dispensed with by the statute ;' 
 which now declares as a rule, governing pleading, that no indictment 
 shall be deemed invalid for such omissions, nor for any other defect or 
 imperfection which does not tend to the prejudice of the substantial 
 rights of the defendant upon the merits. 
 
 § 15. The general form of an indictment is very much alike in all 
 cases ; it varies only in describing and setting forth the facts which 
 constitute each particular crime. Such facts must be set forth with 
 such reasonable certainty as to be known and distinguished, and so 
 that the court can, from its reading, know and understand judicially that 
 a crime has been committed. In case the facts are true ; and so as to be 
 able to pronounce that judgment which the law inflicts upon the com- 
 mission of the offense. It is not sufficient to allege that the defendant, 
 at a certain time and place, was guilty of murder, or forgery, or theft ; 
 but the facts necessary to constitute the particular offense should be 
 specifically stated. Where a certain intent or knowledge enters into 
 and constitutes a part of the crime, then such intent or knowledge must 
 be alleged in order to constitute the offense. 
 
 § 16. In stating any one of the various offenses subject to a criminal 
 prosecution, the words used should agree and comport with the known 
 description of the offense. Each offense, in a measure, requires different 
 language to describe it, and that should agree with its peculiar circum- 
 stances and its established definition, so that the accused and the court 
 may readily understand what the charge is, and its circumstances, and 
 thereby avoid unnecessary motions and caviling about the meaning and 
 sufficiency of the charge. 
 
 § 17. Thus, in an indictment for murder, it is necessary to set forth 
 clearly the whole facts and essential circumstances constituting the case; 
 the mode and manner in which the injury which caused the death was 
 inflicted ; if there was a wound, state the kind and size of the wound or 
 injury, that it may appear judicially to the court that it was sufficient 
 to produce death ; and it is indispensable to state that death ensued in 
 consequence of the injury so inflicted. So, in a case of perjury, it is 
 necessary to set out the oath in their words, and as an oath taken in 
 
 1 See the Criminal Code, 1 90. 
 
636 CRIMINAL LAW. [book iv. 
 
 some judicial proceeding, and before some person or court authorized to 
 administer the oath ; and also state wherein" it was false, and that the 
 accused therein did willfully and corruptly depose and declare such 
 matter to be the fact, knowing the same to be false. Or in a case for 
 obtaining money or property fraudulently or under false pretense, some 
 pertinent description of the property or money, its amount or value, 
 should be given, and that the accused obtained the possession of it from 
 the owner of it by means of fraud and false pretenses, and must state 
 in what acts or words that fraud and false pretense consisted ; the mere 
 allegation of fraud or false pretense will not do, but the acts and words 
 by which it was accomplished must be stated. 
 
 § 18. The description of the offense must be made in the words and 
 language by which it is known or enacted in the statute. In a case for 
 a criminal homicide, or murder, it should staite that the accused, by the 
 means stated, killed and murdered the deceased ; not killed and slew. 
 So, in case for larceny, it should not be merely an allegation of stealing, 
 or larceny, but that he did steal, take, and carry away ; or in burglary, 
 that he did burglariously break and enter ; or in a case for rape, that 
 he feloniously ravished and carnally knew one M J against her will. 
 Every such offense charged should be brought within the words used 
 in the statute creating the offense. 
 
 § 19. It may be proper also to notice that in most instances it is 
 right, if not necessary, in describing goods, or property, or money, to 
 give some description of it, and its quantity and value. All this is 
 required to give a certainty to the offense charged, for the reasons al- 
 ready given, and that it might appear certain on the face of the indict- 
 ment itself. But in most of these instances given, it is not necessary 
 to prove them precisely as alleged, where it is a patter of description ; 
 but where it is a descriptiou or a copy of a writing or of a particular 
 thing, it is otherwise, for then there may be a substantial variance or 
 discrepancy by which one thing might be imposed instead of another. 
 Thus, the place where is not a fatal variance so it be within the county 
 or jurisdiction. Nor is the precise time required, so that the variance 
 does not lead to deceive, by understanding that the offense charged was 
 a different offense. The same may be said as to quantity, number, or 
 value. There is the further exception as to certainty iu case the sub- 
 ject or matter described consists of a great variety or number, as a 
 store of goods or a long account, or where the thing itself consists, in 
 its nature and identity, in its being common, repeated or frequent, as in 
 the keeping a common gambling-house, or a tavern without license, or 
 being a barrator, and the like instances. 
 
 § 20. 5. The concluaion of the indictment in Ohio is usually, that 
 the offense charged was " contrary to the form of the statute in such 
 case made and provided, and against the peace and dignity of the State 
 
CHAP, v.] CRIMINAL PLEADING. 637 
 
 of Ohio." It is very possible that under our statutes of jeofails in 
 criminal cases, this conclusion is not a very important matter ; but 
 formerly indictments were quashed on account of the want of such 
 conclusion. When the offense is dependent upon a statutory enactment, 
 it has always been considered that the words " contrary to the form of 
 the statute," contra formam statuti, etc., were words essential to the 
 validity ; for where there were prosecutions at common law, this con- 
 clusion as to the statute was required to inform the accused whether 
 the prosecution was dependent upon the common law or the statute. 
 
 II. GENERAL PRINCIPLES APPLICABLE TO CRIMINAL 
 PLEADING. 
 
 § 21. Pleading in criminal cases, like that in civil cases, should be 
 plain, simple, certain, and truthful allegations of facts. It should not be 
 a statement of those circumstances that constitute the evidence of the 
 essential facts, but those facts themselves. These facts should be stated 
 in a plain and simple manner, — excluding all surplusage and redundant 
 or irrelevant matter ; and such statements should consist only of the 
 allegation of facts stated with truth and certainty. The particular 
 points requiring further consideration under this head are — 1, dupli- 
 city ; 2, repugnancy ; 3, surplusage and irrelevancy ; 4, statement of 
 written instruments, and words and clerical errors. . 
 
 § 22. 1. Duplicity, in law, is the pleading two or more distinct mat- 
 ters in the same count of the indictment, or in the same plea. The law 
 opposes such duplicity, in the first place as unnecessary, and in the 
 next as unfair toward the opposite party ; for, if there be really two 
 grounds of prosecution or the subject-matter of a plea, they may and 
 should be stated separately in distinct counts or pleas, and not em- 
 barrass the opposite party with two subjects that are dissimilar and 
 distracting in the same pleading. Generally speaking, a higher offense 
 may include a minor, as one being necessarily a part of the other, — as 
 murder may include manslaughter, or as a battery includes an assault. 
 But this is not the kind of duplicity that is objectionable, but those that 
 are distinct and unconnected in their own nature. 
 
 § 23. Duplicity may be objected to by demurrer, or the court will, in 
 general, upon application by motion, quash the indictment ; but, except 
 in cases where there is a duplicity of two or more incongruous charges, 
 and the jury have rendered a general verdict, so that the court will be 
 at a loss what judgment to render, a motion in arrest of judgment 
 would be of a doubtful success ; for the objection ought to be taken in 
 an earlier stage of the proceedings. When the jury finds a separate 
 verdict on each cause of the duplicity, there would appear to be no 
 special ground to arrest the judgment; for it may be considered that 
 
638 CRIMINAL LA W. [book iv. 
 
 the defendant waived the objection, and there is nothing in the way of 
 rendering the proper judgment. 
 
 § 24. 2. Repugnancy is where there is a material averment or allega- 
 tion in an indictment or pleading contrary to or inconsistent with an- 
 other ; in such a case, the whole is bad. Thus, where it was alleged 
 that the defendant had forged a writing whereby one person is bound 
 to another, there is a repugnancy ; for it is impossible for one to be 
 bound to another by a forgery. So, where it was alleged that the de- 
 fendant had disseised the plaintiff, where, in the same pleading, it 
 appeared to the court that the plaintiff had never been seised. Where 
 a relative pronoun referred with equal uncertainty to two antecedents, 
 it amounted to a fatal repugnancy. This objection may be taken upon 
 a motion to quash on demurrer, or in arrest of judgment. 
 
 § 25. 3. Surplusage is something in the pleading that is not requi- 
 site, or more than is required, or irrelevant ; but irrelevancy is that 
 which is not pertinent, or not connected with the matter in question. 
 If the charge or allegation would remain good or sufficient where such 
 objectionable matter is stricken out, it is disregarded as mere sur- 
 plusage, and does not vitiate that which is good without it. The maxim 
 is utile par inutile non vitiature. Where any portion of an indictment 
 is found true, which in itself amounts to a crime, it is sufficient, though 
 far short of all that was alleged ; as in case of murder, the defendant 
 might be convicted of manslaughter ; so, in case of an assault and 
 battery, he may be convicted of the assault only ; or, of burglary and 
 larceny, he may be convicted of larceny only; for in all those cases 
 the allegations contained in the larger offense contain also that of the 
 minor, and therefore such minor offense is not vitiated or prejudiced by 
 the additional matter which constituted the charge of the greater 
 offense. 
 
 § 26. 4. Written instruments, and words spoken, when they become 
 a part of the offense, or the gist of it, must be set forth in the indict- 
 ment, and so in any other pleading where they become an essential 
 part of it. Where there is a written instrument constituting an essen- 
 tial part of the complaint, and the instrument is in the possession or 
 control of the prosecution, — as in cases of forgery, passing counterfeit 
 money, threatening letters, libel, and the like instances, — the words and 
 figures of the instrument must be set forth. This is usually preceded 
 by the words, "to the tenor following," or "as follows," or "in these 
 words," or " in the words and figures following, to wit." If the indict- 
 ment fails to set forth such instrument, it is insufficient and would be 
 quashed ; and if, in setting forth a copy, a material word or figure is 
 left out, it is a fatal error, for the instrument would then be a different 
 one from that which is set forth. To state the substance or effect of 
 the instrument would be insufficient, unless the court could aid it under 
 
CHAP, v.] CRIMINAL PLEADING. 639 
 
 our statutes of jeofails, or unless the instrument is in the possession of 
 the defendant, and that is alleged as an excuse for not reciting its tenor. 
 
 § 27. "When words are alleged as an essential part of the charge or 
 pleading as having been spoken, they should be set forth in the like 
 manner ; but it will be sufBcient to prove the substance of them as 
 spoken. The words themselves must be laid, but only the substance 
 of them need be proved. But then the meaning must evidently be the 
 same, without the help of any implication or anything extrinsic. When 
 any matter is pleaded or alleged in an indictment as a matter of record, 
 or to be proved by it, care must be taken that it correspond exactly 
 with the record, for the slightest variance in substance will be fatal. 
 
 § 28. Errors in stating a written instrument or words spoken may 
 or may not be fatal. Substantial variances we have seen must be so ; 
 but where the sense and legal effect of it is still preserved, it is not 
 regarded, nor would errors of grammar or spelling, where the sound is 
 preserved, or dropping out a word which evidently is a clerical error, 
 not substantially changing the meaning, will not and ought not work a 
 fatal objection. The same rules apply to the language used in the 
 making any particular allegations required by law. Thus, in a charge 
 of selling without license, the allegation was that the defendant sell 
 and dispose of, instead of did sell, etc.; so where the offense was charged 
 to have been " on first of March," instead of " on the first day of March ;" 
 so where the word understood was written " undertood ;" and the 
 words " false mark," were written " false make ;" or " on " for " of," or 
 " an " for " the," have all been disregarded, on the ground of their being 
 mere clerical errors, creating no substantial difference.' 
 
 III. JOINDER OF SEVERAL DEFENDANTS AND VARIOUS COUNTS 
 IN THE SAME INDICTMENT. 
 
 § 29. 1. When more than one have joined in the commission of an 
 offense, all, or any number of them, may be jointly indicted, or each of 
 them may be indicted separately. The distinction between principals 
 in the first and second degree, so far as the indictment is concerned, is 
 a distinction without a difference, and, therefore, they may be jointly 
 indicted as having committed the act. But if the punishment of those 
 in the second degree is dififerent from the principal, as created by the 
 statute, then such accomplice should be separately charged as aider and 
 abettor. Accessories must be separately charged either in the same 
 count or in a separate count of the indictment ; or they may, as in 
 other cases, be separately indicted. 
 
 § 30. Though the rule is that where two of more are jointly indicted, 
 
 "See 1 Whart. Cr. Law (146) (146), ? 406-9, and tho authorities there cited. 
 
640 CRIMINAL LAW. [book it. 
 
 any may be convicted, while the rest are acquitted, for the charge is 
 generally considered joint and several ; yet to this there are exceptions, 
 as in cases where there is a necessity that there should be two or more 
 in the commission of the offense ; as where a man and woman are 
 jointly indicted for fornication, and one is acquitted and one convicted, no 
 judgment can be rendered upon the verdict, but the convicted person 
 must be also discharged, for a material and essential part of the ac- 
 cusation has been found untrue. So, where three or more persons are 
 jointly indicted for a riot (in which it is necessary that there were 
 three engaged), and all but one or two are acquitted, judgment must be 
 arrested.' 
 
 § 31. 2. Several counts may be joined in the same indictment against 
 the same defendants, provided that the offense stated in each be of the 
 same character and differing only in degree ; as where the offense 
 stated in one is the forging an instrument, and in another, the uttering 
 and publishing it as true, knowing it to be false. These several counts 
 of the indictment are always stated as though they were entirely for 
 a different offense ; but more often they are really the same offense 
 stated in a different manner to meet the different aspect that the evidence 
 may assume, or other difficulties in the cases. The defendant may be 
 convicted on one or more of the counts, and acquitted on the rest ; or 
 where there are several defendants, some may be acquitted on some and 
 convicted on others ; or some may be convicted on some counts and 
 others on other counts. 
 
 § 32. When there is a misjoinder of either counts and offenses, or 
 of defendants, it is a subject of demurrer, or a motion to quash ; but in 
 some instances after trial and verdict, it may be presumed that the 
 defendant, by not taking his objection sooner, had waived the objection. 
 But where such joinder is an inconsistent matter, objectionable to a 
 fair and consistent trial, the objection may be taken in arrest of judgment 
 or upon a writ of error. 
 
 IV. LIMITATION OP PKOSECUTION. 
 
 § 33. There are statutes limiting the time of commencing the prose- 
 cution in criminal cases as well as in civil actions. In the higher 
 crimes, such as murder and treason, there is usually no limitation ; but 
 .generally there is some limitation to all the minor crimes and mis- 
 demeanors dependent upon the statutes of each State, and often 
 upon each crime, as limited by the particular statute ; this time varies 
 much, from one to six years, and sometimes even longer. In the minor 
 offenses, the prosecution is limited to a certain number of days or weeks 
 
 1 2 Wharton's Or. Law (726), ? 2493 and n. g, 
 
CHAP, v.] CRIMINAL PLEADING. 641 
 
 or months. Our criminal code provides that if any person indicted 
 and committed, shall not be brought to trial before the end of the 
 second term of the court after the indictment found, he shall be entitled 
 to be discharged, unless the delay shall happen on the application of 
 the prisoner. If the accused has given bail, and shall not be brought 
 to trial before the end of the third term of the court in which the cause 
 is pending after indictment is found, unless the delay is caused by his 
 application or the want of time to try the cause. But in either case, 
 upon application to be so discharged, if the court shall be satisfied 
 there is material evidence on the part of the State which cannot then 
 be had, that reasonable exertions have been made to procure it, and a 
 just belief that it can be had at the succeeding term, the cause may be 
 continued, and the accused remanded, or admitted to bail, as the case 
 may require.^ Some similar provision exists in most of the States, and 
 the Constitution of the IJnited States^ secures a speedy and public trial 
 by an impartial jury. This is no more than the just principles of the 
 common law, though in ancient times grossly violated. 
 
 § 34. Our code provides that no one shall be, without his assent, 
 called on to answer to any indictment until one day shall have elapsed 
 after the copy of the indictment has been served upon him. And, when 
 he is brought before the court to plead, he shall have reasonable time 
 to examine the indictment and prepare exceptions to it ; which may be, 
 first, a motion to quash; second, a plea in abatement; third, a demurrer. 
 After these are disposed of, so that the accused is required further to 
 answer, or so that the demurrer is overruled, he may plead, — a plea in 
 bar, or " not guilty ;" but the accused shall be taken to have waived all 
 defects which may be excepted to by a motion to quash, or a plea in 
 abatement, by his demurrer, or pleading in bar, or the general issue. 
 
 V. MOTION TO QUASH, PLEA IN ABATEMENT, AND DEMUEEEK. 
 
 § 35. Objections to the indictment are, therefore, required by the code 
 to be taken in the following order : — first, a motion to quash ; second, 
 a plea in abatement; third, a demurrer. 
 
 1. A motion to quash may be made in all cases, when there is a defect 
 apparent upon the face of the record, including defects in the form of 
 the indictment, or in the manner in which the offense is charged. 
 Objections on account of form should be made in this manner. 
 
 § 36. 2. A plea in abatement may be made when there is a defect in 
 the proceedings, which is shown by facts extrinsic of the record. This 
 
 > Code 1 161 ; 1 Wharton's Or. Law (159), § 451 and n. y. 
 2 Const. 17. S. 6th amend. 
 
 41 
 
642 CRIMINAL LA W. [book iv. 
 
 plea is so called because it is only a temporary answer, — an abatement 
 of the prosecution for the present, and not a final answer or bar to it. 
 It raises a temporary objection to the prosecution, or causes it to take 
 another direction until such difficulty is removed, and does not answer 
 or deny the cause of complaint. Such is a plea that the defendant is 
 prosecuted by the wrong name, — a misnomer ; or a plea on the ground 
 that it was some other tribunal, and not that court, that had jurisdic- 
 tion of the complaint, — this is a plea in abatement to the jurisdiction. 
 But such plea is not common, for an objection to the jurisdiction may 
 always be taken by a motion to quash, or in arrest of judgment, or by a 
 writ of error.' It is apprehended that this is the case, notwithstanding 
 what the code directs as to the order of objection or pleas, on the ac- 
 count of the fundamental character of objection to the jurisdiction. 
 
 § 37. The term plea in abatement is usually applied only to pleas 
 of misnomer and the like objections, which do not deny the jurisdiction 
 or the offense, but only delay the matter by compelling some amend- 
 ment or correction in the same court, and frequently are denominated 
 dilatory pleas, and are generally required to be supported, as to the 
 facts they allege, by an affidavit, and the plea should usually not only 
 state the objection and facts upon which it is founded, but also disclose 
 ■where and how the objection should be obviated. Thus, a plea of 
 misnomer, on account that either the Christian name, or the surname, 
 or the addition to the name is wrong or mistaken, must disclose what 
 the true name and addition are, so as to enable the prosecution to 
 proceed anew with the true name and addition. 
 
 § 38. These principles as to pleas in abatement, founded on the 
 criminal code, are very much in accordance with those of the common 
 law. But the code gives a different direction to the result where the 
 defendant is successful on such plea. For, at common law, where the 
 defendant was successful upon a plea in abatement, the prosecution was 
 compelled to begin again by a new indictment. But under the code, 
 the true name set forth in the plea " shall be entered on the minutes of 
 the court," and, after such entry, the trial, and all other proceedings on 
 the indictment, shall be had against the accused by that name, referring 
 also to the name by which he was indicted, in the same manner as 
 though he was indicted by his true name. This simplifies and expe- 
 dites such proceedings. Therefore, when such plea is put in, the prose- 
 cution will not now, generally, take issue and go to trial upon it, but 
 will admit the plea, and have the proper entry made, and proceed in the 
 case with the amended name as the code directs. 
 
 §39. 3. Thedemwrrer-, in criminal cases, is very much like that in civil 
 cases, and intended to answer the like purpose ; and the code provides, 
 
 1 Sco Wharton's Cr. Law (189), ? 554; 4 Stephens's Com. 401. 
 
CHAP, v.] CRIMINAL PLEADING. 643 
 
 the accused may demur when the facts stated in the indictment do not 
 constitute an offense punishable by the laws of this State, or when the 
 intent is not alleged, where proof of it is necessary to make out the offense 
 charged. On the part of the State, a demurrer may be had to any plea 
 in abatement if it is not sufficient in substance ; or there may bo a reply 
 setting forth any facts, which may show there is no defect in the record 
 as charged in the plea.' When the defendant succeeds on demurrer, or 
 on a motion to quash, or upon a plea in abatement, he is not discharged 
 as a matter of course, as at common law, and the prosecution compelled 
 to be commenced anew ; but the code directs that the accused may be 
 committed or held to bail, as the court may require, for his appearance 
 to answer a new prosecution, in case the objection decided is not fatal 
 to such new prosecution. 
 
 § 40. These provisions of the code do not very materially alter the 
 practice from what it was at common law. The great principles of 
 criminal procedure remain the same, and when the one is learned and 
 understood, the student is not far from understanding the other, — the 
 difference is principally in the minutiae. 
 
 VI. PLEAS IN BAE AND GENERAL ISSUE. 
 
 § 41. Pleas in bar are such answers to the charge against the accused 
 as put a final stop to the prosecution, either by alleging a single fact 
 which is inconsistent with, and an answer to, the accusation, or by 
 alleging generally that he is "not guilty." The first instance is what 
 is called a special plea in bar; and the second, the general issue. 
 
 § 42. 1. Special pleas in bar are not of so frequent occurrence iu 
 criminal proceedings as in civil, for the reason that a motion to quash, 
 upon defects apparent on the face of the indictment, or upon admitted 
 facts, or a trial upon the general issue of not guilty, fully answers all 
 the purposes of defense that can be obtained by a special plea.^ But 
 it must be remembered that our code now declares that the accused 
 shall be taken to have waived all defects which may be excepted to by 
 a motion to quash or a plea in abatement, by demurring to the indict- 
 ment, or pleading in bar, or the general issue. Yet he is not precluded 
 from pleading the general issue after any motion, demurrer, or plea has 
 been decided against him.' 
 
 § 43. It is further provided that the accused, upon being arraigned, 
 may then offer a plea in bar to the indictment that he has before had 
 judgment of acquittal, or been convicted, or has been pardoned for the 
 same offense ; and to this plea the prosecuting attorney may reply that 
 there is no record of such acquittal or conviction, or that there has been 
 
 1 Code, 2 109. ' 4 Stephens's Com. 408. ' See code, J 113-118. 
 
644 CRIMINAL LAW. [book ivj 
 
 no pardon ; and on the trial of snch issue to a jury the accused must 
 produce the record of such conviction or acquittal, or the pardon, and 
 prove that he is the same person charged in the record, or mentioned in 
 the pardon, and shall be permitted to adduce such other evidence as 
 may be necessary to establish the identity of the offense. But no plea 
 in bar or abatement can be received by the court unless it be in 
 writing, signed by the accused, and sworn to. Such special pleas in 
 bar may be considered in two classes : — 1, plea of a former acquittal or 
 conviction ; and 2, plea of pardon obtained. 
 
 § 44. (1) Plea of a former acquittal and of a former conviction, tech- 
 nically denominated plea of autrefois acquit or plea of autrefois con- 
 vict, are very much alike in the principles upon which they rest, and 
 the evidence which must be introduced in their support, or in the de- 
 fense of them. They are both founded upon the same great constitu- 
 tional provision, that no man shall be twice put in jeopardy for the 
 same offense. Hence it follows, as a consequence, that when a person 
 has been once fairly tried and acquitted, or convicted, in a prosecution 
 before a court having a competent jurisdiction of the offense, he cannot 
 be put to a trial a second time for the same offense, and therefore may 
 plead such acquittal or conviction in bar of a second prosecution of the 
 same offense. 
 
 § 45. In order to maintain this plea, upon issue being taken upon it, 
 the defendant must prove the allegations by the production of the 
 record, or a duly authenticated transcript of it. It must also appear to 
 be a case duly prosecuted to a final determination of the case, — to convic- 
 tion or acquittal. It must not be a case dismissed on account of some 
 defect in the prosecution, nor a fraudulent prosecution got up by the 
 defendant, at his own instance and conviction, upon his confession, in 
 order to suppress a fair trial, and to secure a record against such second 
 trial. 
 
 § 46. If the defendant in such former prosecution was discharged on 
 account of some error in the indictment or proceeding, or discharged 
 upon a nolle prosequi, or where the judgment has been arrested or re- 
 versed upon error, such partial prosecution will not sustain his plea, 
 for, in such cases, he has not been placed in jeopardy by such erroneous 
 or ineffectual prosecutions. He must not only sustain his plea by the 
 production of such unobjectionable record, but prove his one identically 
 and that of the two offenses as charged, to be identically the same. 
 The dates and description of the two offenses may differ, but they may 
 be proved to be identical by extrinsic evidence. And though the two 
 cases differ in the name of the offense, or the grade of the offense, yet, if 
 the former charge was included in this, or this in that, — as in case the 
 ■former charge was murder and this manslaughter, — it maybe a sufiB- 
 cient bar, if they were identical, for on the indictment for murder, if 
 
CHAP, v.] CRIMINAL PLEADING. 645 
 
 guilty of homicide, he might be convicted of manslaughter ;' so, if tried 
 upon a charge of manslaughter, it would be a bar to a subsequent prose- 
 cution for murder, for the same testimony might support either ; and 
 at all times it is a question which of the two offenses the case amounts 
 to, for the two only differ in degree, but the facts and consequences are 
 the same. But if a person is prosecuted as an accessory, and is ac- 
 quitted, it will be no bar to a prosecution as principal, for the offenses 
 are not the same. 
 
 § 47. (2) A pardon may be specially pleaded in bar of the prosecu- 
 tion, not only in bar of the indictment and trial, but also in bar of the 
 conviction and execution ; this in some measure dependent upon the time 
 when such pardon was obtained, for a pardon may be obtained and be 
 effectual at any time before the execution is completed ; as in the case 
 of a plea of former acquittal, the defendant must produce record evi- 
 dence of the pardon, and also produce evidence of his identity ; and 
 there is striking similarity in the proceedings in these several pleas. 
 
 § 48. Formerly, the court permitted these pleas to be made and heard 
 in a very informal manner. The plea was frequently made viva voce, 
 unless the case was a very important one. But now, as has been seen, 
 the code requires that these special pleas should be made in writing, 
 and signed and sworn to by the party. But the defendant is not con- 
 cluded by a plea in bar being decided against him, as he would be in civil 
 cases ; for though the special plea in bar be found against him upon 
 issue tried by a jury, or judged against him in point of law by the court, 
 still he was not concluded or convicted thereon at common law, but the 
 judgment against him was respondeat ouster, and was permitted to 
 plead over to the accusation the general issue, — not guilty ; and this is 
 now, as we have seen, fully secured by the terms of the code. The law 
 does not conclude a defendant in his defense, and subject him to the 
 result of his offense and his plea, until he has had a full and fair hear- 
 ing and trial before a jury upon the facts of his case, upon his plea of 
 the general issue. 
 
 § 49. 2. The general issue is the plea of not guilty, which is the 
 proper plea whenever the accused intends to deny or justify the charge 
 made against him, for which a special plea to set forth facts for either of 
 those purposes would be improper. This general issue he is permitted to 
 set up as a defense to the charge, when all other modes of defense have 
 failed him. The plea of " not guilty" is made viva voce, in answer to 
 the question put to him in court, — whether he was guilty or not guilty 
 of the charge made against him ; and which plea is so entered upon 
 the indictment. This plea makes it incumbent on the prosecutor to 
 
 ' i Stephens's Com. 404 ; 2 Hale's Pleas of the Crown, 246 ; 4 Blackst. Com. 
 335; 3 Bar. & Ores. E. 502. 
 
646 CBIMINAL LA W. [book iv. 
 
 prove every fact and circumstance constituting the offense alleged in 
 the indictment; and then the accused may give in evidence, under the 
 plea, not only everything which negatives the allegation in the indict- 
 ment, but also any matter of justification or excuse. 
 
 § 50. Special pleas are more restricted, and the general issue more 
 liberal in criminal than in civil cases ; but in the former, as in the latter, 
 the defendant is not permitted to plea'd specially what is or will amount 
 to the general issue. Thus, on an indictment for murder, a person will 
 not be permitted to plead that the fact happened while he was defending 
 himself against a robbery or a burglar ; but he must plead the general 
 issue, — not guilty, — and give this special matter in evidence. The pro- 
 priety of these rules is quite obvious ; for such plea very plainly amounts 
 to the general issue, for if true, the accused is clearly not guilty. The 
 effect of this is, that under the general issue the prosecutor is compelled 
 to prove every material fact alleged in the accusation ; and it entitles 
 the accused to avail himself of every defense as completely as though 
 he had pleaded them in a special form, and renders it the most conve- 
 nient and beneficial plea for the accused. 
 
 §51. These pleadings put the case at issue; that is, they have brought 
 out the points in controversy by an affirmative on one side and a nega- 
 tive on the other, to be decided by the court and jury, — all questions of 
 law to be controlled and decided by the court, and all questions of fact 
 by the jury. All questions raised upon a motion to quash, and upon 
 demurrer, are necessarily questions of law, and must be decided by the 
 court, but upon all pleas, general or special, must necessarily involve 
 questions of fact as well as law. The case must go to a jury to decide 
 questions of fact ; but all questions of law involved in the investigation 
 of the facts are controlled and decided by the court, and the court 
 instruct the jury as to the law governing the case while it is in the 
 course of investigation before the jury. Thus, upon a plea of autrefois 
 acquit, when the record of the former acquittal is presented, the court 
 decide upon its validity and sufiiciency, and the jury are accordingly 
 bound to receive it in accordance with the opinion of the court ; but, as 
 to the questions of identity of the person and offense, these are ques- 
 tions of fact, which, under the instructions of the court, are to be de- 
 cided by the jury. 
 
CHAP. VI.] CRIMINAL EVIDENCE. 647 
 
 CHAPTER YI. 
 
 CRIMINAL EVIDENCE. 
 
 § 1. The rules of evidence in criminal cases are founded upon the 
 same principles as those in civil actions. The object of each is the 
 same ; it is to demonstrate and make evident the point in controversy. 
 In doing this, parties resort to the same means of proof which expe- 
 rience and reason teach to be the means of obtaining truth in the ordi- 
 nary affairs of life. Human reason and philosophy, guided by experience, 
 are ever appealed to as the means of establishing the truth of unknown 
 facts then in controversy, and the rules of evidence are no more than 
 aids in the process, by admitting and directing that which is consistent 
 and demonstrative, of the truth of the matter in question, and excluding 
 that which is not pertinent. In pursuit of the subject, it shall be con- 
 sidered : — I. The general principles of criminal evidence; II. The instru- 
 ments by which such evidence is brought into court ; and III. The rules 
 which determine the necessary evidence, its legal effect, and its applica- 
 tion to the facts and law of the case ; or, in other words, to consider 
 evidence in reference to its principles, its instruments, and its proof. 
 
 I. GENEKAL PKINCIPLES OF CEIMINAL EVIDENCE. 
 
 § 2. The rules of evidence in criminal cases do not materially differ 
 from those established in civil proceedings. Evidence itself must be 
 founded upon reason and the natare of things ; and, therefore, its general 
 principles and rules must be alike to whatever subject applied, and can 
 only differ in its minutiae, as it is applied to different objects. Truth 
 is always the same, and the means and principles used in its demonstra- 
 tion are always the same when the point in issue or the. fact to be 
 proved is the same, whether it be in a civil or criminal case. But still 
 the evidence which would establish a claim for a debt against a person 
 must necessarily differ from that which would establish a charge of nn 
 assault and battery, in particulars at least, though the general princi- 
 ples, the means, and effect of the evidence be the same ; only differing 
 in a manner consistent with the difference in the subject-matter to be 
 proved. There are considerations operating in a criminal prosecu- 
 tion which do not ordinarily affect a civil case ; for, in the latter, it is 
 generally only a pecuniary matter, but, in the former, it is frequently 
 where life, liberty, or reputation is in peril ; and then, for the protection 
 
CRIMINAL LAW. [book it. 
 
 of the innocent and the feeble, the rules of evidence are more rigid, arid 
 inclined to favor and protect the accused until his guilt is proved be- 
 yond a reasonable doubt, so that he shall not suflfer more, though he may 
 suffer less, than he really deserves. 
 
 § 3. The rules of credibility are the same in both systems of admin- 
 istering justice. In neither can anything be given in evidence which 
 does not tend directly to prove or disprove the matter put in issue. 
 Frequently, in ordinary afiFairs, a person might be satisfied of an accusa- 
 tion from the former character of the accused, or from the fact that 
 similar charges had before been made against him. But our law of 
 criminal evidence, with the humane view of saving the innocent from 
 unjust prosecution and unfounded conviction, does not admit evidence 
 of the bad character of the accused, or of a general disposition on his 
 part to commit the like offense, as evidence of guilt in the particular 
 case for which he stands charged ; for such evidence would only tend 
 to convict him of having a bad character, when, perhaps, innocent of 
 the offense for which he is tried. The law, therefore, requires that the 
 charge should be proved and made out with reference to the particular 
 charge then made against him, and not convict him in one case by the 
 proof of another. 
 
 § 4. The general principles of evidence, and the grounds upon which 
 it is based, being the same in both systems of procedure, much of what 
 might be here said upon the subject would have to be the same as that 
 already considered; reference therefore is only had to the general prin- 
 ciples of evidence in civil cases. ^ What shall here be attempted will 
 be to analyze those rules and principles of evidence wherein it differs in 
 exceptions and distinctions in criminal law from those admitted in civil 
 cases. 
 
 § 5. One of the first rules of criminal evidence is that which requires 
 the evidence to be confined to the points in issue; and therefore all mat- 
 ters of evidence that are foreign and not pertinent to the question in 
 issue must be excluded. This necessarily follows from that other 
 rule : that the accused cannot be called upon to answer, except where 
 the cause and nature of the complaint have been plainly set forth in the 
 indictment. Where the general issue — not guilty — is pleaded, every 
 material and essential allegation constituting the charge must be proved 
 as the points in issue. If there be a special plea, then the evidence 
 must be confined to the special issue raised by it. 
 
 § 6. Correlative to this rule is the maxim, — "A transaction between 
 two parties ought not to operate to the disadvantage of a third per- 
 son," and the objection that the matter is res inter alios acta. Upon 
 this rule and maxim is excluded, as inadmissible, most of what is offered 
 
 'See ante, B. iii. oh. vi.| on criminal evidence, see Eoscoe and Wharton. 
 
CHAP. VI.] CRIMINAL EVIDENCE. 649 
 
 as evidence that is not applicable. Frequently, very plausible matters 
 offered are, upon reflection, found to be justly excluded, under the ob- 
 jection that the evidence proposed is eithev foreign to the issue, or was 
 res inter alios acta. Thus, on an indictment for larceny, if it should be 
 proposed to prove, on the part of the State, that the accused had re- 
 cently stolen other articles at a different time and place from those 
 charged in the indictment, for the purpose of raising a stronger infer- 
 ence that he was guilty in the case charged. This proposed evidence 
 would be excluded by the court as foreign to the issue then to be tried. 
 It was not the case that the defendant was called upon to answer, and 
 he is not to be supposed to be ready to meet such new charge. From 
 thence is deduced as a principle of our law, that it is not allowed to prove 
 a person's general character, or that he has a disposition to commit the 
 like offenses, in order to produce his conviction in the case on trial. 
 The evidence, therefore, must be confined to facts and circumstances 
 which go directly to prove the identical offense charged, and not those 
 belonging to other cases to which the accused was not then called upon 
 to answer. 
 
 § 1. The ground of receiving any evidence is the connection existing 
 between the evidence and the facts in issue. When the facts offered to 
 be proved are the acts or declarations of others, and strangers to the 
 accused, there is no such connection, and upon every principle of jus- 
 tice ought to be excluded as res inter alios acta, until it be shown that 
 the accused is connected with the transaction, or privy to the proposed 
 evidence, by his ow^n acts or his agency. ,It is upon this principle that 
 the declarations of others or hearsay are excluded. The exclusion of the 
 acts of others is founded upon reasons so obvious as to require no fur- 
 ther illustration ; but the declarations or sayings of others, as hearsay, 
 are equally so, when it is considered that such declaration or assertion 
 may be made upon no evidence at all, — a mere fiction ; but may have 
 been made for sinister purposes to create a false impression, or to put 
 others on a false scent. Besides, the law does not commit any one to 
 the evidence or declarations of others, except it be given under the 
 sanction of an oath, and that the party has had a full opportunity to 
 investigate it upon a cross-examination.' 
 
 § 8. But evidence of the acts, doings, sayings, and confessions of the 
 party himself, if connected with the matter in question, are free from 
 these objections ; for a party is bound by what he himself does, or directs 
 to be done, or does by another by his authority as bis agent, — quifacit 
 per alium facit per se, — will be binding upon him upon the clearest 
 principles of justice. Still, the confession of a party, by our law and by 
 
 •See Stark. Ev. 84, etc.; Broom's Max. 643 [857], etc.; Duchess of Kingston's 
 casein 2 Smith's L. Cases, 612, etc. 
 
650 CRIMINAL LAW. [book it. 
 
 the common law, is received with great caution and prudence, for no 
 one is bound to convict himself, and is not permitted to do so except 
 under ciHcumstances of entire freedom and self-control, uninfluenced by 
 promises or inducements held out by others. Confessions extorted are 
 rejected with vigilant rigor. 
 
 § 9. An apparent exception to these rules exists in the case of utter- 
 ing forged notes, where it is permitted to prove the uttering of other 
 false and forged bank notes of the same kind ; not for the purpose of 
 proving the uttering in the case on trial, but, in ease that is proved, 
 then to prove the guilty knowledge of the character of the notes, or his 
 intention, — technically called the scienter, — by showing his familiarity 
 and acquaintance with notes of the kind. This exception is founded, 
 probably, as much on the difficulty in proving the knowledge of 
 the defendant as upon any other reason. In a late case before the 
 English Court of Criminal Appeals, where the indictment was for re- 
 ceiving stolen cloth, knowing it to be such, it was proposed to prove 
 that the defendant had other cloth, which had been stolen about the 
 same time,' from the same owner and place, and that the prisoner had 
 given false account of it. This was so offered to prove the scienter, 
 and admitted in the court below, but in the Court of Appeals the judg- 
 ment was reversed, and the court said : " The English law does not 
 permit the issue of criminal trials to depend on this species of evidence. 
 The proposed evidence would only show the prisoner to be a bad man ; 
 it would not be direct evidence of the particular fact in issue, — namely, 
 that at the time he received. these articles he knew them to be stolen. 
 The cases of uttering with a guilty knowledge, certainly may go very 
 far, and the courts are unwilling to apply their principles generally to 
 the criminal law." 
 
 § 10. Another apparent exception is, where, in case of a homicide, the 
 dying declaration of the person killed is received in evidence, provided 
 the person, at the time of making it, had no hope of recovery. It is said 
 that the declaration should be made in articulo mortis, and with a full 
 sense of his approaching dissolution. There are other instances 
 where the declarations of others become evidence in the case against 
 the accused, but they are always iipon the principle that they are con- 
 nected with, and a part of, the transaction ; as where there was a con- 
 spiracy, or accomplices engaged in the transaction for which the accused 
 is charged. After the conspiracy is proved, whatever any one engaged 
 in it says in furtherance of the design, is evidence against all, for all 
 are embarked in the same enterprise, and the acts of any are the acts 
 of the whole. So, where a body of men, as a mob or a company, are 
 engaged in one object or transaction, whatever is said by any one of 
 them in furtherance or demonstrative of the design, is evidence against 
 any one of them after it was proved that he was engaged with them ; 
 
CHAP. vi.J CBiMlNAL EVIDENCE. 651 
 
 as the cry and declaration of the mob, was proved in the case of Lord 
 G. Gordon, as part of the transaction, and res gestse. So, in an indict- 
 ment against one engaged in the slave-trade, the declaration of one who 
 was employed as captain of the vessel was also admitted in evidence 
 upon the same principle. 
 
 § 11. The rules as to the exclusion of evidence, as res inter alios acta, 
 and that of the admission of evidence, as res gestse, are constantly 
 running in conflict, and in counteraction with each other, so that one 
 begins to operate where the other ceases to act upon the particular 
 question. The evidence is not objectionable on the ground of its being 
 res inter alios acta, when it is shown to be part of the res gestae, and 
 so e converse. This is so upon the principle that all evidence must be 
 so connected with the transaction and point in issue as to be con- 
 nected with, and form a part of, the transaction, and upon reason and 
 principles of justice the proposed evidence will form a part of the trans- 
 action, and not another, and thus demonstrate and make evident the 
 point in issue ; and, when the evidence is so connected, it is not subject 
 to the objection that it is another transaction, and res inter alios acta. 
 When the acts of a party are admissible in evidence, his declarations 
 made at the same time explanatory of the acts, are always admissible 
 as part of the res gestse.^ 
 
 § 12. Evidence is sometimes admitted not directly connected with 
 the matter charged in the indictment, but then it must be connected 
 with the party, and, in the nature and reason of things, affect him. Thus, 
 where it is necessary to prove malice, acts not included in the indict- 
 ment are admissible for this purpose, as where the accused is charged 
 with the murder of B, it is competent to show that he, on other occa- 
 sions, has threatened, or attempted, to assassinate B. Also, in a case 
 for libel or slander, for the purpose of showing malice, it is admissi- 
 ble to prove that on other occasions than those charged the de- 
 fendant published other slanderous declarations against the person 
 who complains of his conduct. On an indictment for rape, the de- 
 fendant is permitted to give in evidence the general bad character of the 
 woman, and even that she had had criminal connection with him before, 
 both for the purpose of impeaching her character for truth and rendering 
 her story incredible in itself 
 
 8 13. It is a general rule in criminal prosecutions, as well as in civil 
 cases, that the best evidence that the nature of the case admits of must 
 be produced, and if that cannot be found, then the next best evidence 
 may be substituted. The neglect of the party to produce such best 
 evidence in his power will infallibly induce the presumption that if it 
 were brought forward it would produce evidence against him, and that 
 
 » See "Wetmore vs. Wall, 1 0. B. S. 26; Leggett vs. State, 15 O. K.. 283. 
 
652 CRIMINAL LA W. [book iv. 
 
 he suppressed it for that reason. Thus, if a party offers a copy of 
 a'deed ia evidence instead of the deed itself, when it was known that 
 the original was in his possession, this 'throws a suspicion on the 
 transaction; for why offer the copy when the original is in his power? 
 Parol evidence is inadmissible to prove the contents of a note, receipt, 
 or other writing in the power of the party offering it to produce it, until 
 such party has first shown to the satisfaction of the court that he has 
 made due effort to fiud and produce it. If the original is lost, so that, 
 after due search, it cannot be found, or where it is proved to be in the 
 hands of the opposite party, who, after due notice (or has it in court), 
 refuses to produce it, then secondary evidence may be resorted to, and 
 the copy admitted in evidence ; or if there be no copy, then parol evi- 
 dence may be given of its contents. 
 
 § 14. In objecting to parol evidence, it should be carefully noticed 
 whether the evidence offered is evidence of an independent fact, of 
 which the writing may be evidence, or whether it is offered as proof of 
 the contents of the writing itself; for if it is to prove an independent 
 fact, it is no objection to it that there is a writing, or a written history 
 of the same fact. Thus, where it is desirable to prove a payment, and 
 there is a receipt given for it ; now, if the parol evidence is offered for 
 the purpose of proving the actual payment or satisfaction of the debt, 
 there is no valid objection to the evidence, but if the parol evidence is 
 to show the contents of the receipt, or to show that the debt was re- 
 leased by means of the receipt, then the writing itself must be produced. 
 
 § 15. Circumstantial a,iid presumptive evidence is admitted in crimi- 
 nal proceedings upon the same principles as in civil matters.^ In the 
 former class of cases this species of evidence is necessarily admitted from 
 the secrecy with which crimes are often committed, and therefore the 
 prosecution of a case often depends wholly upon circumstantial evidence. 
 But this species of evidence is received with great caution, for the his- 
 tory of criminal jurisprudence furnishes lamentable instances of convic- 
 tions and punishment, even in the cases of the penalty of death, where 
 the victim was afterward, but too late, found to be innocent. 
 
 § 16. For these reasons the law now cautiously requires, before a 
 conviction be had upon circumstantial evidence, that the crime itself 
 should be fully proved, so that no person shall suffer for imaginary of- 
 fenses ; and therefore the rule is that there must be a clear and un- 
 doubted proof of the corpus delicti before a conviction is warranted. 
 Proof of the existence of the crime can and should be separated from 
 the question whether it was committed by the accused ; and when this 
 is so done, the proceedings are one step nearer a certainty than when 
 disregarded. Thus, in a case of homicide, the death should be distinctly 
 
 1 See post, J — , and ante, B. iii, ch. vi. J 41-46. 
 
CHAP. VI.] CRIMINAL EVIDENCE. 653 
 
 and unequivocally proved, and that he came to his death by violence. 
 So, in a case of horse-stealing, the mere evidence of the horse being 
 missing is not sufficient proof of the corpus delicti, for the facts of the 
 case must so appear before the court and jury that the property was 
 feloniously taken, and not departed by accident or taken away by a breach 
 of trust, before the accused is connected with it, or a conviction is had. 
 
 II. THE INSTRUMENTS BY "WHICH EVIDENCE IS PRODUCED IN 
 
 COUET. 
 
 § 17. The principles upon which evidence is admitted or rejected 
 being thus established, the next inquiry is the instruments or means 
 by which such evidence is produced in court. These are two : — I. By 
 means of witnesses testifying orally in court ; and II. By means of 
 written documents, or things themselves produced and examined in 
 court. Sometimes, when it is deemed advisable by the court, the jury 
 is sent out to examine the place in question — the locus in quo — them- 
 selves, when that is convenient, and the matter deemed expedient.' 
 
 § 18. The attendance of witnesses is enforced by a process from the 
 court called a subpoena, issued on either side, at the instance of the 
 prosecuting attorney or the accused, by which the witnesses required 
 by either party are commanded to attend at the time and place desired 
 to give evidence in court in the case, under a certain penalty. The 
 code provides that it shall be the duty of the clerk in all criminal cases, 
 upon a praecipe being filed, to issue the subpoena for the witnesses 
 named, directed to the sheriff of the county, or any county in the State 
 where the witnesses may be found, which is to be served and returned 
 as in other cases ; and the sheriff, by writing indorsed on the writ, may 
 depute any disinterested person to serve and return such subpoena, 
 which, when served by deputy, shall be returned with the manner in 
 which the same was served indorsed thereon, and make oath or affirma- 
 tion to the same. In such cases the attendance of the witnesses is en- 
 forced, and when necessary, their non-attendance punished, in the same 
 manner as in civil cases.' 
 
 § 19. The defendant has an important provision made in his favor 
 by the code,' which directs that when issue in fact is joined on any in- 
 dictment, and any material witness for the defendant resides out of the 
 State, or residing here, but sick or infirm, or is about to leave the State, 
 the defendant may apply in writing to the court in term time, or the 
 judge in vacation, for a commission to examine such witness upon in- 
 terrogatories thereto annexed, and the court or judge may grant the 
 same and order what notice shall be given the prosecuting attorney, 
 
 1 The court may order a view. See code, § 206. 
 
 sSee the Criminal Code, | 141-143. • Code, g 144. 
 
654 CRIMINAL LA W. [book iv. 
 
 before the witness shall be examined, which examination and the return 
 shall be made in the same manner as depositions in civil cases. 
 
 § 20. When two or more persons are joined in the same indictment, 
 the court may, at any time before the defendant has gone into his de- 
 fense, direct any one of the defendants to be discharged, that he may be 
 a witness for the State. A co-defendant may also be discharged when 
 there is not sufficient evidence against him to put him upon his defense, 
 or, if not discharged by the court, shall be entitled to the immediate 
 verdict of the jury, for the purpose of giving evidence for others ac- 
 cused with him; , and a discharge in either case shall be a bar to any 
 other prosecution for the same offense. These provisions of the code 
 are so far in accordance with the principles of the common law that 
 they may be considered the same. 
 
 § 21. When a witness has in his possession or control an important 
 paper, desirable on the part of either party to be used in evidence in the 
 case, it is usual in the same subpoena to insert a clause requiring such 
 witness to bring with him such paper, to be used in evidence on the 
 trial of the cause, and is called a duces tecum subpoena. And when a 
 person is a prisoner of the law, in any case, confined in jail or elsewhere, 
 and such person's testimony is needed in any case in court, upon appli- 
 cation to the court, and upon showing made, the court will cause a writ 
 of habeas corpus ad testificandum to be issued, requiring the officer 
 having such witness in his custody to have such person in court to 
 testify in the case. 
 
 2. ADMISSION AND EXCLUSION OP WITNESSES. 
 
 § 22. When a person is offered as a witness in court, there are two 
 classes of objections to his testimony : — 1st, to his competency ; and 2d, 
 to his credibility. The first is such objection as would entirely exclude 
 him ; the second is such as is not sufficient to exclude the witness, but 
 went to impugn the credibility of his testimony. At common law these 
 objections prevailed in the same manner in criminal prosecutions as in 
 civil cases, except as to interest, which did not prevail to the same ex- 
 tent, for the injured person or the prosecuting witness would be a wit- 
 ness, though apparently much interested in the case, — as where the 
 prosecution was for an assault and baitery when he has a civil suit for 
 the same offense ; or, perhaps, was entitled in some cases for a reward 
 for the conviction. And, although interest was an objection to a wit- 
 ness, as in civil cases, he was still held competent in these instances at 
 common law, upon the principle that the law would not presume that, 
 in a public prosecution, a man would be actuated by such interest as he 
 might have.' An accomplice was always considered a competent wit- 
 
 » Eoscoe's Crim. Ev. 130, 140; see Williams's cose, 9 Bar. and Cros. 5G0; 17 
 E. C. L. K. 440. 
 
CHAP. VI.] CRIMINAL EVIDENCE. 655 
 
 ness, and often have persons been convicted on such testimony alone ; 
 but the court usually instructed the jury to receive the testimony of an 
 accomplice with caution, and, generally, it was required to be supported 
 by other circumstances. 
 
 § 23. Thus, at common law, objections were sustained to the com- 
 petency of a witness in criminal cases much ia the same manner as 
 at law, on account of interest, infamy, conviction of any crime con- 
 sidered crimen falsi; but recently, both in England and this country, 
 such objections, by statutes,' have been turned from objections to the 
 competency to the credibility of the witness, and its effect upon the 
 credit due to the testimony to be weighed by the jury. But still there 
 exist certain objections to the competency of the witness, in criminal 
 as in civil cases, such as the want of sufficient intelligence, on account 
 of the want of mind or age ; or that of religious belief, upon which the 
 sanctity of an oath is founded. On the last subject, the rule established 
 in Ohio is, that if the witness believes in the existence of God, and 
 that the oath is binding upon bis conscience, he is a competent witness, 
 though he does not believe in a future state of reward and punishment. 
 
 § 24. The first objection, the want of understanding, goes to show 
 that the witness ought not to be sworn at all, on account of some 
 incapacity or defect of intellect ; and the second, on account of the 
 want of proper appreciation of the obligation of an oath, which, by 
 the law, lies at the foundation of all testimony as evidence, for all 
 testimony may be objected to and rejected until it is delivered upon the 
 sanction of an oath. In order that such oaih — which is an appeal to 
 God for the truth of his testimony — should have any validity, the 
 witness must at least " believe in the existence of a God, and acknowl- 
 edge that the oath is binding upon his conscience." As a general rule, 
 any person may be a witness who has sufficient intellect to understand 
 what he says and does, and understands and acknowledges the obliga- 
 tion of an oath and its religious and moral sanctity. If the witness 
 is too young or too feeble in intellect to understand this, he must at 
 once be rejected as incompetent. A person who is insane cannot be 
 sworn and testify while that malady continues, though he may in his 
 lucid intervals, when reason has returned. 
 
 § 25. There is considerable discrepancy in the practice, as to when 
 and how these objections should be made. There is no doubt that they 
 should be made as soon as the party is aware that the objection exists, 
 otherwise it may be assumed that he waives them ; besides, it would be 
 unfair to knowingly wait until he sees what the testimony would be, 
 and then, after seeing whether it was for or against him, to raise the 
 objection. Formerly, it was the rule to require the objection to be 
 
 1 Stat. 6 7, of "Victoria ; Ohio Cr. Code, and statutes of other States. 
 
656 CRIMINAL LA W. [book it. 
 
 raised, if known, before the witness was sworn in chief; and for this 
 purpose the witness might be sworn to his examination on the subject 
 of the objection, which was called his voire dire oath. If he was so 
 examined, the party was bound by his answers, and precluded from 
 calling other witnesses to sustain the objection. But the objector 
 might, in the first instance, call other witnesses to sustain his objection ; 
 but he was not permitted to resort to both methods, for he was bound to 
 take only one or the other.' The practice in Ohio is, to permit the witness 
 to be sworn in chief, and on that oath examine him as upon the voire 
 dire ; or call other witnesses to sustain the objection, before the witness 
 is examined in chief. But it is usual to exclude the witness on the ob- 
 jection of competency whenever it appears in the course of the exami-, 
 nation, if made as soon as it is known. But when it is discovered that 
 there is a want of understanding, that objection will prevail at anytime. 
 
 § 26. Formerly a child was not supposed to be competent to be a 
 witness until he was at least nine or ten years of age ; but now it is 
 considered that a child, however young, is competent, if he understands 
 the obligation of an oath. A person who is deaf and dumb, who can 
 communicate his ideas by signs, and has a proper understanding of the 
 obligation of an oath, may be examined as a witness, and testify by 
 means of his signs through an interpreter. The form of administering 
 the oath to a witness is not invariably the same. The usual oath 
 should be administered, unless the witness requires a different form, 
 and declares it to be his usual form, and the one he considers the most 
 binding on his conscience. It should be according to the religious be- 
 lief of the witness. The general practice is to admit all persons to be 
 sworn according to the ceremonies of their respective religion, provided 
 they believe in God and consider the oath binding upon their conscience. 
 A Mohammedan is sworn upon the Koran ; the Chinese by breaking a 
 saucer ; the Catholic on the Bible ; the Protestant while holding up his 
 hand ; and the Quaker by swearing not at all, but by making an affirma- 
 tion. All of which are equally efficacious as an obligation, and subject 
 the false witness to the pains and penalty of perjury. 
 
 § 21. Both in England and in this State all objections to the compe- 
 tency of a witness now go to his credibility, except those which lie at the 
 very foundation of all human oral testimony, — sufficient understanding 
 to testify intelligently, and sufficient religious belief to sanction the obli- 
 gation of an oath. All other objections which formerly excluded the wit- 
 ness, now go to his credibility, to be weighed by the jury, as to the reliance 
 to be put upon the testimony ; such as any objection on account of his 
 conviction for crime ; or infamy of character or reputation ; or the in- 
 terest he may have either in the result of the case or in the question. 
 
 iSee Koscoe's Bv. 166; also Bisbee vs. Hall, 3 0. E. 449; Dille vs. "Woods, 14 
 0. E. 122 i Le Burrow vs. Eedman, 30 Maine E. 536. 
 
CHAP. Ti.] CRIMINAL EVIDENCE. 657 
 
 § 28. The code now declares : " No person shall be 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 convic- 
 tion of any crime ; but such interest or conviction may be shown for the 
 purpose of affecting his credibility." But the most extraordinary is the 
 provision, "that in all proceedings against a person charged with an 
 offense, the person so charged shall, at his own request, but not other- 
 wise, be deemed a competent witness ; nor shall the neglect or refusal 
 to testify create any presumption against him, nor shall any reference 
 be made to, nor any comment upon, such neglect or refusal.'" 
 
 § 29. The objections that may now be taken to the competency of a 
 witness under the cod'e are : — 1. The want of sufficient understanding. 
 2. The want of a due sense of the obligation of an oath. These have 
 been considered, and to them may be added : 3. That witness is the 
 husband or wife of the party defendant in the prosecution ; for the law 
 will not permit husbands and wives to criminate each other, or to be 
 witnesses fer the purpose of impeaching or controverting each other. 
 Thus, in a case for bigamy, the first wife is not permitted to testify in 
 the case, because the first marriage is accepted to be a valid one; but 
 the second wife may be a witness, after proof of the first marriage, for 
 that, in law, rendered the second marriage void. But to this there is 
 this exception : that the wife may be a witness against her husband, 
 where she is the complainant for injuries done to herself; and this is 
 founded upon the necessity of the case, and for the personal protection 
 of the wife. All other objections which formerly were made to the 
 competency of witnesses in criminal cases now go only to their credi- 
 bility, and the evidence goes to the jury, to be considered by them for 
 what they deem it worth under the objection made to it: 
 
 3. EXAMINATION OF WITNESSES. 
 
 § 30. The examination of the witnesses must be in open court, in the 
 presence of the accused, who has a right to meet the witnes.ses face to 
 face, and see them duly sworn ; hear them testify; have an opportunity 
 to make his objection, and cross-examine them; and to observe the 
 manner and conduct of the witness while delivering his testimony. But 
 the witness has also his rights and protection. He is not bound to 
 make any disclosures, or answer any question which will criminate 
 himself; and the court will protect him in the objection. Where a 
 question is put to him, the answer to which may criminate him, he may 
 object to answer on that account ; and if he says, under oath, that he 
 cannot answer the question without criminating himself, all are bound 
 by the answer, except that the court may judge whether it is possible 
 
 > See Criminal Code, § 139, 140. 
 42 
 
658 CRIMINAL LA W. [book iv. 
 
 for the answer to criminate ; such as that he is in some manner protected 
 fi'om a prosecution on account of some matter that protects him from it, 
 as the statute of limitations, pardon, or the like ; for then he is bound to 
 answer.' But if the answer would still disgrace him, he is not bound 
 to answer, and is protected as in the case where he is subject to a 
 criminal prosecution and penalty. In either case, this protection is the 
 privilege of the witness, which be may waive, if he chooses not to claim 
 it ; and if he once commences on the answer, he must go through with 
 it, and cannot object to be cross-examined on the subject. Nor is he 
 protected from answering on account that he may be liable to a pecu- 
 niary claim in a civil suit. 
 
 § 31. Another privilege of a witness is, that he is not bound to disclose 
 any matter or conversation that passes between him and his legal 
 counsel. This is strictly the privilege of the client, and not that of the 
 counselor or the attorney ; and such professional adviser will not, as 
 a witness, be permitted to make such disclosures, even in case he should 
 be so disposed, as it is the privilege of the client, which he is not 
 permitted to violate. In the like manner are persons privileged from 
 disclosing what has come to them in an official capacity as a matter of 
 state policy or secret, — as the case of a member of Congress or of the 
 President's cabinet. But it seems that confidential disclosures made to 
 other professional persons, as to a physician or a clergyman, are not 
 thus privileged, though it would appear that principles of humanity 
 would demand that confidence reposed m a physician or priest in sick- 
 ness and peril should be protected in the same manner as confidential 
 communications to his legal adviser ; but it seems it is not so decided. 
 Confidential communications made to any other class of persons are not 
 privileged from disclosure by witnesses in court. 
 
 § 32. The manner of examining witnesses is the same in criminal as 
 in civil cases, except that where a question is really a leading question 
 it is more objectionable.^ But where a witness is found to be reluc- 
 tant, or adverse to the party calling him, leading questions will be per- 
 mitted to be put ; and where there is reason to suspect the witness to 
 be untruthful, the court will indulge counsel in the cross-examination 
 to almost any extent in testing the veracity of the witness. Before the 
 examination commences, the counsel on the opposite side may request, 
 and the court will order the witnesses, except the one then to be exam- 
 ined, to withdraw from the hearing of the case, until they are severally 
 called in for examination. This is done for the purpose of preventing 
 them from learning a story by bearing the testimony of the others. 
 This will be strictly enforced by the court, and any infringement of the 
 order will be punished. 
 
 > See Stark. Evidence, 41, and n. 2. « See B. iii. ch. vi. J 23-29. 
 
CHAP. VI.] CRIMINAL EVIDENCE. 659 
 
 § 33. Almost all objections to a witness now go to his credibility, 
 and these objections may be brought out at any time in the course of 
 the examination, either in chief or cross-examination, and the objection 
 will be available without question as to what period in the examination 
 It was elicited. If such objection does not sufficiently appear upon the 
 examination, the opposite party, at the proper time in his turn, calls up 
 witnesses to impeach such witness upon any subject that may go as 
 an objection to his credibility; but generally this is done upon question 
 as to the reputation of the witness for truth and veracity. Such evi- 
 dence may be introduced for the purpose of impeaching as to his gen- 
 eral character for truth, or to contradict or discredit his testimony as 
 to facts; or to establish any fact which goes to his credit. 
 
 § 34. But when the witness is attempted to be impeached out of the 
 main subject proved in the case by something the witness has said or 
 done elsewhere as contradicting what he has testified in court, it is 
 necessary first to lay a foundation- for it by a cross-examination on the 
 subject, so as to give the witness an opportunity to explain his previous 
 sayings or doings if he can. Thus, in a case for seduction, the daugh- 
 ter testified that she had been seduced by the defendant ; it was held 
 that the defendant could not give evidence that she had talked of B as 
 her seducer, unless she had been first asked in her cross-examination 
 whether she ever said so, in order that she might explain herself if she 
 could. This rule was first so established in the celebrated Queen's case,' 
 and which has since been followed both in England and this country. 
 
 § 35. The witness may not only be impeached by his own cross- 
 examination, or by facts to contradict and discredit him, or by proof of 
 some fact or facts which formerly went to the competency but now go to 
 his credibility, as a former conviction, interest, and the like, but also to 
 impeach his character for truth and veracity. This last is only per- 
 mitted to be done by evidence that his general reputation for truth and 
 veracity is not good, or was bad. The question in such case is as to 
 his reputation, and not the character of the witness, for questions as to 
 character would lead into collateral issues, which in all cases should be 
 avoided ; and also for the reason that a witness is supposed to be al- 
 ways ready to sustain his general reputation (not character) for vera- 
 city, but not as to particular facts upon which character might depend. 
 Although in common parlance reputation and character are synony- 
 mous, yet in the law of evidence a distinction is made, and therefore a 
 person may say of another that his reputation was good, but his char- 
 acter he know was very bad, — that is, his reputation may be different 
 from bis real character. It is the real character that the court and jury 
 
 > Queen's case, 2 Br. & Bi. (6 E. C. L. R. 311) ; see also Carpenter vs. Wall, 
 11 Ad. & El. (39 E. C. L. K. 803); gtark. Ev. [214] and n. e. 
 
660 CRIMINAL LA W. [book iv. 
 
 would like to get at, but for the reasons given they can only reach the 
 character as an inference from his reputation. But it should here be 
 observed, that a party is not permitted to impeach a witness whom he 
 has introduced, nor to contradict what such witness has testified, unless 
 he has really and in good faith been misled by what he had been in- 
 formed and led to believe he could prove by such witness. 
 
 § 36. Written documents constitute the second class of instruments 
 of evidence ; and as to them the rules of evidence in criminal prosecu- 
 tions are the same as in civil cases. Their admissibility is tested by 
 the same rules as to their being primary or secondary evidence, whether 
 pertinent to the issue, as in civil cases ; and for that subject the student 
 is referred to Evidence in Civil Procedure for the general principles on 
 the subject of written documents as evidence. 
 
 III. WHAT MUST BE PEOVED, AND ITS QUANTITY AND QUALITY. 
 
 § 37. The general rule is that the affirmative of the issue must be 
 proved, and that he who alleges a fact must prove it. This is in accord- 
 ance with reason and common sense ; besides it is, in most cases, impossi- 
 ble to prove a negative which does not admit of that simple and direct 
 proof of which the affirmative is capable. This rule was so obviously 
 right, that it was a maxirii of the civil law, ei incumhit probatio, qui 
 dicit non qui negat ; and with us the same is said in other words : — 
 " The burden of proof is always with the party who takes the afiirma- 
 tive in pleading."' This burden of proving what one has alleged is 
 technically called onus probandi. To this rule — that it is the affirma- 
 tive of the issue that is to be proved — there is apparent exception ; — 
 that in criminal cases, where it is alleged, as a part of the oiTense, a 
 negative averment, it is necessary to introduce some proofs at least, 
 from which such negative might reasonably be inferred ; as where a 
 statute subjected a person to a penalty who sold goods in a place with- 
 out being a householder therein ; in a prosecution for such penalty some 
 evidence of such negative, that he was not such householder, would 
 be necessary. When it is charged upon any one, the omission of any 
 act enjoined by law, the omission must be satisfactorily proved, 
 although it involved the proof of the negative.^ 
 
 1 Stark. Bv. [586], 534; 1 Mass. K. 71 ; 9 Pick. K. 39. 
 
 2 See Pvoscoe's Cr. Ev. 79 ; Stark. Ev. [590], and in n. i, exceptions to it. 
 
 ' It may be here remarlced, tliat the words testimony, evidence, and proof fre- 
 quently appear as synonymous, but they are not so. Testimony is the evidence 
 given in by witnesses orally. Evidence includes everything that is brought for- 
 ward to prove the issue. Testimony may be evidence, and the evidence, if suffi- 
 cient, may be proof. Testimony and evidence Is that which tends to prove the 
 issue ; but proof is that which is sufficient for that purpose. See ante, book iii. 
 ch. vi. 2 1, n. 4. 
 
CHAP. VI.] CRIMINAL EVIDENCE. 661 
 
 §3S. What must be proved is the substance of the issue, that is, 
 every material and essentia) allegation of the charg-e ; but if the chai-ge 
 contains more thaa what is sufficient to constitute the offense, it is suffi- 
 cient to prove so much of the charge as will constitute a crime as part 
 of the charge, though not to the full extent of the indictment :— thus, 
 where the charge was the stealing ten bushels of wheat, and proof was 
 the stealing of only one bushel of wheat in the manner charged ; or 
 where the indictment is for murder, and the proof shows the case to be 
 only manslaughter; or for an assault and battery, and the assault only is 
 proved ; in all these cases the proof will support a conviction, for what is 
 proved as a part of the indictment which, in itself, constitutes an offense. 
 
 § 39. So it is where there is a variance as to number, time, or 
 place, provided what is proved is within a part of that which is 
 charged in the indictment, and is within the jurisdiction, and would 
 constitute a crime ; for the rule is, that it is sufficient to prove a 
 part of what is alleged according to its legal effect, provided that 
 which is alleged and not proved be neither essential to the charge 
 nor limits that which is essential.' The redundancy in either the 
 proof or the matter charged is not material, unless such redundant 
 matter essentially qualifies the other, for the maxim is, utile per inutile 
 non vi/iaiure. The exception to this is, where the matter alleged is a 
 description of a writing, or a thing itself, as where it purports to be a 
 copy, or something which identifies the thing, for then the variance may 
 be fatal, because it is not the matter charged. 
 
 § 40. As to the qualify and quantity of evidence, the rule is, that 
 although the best evidence that the nature of the case will admit of 
 must be produced ; still that refers only to the quality, when compared 
 with other kind of evidence, and not the quantity ; therefore, when 
 there is a writing, parol evidence of its contents will not be admitted, 
 for the writing itself is the best evidence ; but where a fact has been 
 witnessed by a dozen men, the evidence of one is sufficient if that is 
 believed, and not contradicted by other evidence or circumstances. But, 
 in such cases, the party must be well satisfied, before he rests his case 
 on such evidence, that the point will not be further controverted; for, 
 after a submission on the point, and the opposite party has produced 
 evidence to controvert it, he will not be permitted to go back and intro- 
 duce further evidence in chief on a point thus once submitted and 
 closed on his part. He is not permitted to go back to what is called 
 evidence in chief, i.e. evidence to prove the case in the first instance ; 
 but the evidence then must be confined to proving new facts that go to 
 controvert the evidence since given in on the other side, i.e. evidence to 
 discredit or disprove it, but not to augment the original evidence. 
 
 I See Stark. Bv. [632], and n. ij Koscoe's Cr. Ev. 103, etc., and 109, etc. 
 
662 CRIMMAL LA W. [book it, 
 
 § 41. As a general rule, one witness to a fact or case, uncontradicted, 
 is sufficient to establish it; but to this rule there are two noted excep- 
 tions : — 1, in case of treason, where positive law requires two witnesses 
 of overt acts ; and 3, in case of perjury, which also requires two wit- 
 nesses, and which is required upon principle and the nature of the case, 
 for the accused has sworn positively to the matter charged as perjury, 
 and then, if there be but one witness against it, there would be but one 
 witness against one, and oath against oath ; therefore there must be 
 the testimony of another witness to preponder the evidence against the 
 accused, in order to show that the matter in which the perjury is as- 
 signed was false, or that it was supported by such circumstantial 
 evidence as amount to the testimony of another witness. 
 
 §42. There are four other exceptions made by our recent code: — 
 1. In trials for taking a woman away with intent to force her to be 
 married or defiled, or for seduction or prostitution, no conviction eball 
 be had on the evidence of the female offended against, unsupported by 
 other evidence, 2. In trials for procuring or inciting another to commit 
 perjury, though perjury be not committed, no conviction shall be had 
 on the evidence of the person attempted to be influenced, unsupported 
 by other testimony. 3. In trials for treason, no evidence shall be given 
 of any overt act that is not expressly laid in the indictment; and no 
 conviction shall be had upon any indictment for said offense unless one 
 or more overt acts be expressly alleged therein. 4. In trials for con- 
 spiracy, in cases where an overt act is required by law to constitute 
 the ofiFense, no conviction shall be had unless one or more overt acts be 
 expressly alleged in the indictment, nor unless one or more of the acts 
 so alleged be proved ; but other overt acts not alleged in the indict- 
 ment may be given in evidence on the part of the prosecution. 
 
 § 43. Presvmptive and circumatantial evidence is relied upon in 
 criminal prosecutions as in civil actions, and is often appealed to on 
 either side. Presumptive evidence is as conclusive as human testimony 
 will enable us to establish the existence of any fact. It is what experi- 
 ence has enabled the law to establish as the existence of one fact as a 
 deduction from the proof of others, as a natural or inevitable conclusion 
 or consequence. Such presumptive conclusions must necessarily cx^st 
 in all human affairs, and are equally due to justice and humanity. 
 Thus, the law presumes that every one accused is innocent until the 
 contrary is established by due proof, — that what is done in obedience 
 to the law is presumed to be well or rightly done, until the contrary is 
 established by evidence. 
 
 § 44. So, when an unknown fact is sought for, and there is no positive 
 evidence, as where a person is absent, and it is questioned whether he 
 is dead or alive, it being once known that he existed, until something 
 to the contrary is proved, it will be presumed, during the ordinary life 
 
CHAP. VI.] CRIMINAL EVIDENCE. 663 
 
 of man, that he still exists as a live man ; but if he has gone to parts 
 unknown, and has not been heard of for seven or more years, it will be 
 presumed that he is dead. The law establishes such presumptions 
 upon probabilities deduced from human experience, and fix certain 
 periods to events as a matter of necessary conclusion. 
 
 § 45. Analogous to these presumptions, are those instances where 
 the court will take official or judicial notice of facts and things, with- 
 out any evidence being introduced upon the subject, as they will take 
 notice of general laws of the country, — its divisions into counties and 
 districts; or the ordinary mode of computation of time; or what is 
 generally known as part of the history of the country, and the like. 
 
 § 46. Whenever direct evidence can be had, it should be produced, 
 and when it is not, it is a mark of suspicion against it, as where sec- 
 ondary evidence is introduced instead, of the primary. But frequently 
 ■when such direct evidence cannot be had, persons are compelled to rely 
 upon circumstantial evidence in its stead. This is more frequently the 
 case in criminal prosecutions than in civil actions. But the principles 
 upon which it rests, and the rules governing it, are the same in both 
 classes of cases, and therefore reference is made to the title Evidence 
 in Civil Proceedings for those general rules and principles upon which 
 the doctrine rests.' 
 
 § 47. It has been said, even in criminal cases, that circumstantial 
 evidence was often more reliable than direct evidence. But the truth 
 of this must principally depend upon how many different and inde- 
 pendent sets of circumstances conspire as coincidents to prove the 
 same point in issue. For when three or more of such independent 
 circumstances and coincidents, which go, each, satisfactorily to prove 
 the fact in question, the problem becomes more satisfactory, and we 
 may well suppose they could not thus concur without its being true.' 
 But the certainty of such circumstantial evidence depends upon the 
 number of such independent sets of facts concurring as coincidents, 
 and each one taken separately consistent with, and excluding, every 
 other hypothesis. For if they will go consistently to prove any other 
 state of facts, consistent with the innocence of the accused, then it 
 amounts to no satisfactory evidence. 
 
 I See B. iii. ch. vi. g 41-40. 'See Starkie's Ev. [859], etc. 
 
664 CRIMINAL LA V(. [book iv. 
 
 CHAPTER VII. 
 
 TRIAL, JUDGMENT, AND EXECUTION. 
 
 § 1. All the preliminary steps having |been taken, the accused is 
 now, in the regular course of proceedings, brought to his trial. He has 
 been arraigned and pleaded, and though he may have pleaded a special 
 plea, which was found against him, yet the court (in favor of mercy) 
 permits that plea to be withdrawn, and lets the prisoner have, at last, 
 the benefit of a trial on the plea of " not guilty." If the accused is not 
 discharged on some previous question or plea, he is sure, by the hu- 
 manity of our law, eventually to have the benefit of this plea of the 
 general issue, where the State is bound to prove against him all the 
 substantial and essential facts of the offense alleged, and charged in the 
 indictment against him. It is, therefore, upon such plea and issue that 
 he is supposed to be brought to trial before the court and jury. 
 
 § 2. But still the accused is sometimes advised by his friends and 
 counsel, even at this stage of the proceedings, that there is no chance 
 for his acquittal, and recommend him to withdraw his former plea, and 
 plead guilty. This the court, upon motion, will permit to be done, upon 
 being informed that this step is advisedly and freely taken. Upon that 
 being done, the plea of " guilty" is entered upon the indictment instead 
 of not guilty, and carried into the journal and record ; and then the ac- 
 cused is ordered into the custody of the sheriff to await his sentence.^ 
 
 § 3. The case of the accused being called upon in its order on the 
 docket of the court, or at some convenient time assigned by the court 
 for its trial, and his plea of not guilty entered on the indictment, as 
 stated, — unless there be some good cause for a continuance, as the ab- 
 sence of some material witnesses, whose attendance could not have been 
 procured at that time, — the parties, that is, the prosecuting attorney on 
 the part of the State, on the one side, and the prisoner and his counsel 
 on the other, must be ready and proceed in the trial. The arraignment 
 having been had, and the jurors in court, in obedience to the summons 
 of the venire, they are now called to answer to their names, and be 
 impaneled in the jury-box. As they appear they are challenged by 
 each party alternately, in the manner stated in a former chapter.^ In 
 this manner twelve jurors are procured who are able to stand their 
 several challenges, if any are made. The jury are now ready to be 
 
 > Code, I 119. 8 Ch. iv. J 70-85. 
 
CHAP.vii.] TRIAL, JUDOMEN-T, AND EXECUTION. 665 
 
 sworn, which oath is administered to them by the clerk, generally at 
 once, and by holding up each his right hand, unless some one of the 
 jurors claim his oath in some other manner, as by aa afiBrmation. The 
 oath administered to the jury by the clerk, under the eye and directions 
 of the court, is this:—" You shall well and truly try, and true deliver- 
 ance make, between the State of Ohio and the prisoner at the bar (giv- 
 ing his name), so help you God." 
 
 § 4. " No person indicted for a felony shall be tried unless personally 
 present during the trial. Persons indicted for a misdemeanor may, at 
 their own request, by leave of the court, be put on trial in their absence. 
 The request shall be in writing, and entered on the journal of the 
 court." " When two or more persons are indicted for a felony, each 
 person so indicted shall, on application to the court for that purpose, be 
 separately tried."' But in cases of misdemeanor, such separate trial is 
 a question of discretion with the court, which is granted or refused, as 
 the court perceives that a fair and impartial trial can be had with or 
 without such separate trial. 
 
 § 5. Everything being thus prepared for the progress of the trial, 
 the code directs that it shall proceed in the following order : — " 1. The 
 counsel for the State must state the case of the prosecution, and may 
 briefly state the evidence by which he expects to sustain it.^ 2. The 
 defendant or his counsel must then state his defense, and may briefly 
 state the evidence he expects to offer in support of it. 3. The State 
 must produce its evidence ; the defendant will then produce his evi- 
 dence. 4. The State will then be confined to rebutting evidence, unless 
 the court, for good reasons, in furtherance of justice, shall permit it to 
 offer evidence in chief. 5. When the evidence is concluded, either 
 party may request instructions to the jury on points of law, which 
 shall be given or refused by the court ; which instruction shall be re- 
 duced to writing, if either party require it. 6. When the evidence is 
 concluded, unless the case is submitted without argument, the counsel 
 for the State shall commence, the defendant or his counsel follow, and 
 the counsel fur the State conclude tjie argument to the jury. t. The 
 court, after the argument is concluded, shall immediately, and before 
 proceeding with other business, charge the jury ; which charge, or any 
 charge given after the conclusion of the argument, shall be reduced to 
 writing by the court, if either party request it, before the argument to 
 the jury commenced ; and such charge or charges, or any other charge 
 or instruction provided for in this section, when so written and given, 
 shall in no case be orally qualified, modified, or in any manner explained 
 to the jury by the court; and all written charges and instructions 
 shall be taken by the jury in their retirement, and returned with their 
 
 > Code, I 152, 153. 2 Code, I 151. 
 
666 CRIMINAL LAW. [book iv. 
 
 verdict into court, and shall remain on file with the papers of the 
 case." 
 
 § 6. Thus is a fair and impartial trial secured to the defendant in 
 every criminal prosecution, whether for treason or other felonies, — ■ 
 whether for a capital offense or misdemeanors. But the important 
 matter to the accused is his constitutional rights in relation to his trial, 
 which guaranty to him a fair and impartial trial by a jury, i.e. twelve 
 good and lawful men of his county as his peers ;^ and also, that he shall 
 not be called upon to answer the accusation, except upon an indictment 
 or presentment of the grand jury, in which the cause and nature of the 
 offense shall be plainly stated. 
 
 § 7. It was not until recent times, according to the English practice 
 under the common law, that persons charged with felony were per- 
 mitted counsel to state or argue the case of the accused to the jury ; for 
 this was left to the prisoner to do for himself as best he might, which 
 gave to the ingenious and artful great advantages over the awkward 
 and ignorant; and although, at the present day, counsel are allowed in 
 all criminal cases in England, to state and argue the case for the pris- 
 oner, yet their mode of doing it is very different from that practiced 
 in this country. Their principal argument on either side is in stating 
 the case, and before the evidence is heard. To us, this has very much 
 the appearance of putting the cart before the horse. The usual order 
 of proceeding in a trial of a criminal case in this country is concisely 
 stated in the above extract from our code, except the severe manner in 
 which it requires the charge of the court to be reduced to writing.'' 
 
 § 8. The counsel for the State having stated to the jury, in the open- 
 ing of the case, the substance of the charge in the indictment, which it 
 is expected to be able to prove, and briefly stated the evidence he ex- 
 pected to introduce to support it, the accused, or his counsel, will then, 
 in the like manner, state his defense, and, briefly, the evidence (if any) 
 he intends to introduce in support of it. In doing this, neither party 
 should enter into any argument to prove any logical conclusion to be 
 derived from the evidence either expected to produce, but confine them- 
 selves to a plain and accurate statement of the substance and essential 
 part of each one's case as developed by the pleading, and as expected to 
 be supported by his evidence. This is for the purpose of informing the 
 court and jury the kind of case the parties had before them for trial, and 
 
 ' See Constitution of U. S., 5th and 6th amendments ; and the Constitution of 
 Ohio, art. 1. § 
 
 2 See 4 Stephens's Com. 426 ; 4 Blackst. Com. 358. The English practice in 
 criminal cases was placed in its present order by stat. 6 and 7 Will. IV. ch. 114, in 
 1837. Their form of proceeding in the argument of a case, either criminal or 
 civil, is concisely and well stated by M.r. Starkie. (1 Stark. Ev. 611, etc., and 
 notes. 
 
CHAP, vii.] TRIAL, JUDGMENT, AyD EXECUTION. 667 
 
 especially to enable the jury to properly understand and apply the evi- 
 dence, when they come to hear it. 
 
 § 9. The State next introduces the evidence prepared for the support 
 of the case, as charged in the indictment ; and, in doing this, it is well 
 always to produce it before the court in its chronological order, as near 
 as practicable, for then it is easier understood and appreciated. In 
 doing this, the counsel for the State are governed by the rules of evi- 
 dence as already laid down, and the substantial allegations of the indict- 
 ment according to the law of the case. There are also special rules as 
 to evidence, dependent upon the class of cases to which the case on 
 trial belongs, as treason, perjury, homicide, rape, etc., which may re- 
 quire more or less evidence to support, as the constitution or statute 
 may require it. 
 
 § 10. As the evidence on the part of the State proceeds, the counsel 
 for the accused, from time to time, as new evidence is introduced, will 
 object to the competency of the testimony or evidence, or to its relevancy, 
 or its being res inler alios. If the objection only goes to the credibility 
 of the evidence, it is well now to suggest it. Sometimes the objection 
 to the evidence does not appear, or may not be known until after it is 
 heard. A motion then may be made that the obnoxious evidence be 
 overruled. If the court overrule any of these objections, and admit 
 the evidence to the jury, exceptions, may then be taken to the opinion 
 of the court, and time taken to draw up the exception. 
 
 § 11. Upon it being announced by the counsel for the State that they 
 were through with the evidence, and rested the case upon the evidence 
 on their part, the counsel for the prisoner might then move the court 
 to instruct the jury that* the evidence was insufficient to sustain the 
 charges against the defendant, and that they therefore were bound to 
 render a verdict of not guilty, which they should do forthwith in their 
 box. This should be so done because the court are bound to see that 
 the accused is not convicted contrary to law and evidence. When the 
 court sees cleai-ly that the evidence is insufficient to warrant the con- 
 viction, the court should say so and so instruct the jury ; and should 
 the jury insist upon finding the prisoner guilty in such case, notwith- 
 standing the instruction of the court, it would be the duty of the court 
 to set aside the verdict and order a new trial. The court will thus in- 
 terfere and express their conviction upon the evidence when clearly in 
 favor of the accused, but never against him, giving him the advantage 
 of the verdict in his favor, so that in this matter, as well as others, the 
 accused may have the advantage of it in his favor, with the converse 
 of it bein"' decided against him, — so that he may suffer less, but never 
 more than the just principles of law will warrant. 
 
 8 12. Such motion may be founded upon the grounds that the State 
 has failed to prove some one of the essential allegations charged in the 
 
668 CRIMINAL LA W. [book iv. 
 
 indictment necessary in order to sustain a conviction, — as, for instance, 
 that it was not proved that the offense supposed to have been committed 
 was so committed within the county of the venue, or the county to which 
 the prosecution belongs. This must be affirmatively shown by the evi- 
 dence on the part of the State, or there is a failure of proving one of 
 the essential affirmative allegations on the part of the State, — essential 
 both for the commission of the crime and giving the court jurisdiction 
 of the offense. For the right to be prosecuted and tried only within 
 the county is guarantied by constitutional provision, and is an essen- 
 tial aud inseparable part of the common law doctrine and right of trial 
 by ji'i'y If it is not proved that the crime was committed within the 
 county, it does not appear to be an offense of which the court had any 
 jurisdiction, and therefore the accused must be acquitted. In such 
 glariug failures of this kind, the court has never exercised the power 
 of opening the case again for the purpose of letting in sucli evidence, 
 although the counsel for the State might inform the court that they 
 were ready with such testimony in court for that purpose, and that it 
 was not introduced by mere oversight, for the reason that to do so 
 would be trifling with the time of the courtj with the principles of a 
 fair trial, and with the liberty of the citizen. 
 
 § 13. So it would be in the neglectto prove any other essential aver- 
 meot of the charge in the indictment, — as if there was no time proved 
 to show when it was. It is not necessary to prove the precise day 
 alleged, for it is not essential that it should be on any particular day, 
 for it is immaterial whether it was on a particular day in one month 
 or another, or one year or another, but some time should be proved; 
 and if the prosecution is limited to any particular time, it should 
 appear affirmatively to be within that time. It would be the same 
 with regard to any other essential fact charged in the indictment. 
 
 § 14. But it is not necessary to prove all that is charged in the in- 
 dictment. If the evidence tends to prove aud make out a crime within 
 what is charged, though not to the extent therein alleged, what is 
 proved must constitute an offense of itself, and it must be within the 
 allegations of the indictment ; and then, if there be any evidence, 
 however slight, upon each essential point, it must go to the jury, 
 for it is their province to determine the weight of evidence and say 
 whether the charge is proved or not, if there be any evidence on the 
 point; though they are bound to acquit, if they entertain a rational 
 doubt upon such point in question ; and though the court might, after 
 such connection, be constrained to grant a new trial, for the reason that 
 clearly the evidence did not warrant the conviction. It is necessary 
 that the law should be so administered in order to preserve distinct the 
 several provinces of the court and jury. It is the province of the 
 court to determine what is evidence, and to say whether there is any 
 
CHAP, vii.] TKIAL, JUDGMENT, AND EXECUTION. 669 
 
 evidence on an essential point or not ;' but if there be any evidence, it 
 is for the jui-y to weigh the evidence and determine the amount of cre- 
 dence to give it. 
 
 § 15. But here it should be remembered what has been said under 
 the head of evidence/ what the code has provided as to the amount of 
 evidence required in the four cases of treason, perjury, conspiracy, and 
 seduction, which, in some measure, modifies the evidence required at 
 common law. 
 
 § 16. If there be no successful motion to interfere with the ordinary 
 progress of the trial, the defendant's counsel will now proceed to pro- 
 duce his evidence, which may be to contradict and disprove the facts 
 attempted to be proved on the part of the State; and this maybe (l)to 
 contradict and disprove the evidence on the part of the State by direct 
 proof to the contrary ; or (2) by some indirect or circumstantial evi- , 
 dence, as by what is called an alibi ; or (3) by evidence to impeach and 
 discredit the testimony given in on the part of the State. 
 
 § 17. (1) The defendant, in producing his evidence to the court and 
 jury, is governed by precisely the same rules of evidence as that which 
 governed the State. He is permitted, if he can, by direct and positive 
 evidence to controvert and falsify the facts assumed to be proved on 
 the part of the State. It has been witnessed in a case depending upon 
 the identity of a horse, in which the testimony of ten or a dozen wit- 
 nesses on either side testifying positively upon the subject, the one that 
 it was the horse of the claimant, the other that it was not, — both equally 
 honest and credible witnesses ; but those on one side, some time after 
 that, proved to have been mistaken, by the production of the missing 
 horse, which had a strong resemblance, but not exactly alike. In such 
 conflict of testimony the jury will have to weigh the testimony, and 
 determine the probable truth, if they can ; — to reconcile the evidence 
 with the truth of the case, if they can consistently with their conscience ; 
 but still, if any rational doubt remain upon their minds, they must give 
 the benefit of such doubt to the accused ; for the State is bound to prove 
 the accusation satisfactorily, or the defendant is entitled to his acquittal. 
 
 § 18. (2) The defendant has the same right to disprove the charge by 
 indirect or circumstantial evidence as the State had to sustain the 
 charge by the same kind of evidence. The strongest kind of testimony 
 of this species of evidence, when satisfactorily proved, is that of an 
 alihi. This term, though seldom met with in recent treatises, is a term 
 well known to the profession, and in common use, and as ancient in the 
 
 1 See Bobbins vs. State, 8 O. S. E. 131, where the court says : " It is the duty of the 
 jury to receive the law as determined by the court, and no juror can rightfully 
 disregard the law as delivered in the Instructions of the court to the jury." 
 
 ' See ante, ch. vl. g 40-45. 
 
670 . CRIMINAL LA W. [book it. 
 
 common law as the time of Bracton.^ The idea suj?gested by it would 
 occur to every thinking inind, and, when truthful, nothing more just. 
 In criminal law, it means that the accused was elsewhere than at the 
 place when and where the crime was committed. If the accused can 
 show that he was elsewhere (alibi), at a place such distance from the 
 place of the commission of the crime, so that it is impossible to presume 
 that he committed the offense at the time alleged and proved, such de- 
 fense is very just and right, when true, but often claimed upon fictitious 
 circumstances. 
 
 §19. (3) The defendant may, in his defense, introduce evidence to 
 impeach and discredit the testimony given in by the witness for the 
 State. The manner of impeaching a witness has been treated of; the 
 examination is only permitted as to the general character of the im- 
 peached witness ; in reality, it is only to his reputation ; for it is not 
 permitted to prove facts to show the real character, as that would im- 
 mediately lead into a collateral issue, and to proof of matters that the 
 parties interested would not be prepared to meet; but a witness is sup- 
 posed to be always ready to sustain his general reputation for veracity, 
 from which alone the jury must infer his character.'' 
 
 § 20. Upon the impeachment of a witness, the inquiry should be re- 
 stricted to his general reputation for truth and veracity; and, for that 
 purpose, any form of words may be adopted by which to ascertain 
 whether the impeaching witness has sufficient knowledge of the public 
 estimation for truth in which the impeached witness is held by those 
 who know him.'' For this purpose, the usual question is : Do you know 
 the general character (or reputation) of the witness in question, and, if 
 so, what is that general character for truth and veracity ? And it is 
 also permitted to be asked, when the witness on the stand has answered, 
 showing that he has such knowledge: Would you, from such knowledge 
 of his character, believe him on his oath? On the cross-examination 
 of the last witness, the inquiry should be limited to his opportunity of 
 knowing such witness's character from such reputation ; how long a 
 time and how general such evil reports have prevailed; and from 
 whom and what sources derived.' 
 
 § 21. The witness may also be impeached by proving that he has 
 made a different statement out of court of a matter pertinent to the 
 issue upon which he had been examined. But, generally, such contra- 
 dictory evidence of statements made out of court, and not directly in 
 
 ' Seo 1 Burrill'9 Diet. 58, which cites Poster's Cr. Law ; Wills on Circumstan- 
 tial Bv.; Bracton, fol. 140, a. 
 
 2 See ante, ch. vi. § 30-36. 
 
 8 See 5 O. S. E. 605, Craig vs. State; also Wharton's Cr. Law, 312. 
 
 * It is a rule not to permit a witness to be called to impeach an impeaching wit- 
 ness. That is better done by Siupporting the character of the first. 
 
CHAP. VII.] TBIAL, JUDGMENT, AND EXECUTION. 671 
 
 issue, are not permitted, unless the witness impeached while on the 
 stand was examined as to the matter, so as to give him, in the first 
 place, an opportunity to explain it, according to the rule established in 
 the Queen's case.' 
 
 §22. Another matter connected with circumstantial evidence, which 
 may here be considered, is the previous character of the accused. The 
 State is not permitted to prove the character of the defendant, for the 
 purpose of raising a presumption of guilt from such bad character; 
 the nearest thing permitted, is to prove previous threatening's against 
 the person injured. Nor is the defendant required to prove anything to 
 support his character and show that he has maintained a good reputar 
 tion, for it is presumed, in the first place, that he is an innocent man ; 
 and the State is bound to make out his guilt aflBrmatively without any aid 
 derived from considerations of this kind. But as a person's good char- 
 acter, in reference to the kind of offense with which the accused stands 
 charged, would be a very important matter to take into consideration 
 in determining the question of guilt, especially in doubtful cases, the 
 defendant is permitted to introduce such evidence for his exculpation, 
 if he choose to do so ; but by so doing he opens the question, and chal- 
 lenges the State upon that question, and enables it to contradict it 
 and impeach the fairness of his character in that respect. This, there- 
 fore, is a dangerous expedient for the defendant, unless he is certain 
 that it will prove successful. In doing this, both sides are usually con- 
 fined to the question of general character, for neither will be permitted 
 to go into particular acts, and thereby get up a collateral issue. In 
 cases where the evidence otherwise is about equally balanced, a good 
 character, in relation to the matter charged, would be a very important 
 matter in the defense of the accused. 
 
 § 23. When the defendant has closed the evidence on his part, the 
 State is again permitted to introduce evidence to rebut and discredit 
 the evidence of the defendant, but is strictly confined to doing so, and 
 is not permitted to go back to strengthen and support its original case. 
 The counsel for the State will be permitted to introduce testimony to 
 support the character of his original witnesses impeached and show 
 tlieir general character for veracity to be good, but not permitted to im- 
 peach the character of the impeaching witness on the other side ; but is 
 confined in that respect to showing the character of the impeached 
 witness to be good and entitled to credence. 
 
 1 See ante, ch. vi. § 30-36 ; Wharton's Cr. Law, 233. 
 
672 CRIMINAL LA W. [book iv. 
 
 PROGEESS OF THE TRIAL AFTER EVIDENCE CLOSED. 
 
 § 24. The evidence being closed on both sides, the counsel on either 
 side may request instructions to the jury from the court upon any point 
 of law pertinent to the case, which may be given or refused by the 
 court ; but, if given, either party may request such instruction to be re- 
 duced to writing. If the court refuse either to give the proposed in- 
 struction, or refuse to reduce it to writing, the counsel desiring it may 
 take a bill of exceptions to the refusal, so as to make the point raised 
 by it a part of the record, so as to base upon it proceedings in error, if, 
 at a future time, it should become desirable to do so. Such instruc- 
 tions, at this stage of the trial, are not frequently asked, but the parties 
 proceed with the trial in the argument of the case to the jury. 
 
 § 25. In the argument of the case by the parties, their counsel pro- 
 ceed upon established rules and principles, founded upon the utmost 
 fairness and justice. In this country the argument and comment, in- 
 tended to be made in illustration of the points of the case as claimed by 
 either party, are not attempted until after the evidence on both sides 
 has been fully heard and understood, so that there is no mistake or mis- 
 representation afterward to be corrected ; but all this proceeds upon 
 fixed basis as developed by the evidence, and not upon what was ex- 
 pected or supposed would be proved in the case, but which, with sad 
 disappointment, was not afterward proved.^ 
 
 § 26. The counsel for the State are governed precisely by the same 
 rules as those which control the counsel of the accused, and the same 
 that govern in all civil cases. The party who has the affirmative of 
 the issue to sustain in the evidence has the opening and closing of the 
 argument. In a case depending upon the general issue of " not guilty," 
 the State is bound to sustain affirmatively every material allegation 
 necessary to constitute the offense of which the defendant is charged ; 
 the counsel for the State has the opening and closing of the argument. ■ 
 Usually, in all cases of importance, two of the counsel on either side 
 are heard. The junior counsel on the part of the State opens, and is 
 followed by the two counsel for the defendant; and then the case is 
 closed by the senior counsel for the State. This arrangement is some- 
 times interfered with by an ingenious application of the rule of the 
 court in all cases civil and criminal : — that when the case has been 
 argued by counsel on one side, and that of the other side declines to 
 follow, no further argument will be heard on the part of those who 
 
 1 See Stsirkie'a Evidence, 610-614, and compare the English mode with ours, 
 and observe tlie partiality given to the counsel for the Crown over that of the 
 accused in the argument of the case. 
 
CHAP, vn.] TBML, JUDaMENT, AND EXECUTION. 673 
 
 opened the case, — no reply can be heard to what might be supposed to 
 be the defease of the prisoner, if his counsel were disposed to make 
 one. When the counsel for the defendant perceive that but a feeble 
 impression has been made in the opening, and fear the effect of what 
 might come in the close, they ingeniously announce to the court that, 
 having full confidence in the merit of their case, they respectfully de- 
 cline to argue it, and submit the case to the jury under the charge of 
 the court. By this means they sometimes cut off an able and powerful 
 argument prepared for the close of the case. 
 
 §■27. But the court require that the conduct of the counsel on either 
 side, in these arguments, should be fair, frank, and ingenuous, free from 
 abuse, and to the points in the case. It is therefore expected that the 
 counsel who opens the case will fairly disclose every point which will 
 be insisted upon in the closing ; and the court have sometimes enforced 
 this by permitting the counsel to reply to a point which was strenu- 
 ously insisted upon in the closing which had*not been developed in the 
 opening, and had the appearanee of having been disingenuously and pur- 
 posely held back. If any point of law or authority be used in the clos- 
 ing argument that had not been previously used, the court will always 
 permit a reply to such points and authorities. 
 
 • § 28. The charge of the court to the jury is the next step in the 
 course of the trial. The code provides that after the evidence is closed, 
 and before the argument commences, either party may require instruc- 
 tions to the jury on any point of law, which instructions must be re- 
 duced to writing if either party require it. Tlie court are required, 
 immediately after the close of the arguments, to charge the jury in the 
 manner already stated ; but that strenuous manner of requiring in writ- 
 ing (and it must be done, if at all, before the argument commences) is 
 not usual. It is not uncommon to request instructions upon some point 
 of law to the jury before the argument commences, or to request certain 
 instructions to the jury in the charge, which, if refused, or if the instruc- 
 tions or charge be not acceptable, exceptions may be taken to either the 
 refusal, instructions, or charge of the court. 
 
 § 29. The jury, in considering and returning their verdict, are to be 
 governed by the same form and mode of proceeding as in civil cases, 
 except where the code specially otherwise directs. The jury retire to 
 their room under the charge of an officer of the court. In trials for fel- 
 ony the jury are not to be permitted to separate, after being sworn, until 
 discharged bv the court; and in trials for misdemeanor they are not to 
 separate after receiving the charge of the court until discharged. A 
 jury may be discharged on account of sickness of a juror, or other acci- 
 dent or calamity requiring their discharge, or where there is no proba- 
 bility of their agreeing upon a verdict. When such discharge is made, 
 
 43 
 
674 CRIMINAL LA W. [book it. 
 
 the court are to enter upon their journal the reason for so doing; -but 
 sneh discharge shall be without prejudice to the prosecution.^ 
 
 § 30. When the jury have agreed upon their verdict, they will return 
 into court in charge of the officer ; and before the verdict is accepted, 
 either party, the prosecuting attorney or the defendant, may request that 
 the jury may be polled, which is done by the clerk calling the name of 
 each juror and asking hira if he agrees to the verdict. If they all an- 
 swer affirmatively, the verdict is complete, but if any one answer nega- 
 tively, they must, under the direction of the court, retire again to con- 
 sider their verdict, unless the court deem that they have been so long 
 in endeavoring to agree that there are no hopes of their agreeing, when 
 the court, in their discretion, may discharge them. When the jury 
 return into court for the purpose of delivering their verdict, the accused 
 should be present, and a fair opportunity given to have his counsel to 
 be present also. At any time while considering their verdict they are 
 permitted to return into court and state any difficult point of law that 
 they desire further instruction upon, which it is the duty of the court 
 to give such instruction and aid as to the law of the case, but should 
 be careful not to interfere with the province of the jury as to their right 
 to determine and find the facts, as well as it is that of the court to de- 
 termine and control the law of the case. 
 
 § 31. The verdict must be responsive to the whole indictment. Ordi- 
 narily, a general verdict of guilty or not guilty is such ; but where there 
 are several counts in the indictment, and the jury return a verdict 
 that the defendant was not guilty under the first count, but as to the 
 other counts they could not agree, the court refused to receive the ver- 
 dict, as it was imperfect in not responding to the whole indictment. - 
 The court may aid the jury when they return into court with their ver- 
 dict in putting it into proper form, agreeably to what they have agreed 
 to ; but after the verdict has been received and recorded there seems 
 to be no power in the court to amend it, even upon the affidavit of a 
 juror that they had made a mistake in the finding.' 
 
 § 32. There are a few instances where a general verdict of guilty is 
 insufficient; for when the indictment charges an offense against the 
 property of another by larceny, embezzlement, or obtaining under false 
 pretenses, the jury, on conviction, shall ascertain and declare in their 
 verdict the value of the property; and in offenses counting of different 
 degrees, the jury may find the defendant not guilty of that charged, and 
 guilty of any degree inferior thereto ; and upon an indictment for any 
 offense, the jury may find the defendant not guilty of the offense, but 
 
 > Code, § 164, 165. 
 
 2 See Hurley vs. State, 6 O. K. 399 ; see, also, 14 Ibid. 304 ; 20 Ibid. 30. 
 
 3 Sergeant vs. State, 11 O. E. 472. 
 
CHAP. vn.J TRIAL, JUDGMENT, AND EXECUTION. 675 
 
 guilty of aa attempt to commit the same, where such aa attempt is an 
 offense.' 
 
 § 33. A number of motions may be made between the trial and the 
 rendition of judgment, which may be fatal to any further proceedings 
 in the case. Tiiere may be some serious objection to the qualification 
 of a juror not before known or discovered, or misbehavior in the jury ; 
 or there may be some defect in the verdict itself; or there may have 
 been some misstatement of the law by the court, either in the progress 
 of the trial, or in the instructions or charge to the jury ; or the discovery 
 of some new evidence or circumstance in the progress of the case 
 which may have interfered with a fair trial of the case, and lay the 
 foundation for some motion or action of the court which prevents or 
 supersedes the rendition of judgment. These may be considered under 
 the following heads: — I. New trial; II. Arrest of judgment, and, in 
 connection therewith. III. Bills of exception. 
 
 § 34. I. A motion for a new trial is now controlled and directed by 
 the code, which is a very correct embodiment of our common law 
 practice upon the subject before its adoption ; and it is this : A new 
 trial, after a verdict of conviction, may be granted, on the application 
 of the defendant, for any of the following reasons affecting materially 
 his substantial rights: 1. Irregularity in the proceedings of the court, 
 jury, or the prosecuting attorney, or the witnesses for the State, or 
 any order of the court, or abuse of discretion, by which the defendant 
 was prevented from having a fair trial. 2. Misconduct of the jury, or 
 tlie prosecuting attorney, or of the witnesses for the State. 3. Acci- 
 dent or surprise which ordinary prudence could not have guarded 
 against. 4. That the verdict is not sustained by sufficient evidence, 
 or is contrary to law. 5. Kewly-discovered evidence material for the 
 defendant, which he could not, with reasonable diligence, have discov- 
 ered and produced at the trial. 6. Error in law occurring at the trial. ^ 
 
 § 35. The motion for a new trial must be in writing, stating the 
 grounds of it, and filed at the time the verdict is rendered, and shall, 
 except for the cause of newly-discovered evidence material for the 
 party applying, which he could not with reasonable diligence have 
 discovered and produced at the trial, be within three days after verdict 
 was rendered, unless unavoidably prevented. On such motion for a 
 new trial being made, founded upon any of the causes for a new trial 
 enumerated above, those for divisions two, three, and five must be 
 sustained by affidavits showing their truth, and which may be contro- 
 verted by affidavits.^ 
 
 § 36. A new trial is a re-examination of the case in a trial before a 
 jury, by setting aside the proceedings of the former trial, and proceed- 
 
 '■ Code, 2 167, 168. » Code, ? 102.. ^ Code, ? 193, 191 
 
676 CRIMINAL LA W. [book it. 
 
 ing anew as thougb there had been no previous trial. The success of 
 the motion is a matter very much in the discretion of the court, and it 
 usually requires to be satisfied of the truth of the facts upon which the 
 motion is founded, and that they materially affect the rights of the de- 
 fendant, or the motion is denied. The courts but little regard matters 
 that were apparent at their transpiring, and were not then objected to 
 as being presumed that the party then intended to waive them. But 
 if it was a matter that materially affected the result of the trials, or 
 probably had that effect, the supposed waiver should not be regarded. 
 
 § 37. It is to be observed that the code does not intimate that a new 
 trial may be had, on the part of the State, when there is a verdict of 
 acquittal. This is in accordance with the practice wherever the com- 
 mon law prevailed. The general rule is, that when there has been a 
 verdict of acquittal, the defendant has the benefit, and there can be 
 no new trial granted, though the result be produced by error of law, 
 or misconception of the fact. It is universally conceded that where 
 there has been an acquittal the case must abide the decision of the jury; 
 but it has been contended that where the acquittal was the result of an 
 error of the court in stating the law to the jury, that there should be a 
 new trial.' This, however, has not been supported by authoritative 
 adjudications. But the former doctrine would appear to be the only 
 one consistent with our form of government, which places all criminal 
 prosecutions so completely in the hands of the peojple, who are exclu- 
 sively to say whether the accused is worthy of punishment or not; by 
 such constitutional principles as that, no person shall be called to answer 
 a criminal accusation except on the presentment of the grand jury, in 
 which the cause and nature of the offense are plainly expressed; nor 
 pronounced gjiilty except by a verdict of a jury fairly and impartially 
 impaneled ; nor twice put in jeopardy for the same offense. It would 
 therefore seem to result from our established principles of government, 
 as naturally arising out of the common law, that where there has been 
 a verdict of acquittal, that must be an end, as to that offense, as to all 
 further prosecution. 
 
 § 38. But it is in favor of the accused that the principles of a new 
 trial in criminal cases are established, so that if he be acquitted by the 
 verdict of a jury he shall go acquit; but he shall not be convicted ex- 
 cept where the law and the facts will warrant it, upon a fair and just 
 trial. Where these qualities are wanting in the conviction, the defend- 
 ant is entitled to a new trial, in the manner pointed out by the code, 
 which is strictly in conformity with the common law and the former 
 practice. In "England, however, it seems that in cases of treason and 
 
 'Wharton's Cr. Law, 870; People vs. Mather, 4 Wendell K. (N. Y.) 266; 6 0. 
 K. 899 ; also XJ. S. vs. GUbert, 2 Sumner's E. 19. 
 
CHAP. VII.] TRIAL, JUDGMENT, AND EXECUTION. 677 
 
 felony, except by the B. R., a new trial is not granted, but the judg- 
 ment is respited, and the accused recommended for pardon. But in 
 ca.'ses of misdemeanor their practice and ours is very similar. In these 
 respects, we know no distinction in this country between the higher 
 crimes and misdemeanor, except such as preponder in favor of the ac- 
 cused.' 
 
 § 39 It may bo noticed here, that a jury may, contrary to their usual 
 practice of rendering a general verdict of guilty or not guilty, which 
 they always have a right of doing, render a special verdict, in which is 
 set forth all the circumstances of the case, and pray the judgment of the 
 court, whether, upon the facts stated, the defendant be guilty of the 
 crime charged in the indictment, or it amounted to no crime within the 
 matter so charged. This is done where the jury doubt the matter of 
 law, and choose not to take upon themselves the responsibility of de- 
 ciding it, but cast that upon the court by a special verdict. When this 
 is done, the court is bound to declare the law upon the case, if they are 
 able to do so from the facts stated. But sometimes this is so imper- 
 fectly done, the court may be dissatisfied with it, as with a general ver- 
 dict, and, therefore, set it aside; but by the common law practice there 
 seems to be a difference between the two cases, stated thus : — After a 
 special verdict, a venire facias de novo is the proper mode of proceed- 
 ing ; but after a general verdict, it should be by an application for a 
 new trial. The difference between a new trial and a venire facias de 
 novo is, that the former may be granted upon the reason of some im- 
 proper direction or charge of the court, misconduct of the jury, and the 
 like instances upon which new trials are usually granted ; but the latter 
 is only grantable where some mistake is apparent on the record, which 
 the special verdict may enable the court to perceive. But in our prac- 
 tice there is no such observable difference, and in either case the new 
 jury was obtained by an order for a new trial, which, of course, must 
 be confined within the principles laid down by the code for a new trial. 
 
 § 40. II. A motionin arrest of judgment, according to the common 
 law practice, would reach any objection that would have been fatal 
 upon demurrer. It was then the practice of able practitioners not to 
 demur to such objections, but to go on with the trial, and if their client 
 was acquitted, it was all well enough ; if, unexpectedly, he was con- 
 victed, then move in arrest on the objections. But now, under our 
 statutes of jeofail in criminal matters, and the rulings of the court, in 
 some instances, that trial and verdict waive or cure the objection, 
 have, in many instances, obviated the objection, and prevented the ar- 
 rest of judgment. 
 
 § 41. A motion in arrest of judgment, the code provides, may be 
 
 >See Wharton's Cr. L. 313 j Dearsly's Cr. Process, 43 [72], 
 
678 CRIMINAL LA W. [book iv. 
 
 granted by the court for either of the following causes : — first, that the 
 grand jury which found the indictment had no legal authority to inquire 
 into the offense charged, by reason of it not being within the jurisdic- 
 tion of the court; second, that the facts stated in the indictment do not 
 constitute an offense. But no judgment can be arrested for a defect of 
 form, and the motion for the arrest must be made within three days 
 after the verdict is rendered.' The effect of allowing the arrest shall be 
 to place the defendant in the same position, as it respects the prosecu- 
 tion, as before the indictment was found. If, from the evidence on the 
 trial, there shall be sufficient reason to believe him guilty of the offense, 
 the court shall order him to enter into a recognizance, with sufBcicnt 
 security, conditioned for his appearance at the first day of the next 
 term of the same court, otherwise he shall be discharged.^ Here it may 
 be proper to remark, that it has become the policy of our law and prac- 
 tice, — contrary to what it formerly was, — whenever an accused person 
 procures his discharge on account of defect in the proceeding^as'upon 
 habeas corpus ; or in consequence of a variance or defect or mistake in 
 the indictment, so that the proper offense was not charged therein ;" or 
 on a motion to quash, and, in the like cases, whore it appears to the 
 court that, notwithstanding such discharge from such then prosecution, 
 there was really a good cause of prosecution, it then becomes the duty 
 of the court to order such person into custody, and order him to enter 
 in a recognizance to answer such accusation, or to remain in custody 
 until discharged by due course of law. 
 
 § 42. The late statutes of jeofails in criminal cases in England 
 and in some of the States enable the courts to obviate objection on 
 mere technical grounds, which might be made in arrest, and which 
 were formerly successful, by amendments after as well as before ver- 
 dicts.' To allow the solemn act of the grand jury to be amended so 
 as to read as though it were so presented by tbem, appears to be a 
 very strange proceeding, to say the least of it. Our code nowhere 
 allows so dangerous an example as the alteration of such solemn re- 
 cord after it is done, when it is functus officio; it only allows such 
 amends while the thing is in fieri. But the code in many instances 
 obviates objections that might be fatal in arrest or error on mere tech- 
 nical grounds, by declaring that certain objections are waived by a 
 demurrer or plea in bar or the general issue instead of a motion to 
 quash or a plea in abatement." Others are waived by the verdict; 
 others are obviated by declaring what shall be sufficient averment; but 
 
 1 Code, ? 195-e-8. « Code, ? 19^. 
 
 3 Code, I 154. And tlii.s ia the case even when the jury has been impaneled, and 
 a nolle prosequi entered. See code, g 154, 155. So on motion to quash and place 
 in abatement, § 110. 
 
 * See Statutes 14 and 15 Viot., c. 100, 1851. 6 gee code, J 111. 
 
CHAP. VII.] TRIAL, JUDGMENT, AND EXECUTION. 679 
 
 nowhere directs or authorizes the record to be altered or amended after 
 the act is passed. It in a more judicious manner accomplishes all that 
 IS desirable.' Arrests of judgment are now by the code reduced to a 
 very few instances. Formerly it was a ground for arresting the judg- 
 ment because the verdict was unintelligible;^ and the same effect might 
 be now had by a motion to set aside the verdict and grant a new trial. 
 
 § 43. III. Bills of exception is our last subject of inquiry connected 
 with the trial. This is for no immediate purpose in the progress of the 
 trial, but for the purpose of laying the foundation for a reinvestigation of 
 the case in error, if it should become desirable to do so at some future 
 time. The necessity for a bill of exception and the principles upon which 
 it is founded are these : In proceedings in error the court can take no 
 notice of any ground of error for the purpose of reversing the judg- 
 ment, except such errors as appear in the record. The record, ordi- 
 narily, is made up only of the process, pleadings, motioiTs, verdict, and 
 judgment. Nothing appears in the record of the evidence upon which 
 the court and jury acted, nor of the incidental rulings, instructions, 
 and chargings of the court, which frequently constitute the very mar- 
 row and soul of the case. The only way that these matters can be 
 brought into the record so as to make them the subject of investigation 
 in error is by a bill of exception to the opinion and ruling of the court. 
 When the court has, upon motion or otherwise, decided any incidental 
 question, the party who may be dissatisfied with it may then take a 
 bill of exception to such opinion and order of the court, in which are 
 stated moiion, facts, the ruling or opinion of the court, and the excep- 
 tion of the party to it; which, being reduced to writing, is signed and 
 sealed by the court, and thence becomes a part of the record. The 
 matter thus becoming a part of the record, it becomes a subject that 
 may be reinvestigated in error. 
 
 § 44. The bill of exception may be taken almost in any part of the 
 progress of the case in which the court may make any decision or order, 
 especially after the commencement of the trial. This is particularly the 
 case upon the introducuon of the evidence, when the court comes to 
 decide questions as to the admissibility or exclusion of evidence to the 
 jury, or their rulings as to the competency of witnesses and the suffi- 
 ciency and insufBciency of the evidence. To the opinion and decision 
 of the court a bill of exception may be taken, stating the evidence 
 offered to be introduced, and the opinion and ruling of the court thereon, 
 and the exception of the parly thereto. It should be noticed here that 
 in order to make the exception to the overruling of evidence effectual, 
 it must be followed up by a motion for a new trial and the motion over- 
 ruled by the court. Fur the error in regard to the evidence might be 
 cured by a now trial, if the motion be made. 
 
 » Code, J 90-100, 112, 196. ^ gee Wharto.n's Cr. L. 803. 
 
680 GBIMINAL LA W. [bock iv. 
 
 § 45. The code provides that — " In all cases where a defendant shall 
 feel himself aggrieved by any opinion or decision of the court, he may 
 present his l)ill of exceptions thereto ; and it shall be the duty of the 
 court to sign and seal the same ; and the taking, preparing, and sign- 
 ing and sealing of said bill shall be governed by the rules established 
 in such matters in civil cases. AVhere the ground of exception is that 
 the verdict is not sustained by sufficient evidence, or is contrary to law, 
 and the court has overruled a motion for a new trial made on that 
 ground, the bill of exceptions shall set out the evidence. The bill of 
 exceptions, when signed and sealed, shall be made a part of the record, 
 and shall have the same force and effect as in civil cases." The code 
 also provides that the prosecuting attorney may, in the like manner, take 
 exceptions, but according to such provisions, the reversing the decision 
 in error is to have no other effect than to establish the question by a deci- 
 sion of the supreme court, which was to have no effect on the defendant 
 in the case.' 
 
 II. JUDGMENT AND ITS INCIDENTS. 
 
 § 46. The judgment of the court, upon the previous proceedings and 
 conviction by the verdict of the jury, is the next subject of consideration. 
 It should be here again noticed that the code directs that in cases of 
 indictment for felony, the accused must be present during the whole trial ; 
 but in misdemeanors the accused may, by his own request in writing, 
 and entry made upon the journal of the court, and by leave of the court, 
 be put on trial in his absence.^ It is equally necessary that the accused 
 person should be present when the court comes to pass sentence upon 
 him ; and this is the imperative duty of the court,* as provided by 
 law, where a conviction has been had, either upon a voluntary plea of 
 guilty, entered at the instance of the accused himself in court, or upon 
 the verdict of the jury. 
 
 § 47. Before the sentence is pronounced, the defendant must be in- 
 formed by the court of the verdict of the jury, and asked whether he 
 has anything to say why judgment should not be pronounced against 
 him.* And then, if not before, a motion may be made to arrest the 
 judgment, or any other legal objection may be made against the sen- 
 tence and judgment of the court. If therebe'no such legal objection, 
 then the code directs : " Whenever any person shall be convicted by 
 confession or otherwise, of any offense punishable either in whole or 
 in part by fine, such person may move the court to hear testimony in 
 mitigation of the sentence ; and it shall be the duty of the court to hear 
 such testimony at such time as may be suitable and proper, at the term 
 of the court at which the motion is made, or the court may continue 
 
 1 Code, § 156-160. " Code, ? 152. a Code, J 170. " Code, I 169. 
 
CHAP. VII.] TRIAL, JUDGMENT, AND EXECUTION. 681 
 
 the case to a future term on the same terms as the case might have 
 been continued before verdict or confession ; and it shall be the duty 
 of the prosecuting attorney to attend to such proceedings on behalf of 
 the State, and to, offer any testimony necessary to give the court a true 
 understanding of the case.'" 
 
 § 48. The sentence and judgment authorized in such cases are — 1. In 
 capital cases, — which is only in cases of murder in the first degree, — 
 to suffer death by being hung. 2. In cases now called felonies, — where 
 the convict is to be sent to the penitentiary, — that he be transported 
 hence to the penitentiary of the State, there to be confined at hard labor 
 for life, or for the number of years authorized by the penalty annexed to 
 the offense. 3. In cases of misdemeanor, — that he be confined in the jail 
 of the county a certain number of days, and in some cases to be fed- on 
 bread and water only, and to pay a fine of dollars, — both or either. 
 But the minor offenses are generally punished by a fine only. In all 
 these sentences there is added a judgment that the convict pay the costs 
 of the prosecution, which, in most of the cases, the county is never able 
 to collect. From these judgments there is no appeal, but they are sub- 
 ject to be reviewed upon a writ of error, as will hereafter be explained. 
 
 § 49. If the defendant is acquitted by the verdict of the jury, the 
 court enter upon the journal and record a judgment in his favor, very 
 much in the same form of entry, except being adapted to his discharge. 
 Such entry is usually thus : " Whereupon all and singular the premises 
 being seen and fully understood by the court now here, it is considered 
 and adjudged by the court that the defendant be discharged of the 
 premises and go hence without day." When the judgment is pro- 
 nounced, it should be entered upon the journal of the court, and the 
 same will go, of course, regularly into the final record of the case. This 
 record, when so made up by the clerk, will state the whole case as found 
 in the papers on file, and in the journal and docket of the court. It 
 gives a whole history of the case, chronologically, as found and disposed 
 of; it commences with stating the county, court, and its session ; the 
 process, if any, by which the defendant was brought in to answer; 
 the presentment of the grand jury, by name ; the delivery of the indict- 
 ment into court; the arraignment, pleadings, and issue; the impanel- 
 ing of the jury ; the trial ; the verdict; the asking the defendant why 
 judgment should not be pronounced against him; and then, finally, the 
 judgment passed by. the court. It is from such record that an exemplified 
 copv is made out and certified, to be used in any other court or place. 
 
 § 50. There is by our law, in cases of criminal conviction, no such 
 consequence following the judgment as forfeiture of property or cor- 
 ruption of blood, as are to be found in the laws of most countries. 
 
 > Code, I 171. 
 
682 CBIMINAL LAW. [book it. 
 
 There is nothing more than the immediate penalty announced against 
 him in the judgment, and the consequent disgrace. No such thing as 
 following it up with vengeance, and visiting the iniquity of the father 
 upon his innocent children and family. 
 
 III. EXECUTION AND ITS INCIDENTS. 
 
 §51. After judgment is rendered in the ordinary and regular course 
 of things, execution of that judgment is the next step in carrying out 
 the sentence and penalty of the law. This is performed by a writ 
 issued from the court by the clerk, as a ministerial act, and attested by 
 the seal of the court, directed to the executive officer of the court, — usu- 
 ally the sheriff of the county, — informing him of the judgment of the 
 court, and the names of the parties upon whom the penalties of the 
 judgment are to be visited, and requiring him by its command to carry 
 the judgment into execution ; and the writ itself is called the execution. 
 
 § 52. There are no corporeal punishments inflicted by our laws, ex- 
 cept death, as a punishment for a single crime, — that of murder in first 
 degree. When this sentence is to be carried into execution, the code' 
 directs the manner in which the sheriff shall carry the execution into 
 effect. It directs that such execution shall be had by hanging, in an 
 inclosure out of public view, in the immediate vicinity of the jail, under 
 the order and direction of the sheriff; and enumerates the few persons 
 who are admitted to be present in addition to the sheriff and his assist- 
 ants. 
 
 § 53. When the convict is sentenced to the penitentiary, the code 
 requires the sheriff of the county, within thirty days, to convey the con- 
 vict there, and deliver him into the custody of the warden of the peni- 
 tentiary of this State, together with a copy of the sentence of the court ; 
 and for this purpose ample powers are given such sheriff to call upon 
 any assistance on his way thither. When the sentence is imprisonment 
 in the county jail, the convict is ordered into the custody of the sheriff, 
 who is to deliver him, with a copy of the record of the conviction, to the 
 jailer, in whose custody he is to reoiain, under the sentence, until 
 legally discharged. When there is an execution to collect a fine or 
 costs, it is levied upon any real or personal property of the defendant, 
 and made by such levy and sale, if the penalty and costs are not paid. 
 
 § 54. Somotinies the course of the execution is stopped or stayed by 
 proceedings in error or a pardon, which shall be the next subject of 
 our consideration, otherwise these proceedings in execution would be 
 the end of the law; and so it will eventually be after such proceedings 
 in error have come to a conclusion, when perhaps the same course of 
 proceedings in execution may be had. 
 
 » Code, § 181. 
 
CHAP. Tin.] ERROR, REVERSAL, AND PARDON. 683 
 
 CHAPTER VIII. 
 
 ERROR, REVERSAL, AND PARDON. 
 
 § 1. When final judgment has been rendered, the most interesting 
 question to the convict is to be informed what appellate proceedings 
 maj' be had to reverse the judgment, or to have the question tried over 
 again. Some mode of appeal or rehearing has ever existed in all coun- 
 tries which had any pretensions to a proper system of jurisprudence, in 
 criminal cases as well as civil. But everywhere the subject of appel- 
 late proceedings, especially in criminal matters, has been very imper- 
 fectly understood and exercised ;' much better in England than any- 
 where else, until that sytem was used and improved in this country. 
 Perhaps nowhere has the English mode of appellate proceedings, in 
 criminal cases, been brought nearer to perfection than in Ohio, as now 
 regulated by our recent code of criminal procedure. 
 
 § 2. The only mode of appellate procedure known to the common 
 law in criminal cases was by a writ of error, and that without bill of 
 exceptions, until comparatively modern times. Tliere was nothing ad- 
 mitted, in criminal cases, like appeals, strictly so called ; and an appeal 
 in criminal proceedings is almost entirely unknown in thi.s country, 
 where our judicial system and procedure are modeled after the common 
 law. Nor is there any necessity for it while proceedings in error are 
 admitted upon liberal terms, accompanied with bills of exceptions. 
 
 § '6. There is very little difference between the mode of proceedino- 
 and the general principles governing the matter in proceeding in error 
 in criminal cases from that which has been considered in civil proce- 
 dures ; still, there is such difference in minutiae, in criminal matter, 
 that will require some special attention. Although proceedings in 
 
 1 As evidence of this the student is referred to Anthon's Smith's Diet, of Greek 
 and Eoman Antiquities, title Appcllatio ; also to 1 New Amer. Cyclo., article 
 Appeal ; also (so far as France is concerned) to the celebrated case of Calas, in 
 which Voltaire conspicuously figured, and which is reviewed in the Eclectic 
 Magazine (N. Y.), January No. 1859, 1 vol. 92. From these articles the stu- 
 dent will be able to learn how imperfect appellate proceedings have been, espe- 
 cially in criminal cases, and will learn to admire our code, as to its generous 
 humanity and justice,— in every instance putting the rights of the State and that 
 of the accused on the same basis. 
 
684 CBIMINAL LA W. [book iv. 
 
 error to review criminal cases were known to the coramon law, and that 
 aided by motions for a new trial and in arrest of judgment, so that the 
 necessity of any other appellate proceedings for the purpose of obtain- 
 ing the ends of justice has not been felt, yet it must be confessed 
 that as proceedings in error were confined entirely in reviewing the 
 record in which the evidence and the interlocutory rulings of the court 
 did not appear, such proceedings in error must have been very imper- 
 fect relief against errors and injustice until bills of exceptions were 
 allowed as auxiliary proceeding to that in error. 
 
 § 4. Such exceptions were unknown to the common law until the 
 time of Edward I.,' when a statute was enacted requiring the judges, 
 " whenever one impleaded before any of the justices, alleging an excep- 
 tion, and praying they will allow it," they were to allow and seal it, so 
 that it might become a part of the roll. But it seems that still no bills 
 of exceptions were allowed in the English practice in cases of treason 
 or felony. The reason given for it is : '' For the words of the statute 
 are, ' when one impleads before any of the justices,' etc.; and if such 
 bills were allowed it would be attended with great inconvenience, be- 
 cause of the many frivolous exceptions that might be taken by prisoners 
 to the delay of justice ; besides, in criminal cases the judges are of 
 counsel with the prisoner, and are to see that justice is done him.'" 
 This is a singular reason, for it applies to misdemeanor as well as to 
 treason and felony, which are cases not as numerous. But in reality 
 the distinction and the reason given can only be set down — like a num- 
 ber of other incidents in criminal prosecution in English courts — to the 
 influence of the crown over the courts and judges. 
 
 I. PRnsrCIPLES AND PEACTICE IN EEPvOE AT COMMON LAW. 
 
 § 5. According to the practice in the English courts, in pursuance of 
 the common law, writs of error might be had in criminal cases from all 
 the inferior courts to the supeiior, i.e. to the King's Bench and from 
 thence to the House of Lords, — with this difference, that when the 
 court below is not a court of record, or its proceedings are summary, the 
 writ is a certiorari instead of a writ of error ; but then when the case 
 is up in the higher court upon the certiorari, the proceedings in review 
 are alike in both. It was formerly considered the obtaining of a writ of 
 error in criminal cases was a mere matter of grace upon application to the 
 king or his attorney-general ; but it was resolved by the judges in the 
 time oi Queen Anne, that a writ of error was not a mere matter of favor, 
 
 1 Stat. 13 Edward I., c. 31, about A. D. 128o ; see 1 Bac. Abr. title Bill of Ex- 
 ceptions, 528 ; 2 Wharton's Cr. Law, \ 3049. 
 
 2 1 Bacon's Abr. Ibid, supra ; and cites Sir Henry Vane's case, Sidephyn's R. 
 84, and Levinz's E. 68. 
 
CHAP, viir.] EEROR, REVERSAL, AND pardon: 685 
 
 except in cases of treason and felony, but ought, to be granted ex debito 
 justitise ; bat even then, In such cases below treason and felony, it was 
 understood that the right to have the writ granted to mean, when there 
 is a probable cause of error. It was not grantable of course, but the 
 fiat of the attorney-general must be obtained. If probable cause or 
 grounds were shown him, and he arbitrarily refused, the court would 
 compel him to comply. But in cases of treason or felony the allow- 
 ance was entirely a matter of grace, — ex mera gratia, — and could not 
 be issued without an express warrant from the king or his attorney- 
 genera).' 
 
 § 6. When the writ of error was thus allowed it might be sustained 
 in all criminal cases, even in treason, for all defects appearing in the 
 record, as upon the indictment, not cured by the verdict, or for any 
 irregularity in the awarding of the jury process ; for irregularity in the 
 verdict or judgment; for the omission of the demand of the defendant 
 what he has to say why the court should not proceed to pronounce 
 judgment against him ; and for the like instances of error. But the 
 great hardship, if not injustice, in their practice in criminal cases, be- 
 sides the denial, except as a matter of grace in cases of treason and 
 felony, was the fact also that, in those cases, they refused the accused 
 the privilege of taking a bill of exceptions, as was done in other cases — • 
 civil and criminal — and without which, on a trial before an arbitrary or 
 bigoted judge, the writ of error would be of little or no value. 
 
 § Y. If, upon hearing the case in error, the court found such error as 
 warranted it, they adjudged that the judgment rendered in the court 
 below be reversed and set at naught ; and then, if the error were in the 
 verdict or previous proceedings, they also awarded a venire de novo, 
 and sent the case back to be tried again. If the conviction were right, 
 but the error was in the judgment thereon, then the court above ren- 
 dered such judgment as the court below should have done. But if the 
 record in the case in error showed that the court had no jurisdiction, or 
 there was no ground for the prosecution, as a case without foundation, 
 as though the matter charged was, according to law, no crime, then the 
 defendant would have a judgment in his favor, — that he go acquit, and 
 that he go hence without day. 
 
 § 8. While the writ of error is pending, the prisoner remains in cus- 
 tody in cases of treason and felony, his case not being bailable; but in 
 cases of misdemeanor he may be let to bail. He must, however, duly 
 prosecute his writ, or it may be dismissed for the want of such due 
 prosecution ; and, in that event, he would be obliged to abide the origi- 
 nal judgment. In the mean time he is sometimes recommended to par- 
 don, and by that means relieved from further prosecution. 
 
 2 Bac. Abr. 453. 
 
686 CRIMINAL LAW. [book it. 
 
 § 9. Having delineated proceedings in error, as practiced according, 
 to tbe common law, oar mode of procedure shall now be treated as prac- 
 ticed utidcr the code. It provides that writs of error may be allowed 
 on 'good cause shown in all criminal cases on conviction and final judg- 
 ments, on the application of the defendant, in cases not punishable with 
 death, by the supreme court, or any judge thereof in vacation, as in 
 civil eases ; and in cases punishable with death, by said court when in 
 session, in open court, or by any two judges thereof in vacation. Upon 
 the allowance of such writ of error, the court or judge making the allow- 
 ance shall order a suspension of the execution of the sentence in cases 
 of felony until the case in error is heard and determined ; and all such 
 writs of error may be made returnable before the supreme court, or the 
 district court of the county, as may be ordered by the court or judge 
 allowing tbe same. In cases of misdemeanor, the order of suspension 
 of the execution of the sentence is only upon the defendant entering 
 into a recognizance with sufficient security to the acceptance of the 
 clerk of the court in which the sentence was rendered, in such sum as 
 may be specified in the allowance of writ, conditioned that he shall duly 
 prosecute the writ to effect, and surrender himself to the sheriff of the 
 proper county in case the judgment be not revarsed or a new trial ordered. 
 
 § 10. Upon hearing such case in error, the court shall order the pris- 
 oner to be discharged, or a new trial to be had, or appoint a day cer- 
 tain for the execution of the sentence, as the nature of the case may 
 require,' in case the judgment of the court below is confirmed. In 
 case the defendant has been committed to the penitentiary, and the 
 judgment has been reversed on error, by which he is entitled to his dis- 
 charge or a new trial, the clerk of the court reversing tbe judgment 
 ' shall forthwith certify the same to the warden of the penitentiary. Upon 
 the receipt of such certificate the warden shall immediately discharge 
 such defendant, in. case he is entitled to it ; but in case a new trial is 
 ordered, the warden shall forthwith cause the defendant to be taken to 
 the jail of the proper county, and committed to the custody of the sheriff 
 of the county in which the conviction was had, there to await his new 
 trial. 
 
 §11. Such are the provisions of the code as to writs of error; but 
 such writs, as liberally as they may be allowed, would be of but little 
 avail in the protection of the rights and liberties of the accused, without 
 also the privilege of a bill of e.\ccptions. We have seen how such bill 
 of exceptions is taken on the trial, and in that manner made a part of 
 the record. The code provides that in all criminal cases where the 
 defendant shall feel himself aggrieved by any opinion or decision^ of the 
 
 1 Code, ? 199-203. 
 
 2 Seo the code, J 156; see also, ante, ch. vii. J 43-45; also, ante, B. iii. cb. vii. 
 i 32-40. 
 
CHAP, viii.] ERROR, REVERSAL, AND PARDON 687 
 
 court, he may take his exceptions, which shall bo governed in the taking, 
 preparing, and in signing and sealing tlie bill, by the same rules as are 
 established in such matters in civil cases. Any such exception may be 
 thus brought up to be reviewed in error; and thus in all criminal cases 
 as well as in civil matters, not only are errors reviewed that may appear 
 in the record itself, but, by means of the bill of exceptions, any collateral 
 error occurring iu the trial, or on motion for a new triai, may be made 
 a part of the record, and reviewed upon the proceedings in error. 
 
 § 12. The student here will notice how our law, in conformity with 
 the principles of the common law, gives to the accused the final advan- 
 tage of his acquittal by the verdict of the jury, however erroneous it 
 may be; or in case his acquittal or discharge is produced by an erro- 
 neous opinion or order of the court upon the merits of the case, no writ 
 of error is allowed on the part of the State to reverse the judgment and 
 proceedings and put the accused on his trial again. But where he has 
 been discharged without a final judgment, because of a fatal objection 
 in the indictment, which would not support a judgment upon it, or by 
 any reason discharged without a trial, in any such case a new prosecu- 
 tion may be had, for by such erroneous proceedings he is not put in 
 jeopardy, and therefore no bar to a new prosecution. So, also, where 
 the judgment is reversed upon his writ of error on some technical 
 grounds or erroneous proceeding, which leaves the indictment good 
 so as to sustain a final judgment upon it in the case, he will be subject 
 to be tried again as upon a venire de novo. But no such proceedings 
 can be had on the part of the State to reverse a judgment which the 
 accused has had rendered in his favor, and be again put to a second 
 trial. 
 
 § 13. Our code, however, contains a singular provision for sustaining 
 a quasi proceeding in error, by which the prosecuting attorney may 
 take a bill of exceptions, and afterward present such exceptions to the 
 supreme court and apply for permission to file the same for the decision 
 of the court upon the points presented therein, but he must previously 
 have given reasonable notice to the judge who made the decision so 
 excepted to; and if the case is allowed to be filed, such judge shall 
 appoint some competent attorney to argue the case against the prosecu- 
 ting attorney, who is to be paid for his services a fee to be allowed by 
 the court, and paid out of the county treasury. But such proceeding 
 is not to affect the defendant in the original case ; and it is only to set- 
 tle the law upon the point raised by such bill of exceptions. The code 
 therefore directs, in case the supreme court should be of the opinion 
 that the questions presented should be decided, the court shall allow 
 the same to be. filed, and render judgment thereon. But the code is 
 careful in declaring that the judgment so rendered shall not be a rever- 
 sal or in any manner affect the judgment in which the exceptions were 
 
688 CRIMINAL LA W. [book iv. 
 
 taken ; but the decisiou of the supreme court shall determine the law 
 to govern in any similar case which may be pending at the time the 
 decision is made, or may thereafter arise in the State. So that the 
 defendant in the original proceedings has no interest in such reversal 
 of the judgment, nor retroactively affect any one ; it only settles the law 
 for future cases, — so careful is the code in preserving for the accused 
 whatever has been decided in his favor. 
 
 § 14. The jurisdiction of the State courts in allowing writs of error 
 in criminal cases has been thus demonstrated. The limited powers exer- 
 cised by the courts of the United States in cases of error, or as appel- 
 late courts, have already been treated of,' especially in their own courts. 
 But as the Supreme Court of the Union exercises some appellate juris- 
 diction in error to the State courts, it is interesting to know what, if any, 
 jurisdiction they will exercise by writs of error in criminal cases to the 
 State court. As we have seen, the original jurisdiction of the Supreme 
 Court of the United States is very limited ; and it assumes no appellate 
 jurisdiction, except what is expressly given it by Congress in pursu- 
 ance of the Constitution.^ But the 25th sect, of the Judiciary Act 
 gives the Supreme Court of the Union jurisdiction to issue writs of 
 error to the State court in certain cases, intended to preserve and secure 
 a uniform construction of the Constitution, laws, and treaties of the 
 United States,^ and to save them from being overridden by the State 
 courts. It is very obvious that such appellate jurisdiction is necessary 
 to preserve uniformity of decisions, and harmonize the operations of 
 the two governments ; it is therefore provided that writs of error may 
 issue on the final judgment or decree in any suit in the highest court 
 of law or equity of any State in which was drawn in question any 
 claim under the Constitution, laws, or treaties of the United States, and 
 the decision is against such claim. Under this provision repeated writs 
 of error have been issued from the Supreme Court of the United States 
 to the highest court of the State where a decision had been made against 
 such claim under the Constitution, or laws, or treaties of the United 
 States in civil cases. But it seems there is no such appellate jurisdic- 
 tion in criminal cases, though it would indeed appear strange if, when 
 such a claim is set up in a civil case, and it is decided against it, a writ 
 of error lies to the Supreme Court of the United States, but when the 
 same decision is made in a criminal case it is not to be allowed. 
 
 § 15. Before closing the subject of the appellate jurisdiction of the 
 State courts in criminal cases, it should be observed that no authority 
 
 ' As to the Supreme Court of U. S., see nnte, ch. iii. § 9-14; and as to the gen- 
 eral jurisdiction of the State courts, see same ch. g 15-24. 
 'Curtis's Oom. U. S. Courts, ? 112; 6 Cranch, 307-313. 
 » See I 25 of the Judiciary Act of 24th Sept., 1789. 
 
CHAP. VIII.] ERROR, REVERSAL, AND PARDON. 689 
 
 is given to the court of common pleas to allow a writ of error in crimi- 
 nal proceedings, and it is to be inferred that they are to exercise little 
 or no appellate jurisdiction in such cases. The code, however, con- 
 tains this provision: "Writs of certiorari may fee allowed, directed to 
 justices of the peace, to cause their proceedings in prosecutions for 
 offemses where the defendant is not recognized, or the decision of the 
 justice is final, to be brought before the court of common pleas, in order 
 that justice may be done,'" without giving any further direction as to 
 what manner such proceedings should be conducted. Certain it is that 
 veiy little of such jurisdiction is assumed in practice, being almost 
 exclusively confined to the district and supreme court. 
 
 II. WHAT EEEOKS AEE AVAILABLE IN CEIMINAL CASES. 
 
 § 16. Proceedings in error in criminal cases are based upon the same 
 principles as those in civil action, and therefore there can be no doubt 
 that there may be error in fact in criminal proceedings as well as in 
 civil ; as where the criminal proceedings were had without the accused 
 being before the court, though the record did not disclose that fact. 
 But error in fact assigned in criminal cases is very rare, or not to bo 
 found. Errors in law must appear in the record, either in the proceed- 
 ings of the court, or in those papers which must form portions of the 
 record in all cases, as the indictment, jury process, and the like ; or 
 having been brought into the record by means of a bill of exceptions. 
 
 § 17. A writ of error, according to our practice, is a writ issued from 
 a superior appellate court directed to an inferior court, requiring the 
 judges thereof to send up to the court above the record and proceedings 
 in the given case, so that the same may be inspected, and the errors 
 therein complained of, if any there be, may be corrected, and cause to be 
 done thereon what of right and according to law ought to be done It 
 is issued at the instance of any one affected by the judgment as party 
 or privy in blood or estate ; as the party himself, or his heir, or his 
 personal representative, or the vendee of his estate, who may be affected 
 or injured by the judgment. The parties to it, therefore, may be very 
 different from those in the court below; and it is in the nature of a new 
 suit or action, which may be brought at any time within the period 
 limited for that purpose, which is generally three or five years, and 
 frequently in criminal cases not limited at all. 
 
 §18. There are instances of judgments being reversed and held for 
 naught, without a writ of error, upon motion or collaterally, where the 
 proceedings on their face show such palpable error as the want of juris- 
 diction over the case or party,' or the cause of complaint as being no 
 
 Code, § 22L ' 4 Blackst, Com. 390. 
 
690 CRIMINAL LA W. [book it. 
 
 crime at all. In such palpable cases the judgment may be considered 
 as void, and the party or cause as being coram non judicise. But unless 
 it be a case of such gross and obvious error, after the final judgment 
 has been entered up, the only mode of relief to the party affected by it 
 vv'ill be by reversing or avoiding the judgment by a writ of error. 
 
 § 19. There is a writ of error, knovra to the practice, according to 
 the common law, as a v\rrit of error coram vobis, or coram, nobis, which 
 was a writ to enable the same court to correct its own errors which 
 might happen in a case before them previous to iinal judgment. Such 
 writ of error is not mentioned in our code, and it is not known that it 
 has been in use in this State for many years, if ever. In a case before 
 the Supreme Court of the United States,' they say that such writ of 
 error was attended with difficulty in practice, and was generally super- 
 seded by motion and affidavit to the court where the case was ponding 
 for leave to amend. Such writs were used for " error in the process or 
 through default of the clerk ; error in fact, as where the defendant, being 
 under age, sued by attorney ; or the party had died before verdict or 
 interlocutory judgment, and the iike."^ "If the error be in the judg- 
 ment itself, and not in the process, a writ of error does not lie in the 
 same court, but must be brought in another and superior court.'" 
 These writs of error were used in the same class of cases as writs of 
 error in fact. It is apprehended that according to the present practice, 
 both kinds of writs — writs of error coram vobis and writs of error in 
 fact — are superseded by motions to amend and set aside errors by 
 motion in the same court before the entry of the final judgment. 
 
 § 20. The general principles governing proceedings in error are, 
 that the final judgment of a court of competent jurisdiction is pre- 
 sumed to be right until the contrary is made to appear, and that it can- 
 not be reversed or annulled except upon such solemn adversary pro- 
 ceedings in error. And then the party plaintiff in error should be able 
 to point out some fatal error, inconsistent with justice, that is injurious 
 to him, apparent upon the face of the record ; for nothing will be list- 
 ened to as an error that does not come up to this, or is, as it is often 
 expressed, dehors tlie record. 
 
 § 21. Error may consist in the absence of something from the record 
 which should be there, in order to constitute its validity, as an essen- 
 tial part of the case. Thus, it may lack those essential matters or aver- 
 ments necessary to show that the court had jurisdiction of the case; or 
 that the accused had been before the court so as to give it jurisdiction 
 of the person ; or that it did show a cause of complaint known to 
 
 ' Pickett TO. Legerwood, 7 Peters's E. 144. 
 
 a Quoted from 1 Archibold's Prac. 234-276, etc. 
 
 ' Quoted from EoU's Abr. 749. 
 
CHAP, viii.] EBROE, REVERSAL, AND PARDON. 691 
 
 the law as a crime ; or that the verdict or judgment was defective or 
 insufficient; or that it did not show that the court performed some act 
 required by law as essentially necessary for the protection of the ac- 
 cused.^ So, on the other hand, the error may consist of something that 
 IS shown in the record which contains an affirmative evidence of error 
 in the process, verdict, or judgment. Thus, in a capital case, where 
 the accused was entitled to a special jury, and that the defendant de- 
 manded such a jury, but the court notwithstanding proceeded to a trial 
 and conviction with the common jury; or wiiere the verdict was 
 "guilty on the first count in the indictment," and no response to the 
 whole of the indictment ; or in case of larceny, should find the defend- 
 ant guilty, but neglect to find the value of the property stolen ; or the 
 court, in the judgment, sentence the defendant to the penitentiary in a 
 case which was only petit larceny. 
 
 § 22. The class of errors thus suggested are those which necessarily 
 belong, if not avoided, to every record; but there is another prolific 
 class of errors which do not necessarily belong to the record, unless 
 brought into it by a bill of exceptions ; as errors committed by the 
 court on questions as to the admission or exclusion of evidence, or ques- 
 tions on some collateral matter or interlocutory order. The decisions on 
 such questions are sometimes of vital importance to the defendant, 
 though they cannot appear in the record except by the aid of such bill 
 of exceptions. 
 
 § 23. In proceedings in error, certain rules have been established by 
 the courts as essentially necessary to the due administration of justice, 
 both for the protection of the accused, by means of such proceedings, 
 and for the prevention of such errors becoming means of the reversal of 
 judgments upon mere technical objections, not demanded for the pro- 
 tection of the innocent, or by the administration of justice. The most 
 obvious of these rules are : 
 
 § 24. 1. Writs of error are only allowable to examine and review 
 final judgments. While the case is in progress of litigation the case 
 may terminate favorably to the person who claims the error, and thereby 
 supersede the necessity or propriety of reviewing such errors. Besides, 
 while the matter is in fieri and the case lis pendens, the court, while 
 the same are pending, may still cure or avoid the objection, and obviate 
 the error.' C. J. Marshall, in delivering an opinion, illustrates this 
 matter by saying:' " Policy would forbid writs of error or appeals until 
 
 1 As where the conviction was had without the defendant being arraigned and 
 called upon to plead; or sentence and judgment, without calling on the defend- 
 ant if he had anything to say why judgment should not be pronounced against 
 him. 
 
 2 See Kinsley vs. State, 3 O. S. K. 508 ; also, Curtis's Cora. ? 177, 178. 
 
 3 See U. S. vs. Bailey, 9 Peters's E. 272 ; see, also, Curtis's Com. ? 194 and n. 2. 
 
692 CRIMINAL LAW. [book iv. 
 
 the judgment be final. If an interlocutory judgment or decree could 
 be brought to the court of error, the same case might again be brought 
 up after a final decision, and all the delay and expense incident to a 
 repeated revision of the same case be incurred." 
 
 § 25. As a further illustration, suppose a judgment reversed by the 
 district court upon error from the common pleas, and remanded back 
 to the court below upon an order for a venire de novo. It would seem 
 upon principles that no writ of error would be allowed, it is apprehended, 
 until the case is again disposed of upon final judgment upon the venire 
 de novo ; for on the new trial the plaintiff in error might be successful 
 and have nothing left to complain of; and besides, the supreme court, 
 by the allowance, might have the case up before them on the second 
 trial and judgment on the venire de novo} 
 
 § 26. 2. The error must be one that substantially affects the rights 
 of the party, and is injurious to the plaintiff in error. A person is not 
 permitted to sustain a writ of error to reverse a judgment in his own 
 favor, unless that judgment be in the way of his prosecuting some other 
 important right; nor is he permitted to complain of errors that are un- 
 important and not injurious to him. To justify the reversal of the judg- 
 ment, the record must afBrmatively show not only that the error inter- 
 venes, but that it was prejudicial to the pai-ty seeking to reverse it. 
 Error will not be presumed ; the plaintiff in error must point it out in 
 the record, and then satisfy the court that it is injurious to him.'' Thus, 
 where the record showed that the accused objected to certain questions 
 permitted to be asked by the prosecutor, but it did not appear whether 
 
 the answers were favorable or unfavorable to the plaintiff in error, 
 
 neither the answers nor their effect being stated, — it was held that the 
 judgment could not be reversed, for it was not shown that the accused 
 — plaintiff in error — was prejudiced by the admission of the questions 
 and answers. 
 
 § 2'7. So the admission of incompetent evidence, or matter irrelevant, 
 which clearly appears could not influence the jury, and did not mislead 
 or injure the plaintiff in error, is no ground for the reversal of the judg- 
 ment ;' and it is the same where the court mischarge the jury upon an 
 abstract question of law which could not arise in the case, nor mislead 
 or influence the jury.* But where it appears from the record that the 
 court misdirected the jury, or admitted illegal testimony material to the 
 issue, it is not necessary to the reversal of the judgment to show that 
 
 1 Curtis's Com. I 177 and n. 1, to page 225; see, also. The Chesapeake Canal 
 Co. vs. The Union Bank of Georgetown, 8 Pelers's E. 2o9. 
 
 2 See Scovern vs. State, 6 0. S. &. 288 ; also, Ohio Dig. page 302, I 472-474, 
 493-499 ; also, page 590, ^ 7, 10, 15, 18. 
 
 3 Ohio Dig. 301, § 469, 470, etc.; He-ss vs. State, 5 O. K. 5 ; 2 O. S. K. 167. 
 « Ohio Dig. 593, J 37-40; Stewart vs. State, 1 O. S. K. 06. 
 
CHAP. VIII.] ERROR, REVERSAL, AND PARDON. 693 
 
 the jury were in fact influenced by it, for where it was apparent that 
 it might have done so, the court in some instances will presume it.^ 
 
 § 28. 3. There are some essential matters connected with criminal 
 proceedings and law that cannot be dispensed with, and which, if the 
 record does not show that it has been observed, will be error ; as there 
 must be an indictment showing the cause and nature of the complaint ; 
 or that it did not show that it was found by the grand jury, and their 
 names ;- or that the party has been before the court; or that the con- 
 viction was obtained by the verdict of a regular jury f and it should 
 appear that they have responded in one way or another to the whole 
 indictment, or the whole they were sworn to try. These are such 
 essential matters connected with criminal trial and conviction that the 
 law will not tolerate a judgment where the record does not show that 
 they have been regarded and observed. 
 
 § 29. It may be proper here to notice the discrepancy there is in the 
 decisions of the court as to error where there are several counts, and 
 one or more of them good, and one or more of them bad, and there has 
 been a general verdict of guilty on the whole, followed by a general 
 judgment. In Ohio the uniform rule has been that a judgment on a 
 general verdict of guilty on an indictment containing some good and 
 some bad counts, is not erroneous, because not rendered with express 
 reference to the good counts.* This doctrine has been pretty generally 
 adopted in this country and also in England, until the decision in the 
 celebrated case against Daniel O'Connell and others in the House of 
 Lords. ^ In that case the doctrine that a general verdict and judgment 
 on an indictment in which there were counts, some good and others bad, 
 was good upon the presumption that the verdict and judgment were 
 wholly founded upon the good counts, was impugned as a presumption 
 unjust and untrue, and the judgment dependent upon it was reversed. 
 The opinion of Lord Denman in the case is masterly and unanswerable, 
 and leaves the old doctrine palpably contrary to that humane principle 
 which pervades the criminal law at the present time, which presumes 
 nothing against the accused, but requires every step against him not 
 only to be probably true, but to be proved to be true. But the old 
 doctrine appears to be so permanently fixed in the United States that 
 there is but little hope that it will be here reformed and made consist- 
 ent with the other humane principles of modern criminal law. 
 
 1 Ohio Dig. 695, I 64-66 ; Lowe vs. Lehman, 15 0. S. E. 179. 
 
 ' Mahan vs. State, 10 O. E. 232. " Work vs. State, 2 0. S. E. 296. 
 
 <See Boose vs. State, 10 0. S. E. 575; Eobbins vs. State, 8 0. S. E. 131 ; see, 
 also, 6 0. E. 19; 7 O. E. pt. ii. 240; Ohio Dig. 281, ? 267, 268; Buck vs. State, 
 1 O. S. E. 15. 
 
 6 E. vs. O'Connell, 11 Clark & Fin. 15, in 1844. This case is well abridged 
 in 2 Wharton's Cr. Law, ? 3047, n. (c). 
 
694 CRUIINAL LA W. [book it. 
 
 § 30. 4. Error may be assigned in that the court refused to give 
 proper instructions to the jury, when asked, or that the court erred iu 
 the instructions they did give. The court are bound to give the jury 
 all pertinent and appropriate instructions when asked; and whether 
 asked or not, all relevant instructions given are bound to be correct and 
 in accordance with law, or it may be assigned for error. Upon the 
 theory of the law, the court are bound to lay down the law, and give 
 all necessary and appropriate instructions to the jury, and the jury are 
 bound to receive it as the law ; but if the court in so doing should err 
 or misinstruct, it may be assigned for error. But on the other hand, 
 all matters of fact are questions to be determined entirely by the jury, 
 and any interference on the part of the court with this province of the 
 jury would be error. 
 
 § 31. Thus, it was held to be error in the court to charge the jury 
 that the evidence of an accomplice was corroborated by other testimony, 
 for the question whether it was corroborated or not, was a matter en- 
 tirely for the jury.' So in a case where the accused was charged with 
 having stolen the property of C & W, as partners ; on the trial there 
 was some evidence tending to show that W was, at the time of their 
 purchasing the property, incapable of contracting, and therefore the 
 court was asked to charge the jury that if W was so incapable then the 
 property should have been charged as that of C alone, and was improp- 
 erly charged in the indictnient as that of both. This instruction the 
 court refused,^ but charged the jury that the evidence given was, iu the 
 opinion of the court, sufficient to prove the partnership. It was held 
 that in so refusing to charge upon the legal proposition, and in under- 
 taking to determine the question of fact for the jury, there was error. 
 
 § 32. 5. That cannot be assigned for error which it appears the party 
 has waived, or which may be fairly presumed from the circumstances 
 to have been waived. There is a greater strictness of evidence of the 
 waiver of a right or privilege in criminal than in civil cases, and the 
 circumstances from which such waiver might be presumed should be 
 strong ; but there are certain important rights and privileges granted to 
 all as essential to secure the due administration to all, that cannot be 
 waived in criminal cases ; as the indictment cannot be waived, or the 
 trial by jury cannot be waived, except by pleading guilty. But where 
 there are certain privileges to a certain class that cannot be demanded 
 by all, there such privileges may be waived, and from circumstances 
 of strong implication may be presumed to be so waived. 
 
 § 33. Thus, where the accused in a penitentiary offense was entitled 
 to be " furnished with a copy of the indictment at least twelve hours 
 before trial," but was placed on trial without such copy, but made 
 
 1 Noland vs. State, 19 0. E. 131. « Lewis vs. State, 4 0. E. 389. 
 
CHAP. VIII.] ERROR, BEVEBSAL, AND PARDON. 695 
 
 no objection for that cause until after verdict, it was held thp,t the ob- 
 jection was waived.' But where a party was entitled to a struck jury, 
 in a case where the indictment had been recently returned to court, and 
 on the day of trial, but before the trial, the defendant demanded a struck 
 jury, which was refused by the court, and the defendant was obliged 
 to go to trial before the common jury, on error, there being nothing on 
 the record to show how long a time had elapsed between the presenta- 
 tion of the indictment and the demand of a struck jury, it was held that 
 upon the record the defendant had not waived his right to a special jury 
 by any apparent unreasonable delay in making the demand, and that 
 the refusal must be deemed an error.'' But in criminal as in civil cases, 
 objections to the admissibility of evidence must be made at the time of 
 the trial, or it will be considered waived, and will be no ground of error. 
 
 § 34. 6. The refusal of that which rests in the sound discretion of 
 the court, cannot be assigned for error. When any matter is a subject 
 of pure discretion, it is difficult, if not impossible, to make it a subject 
 of error, without showing that the discretion has been abused, and 
 abused to the injury of the plaintiff in error. Such is the character, in 
 most cases, of motions for a continuance, or a new trial, or a separate 
 trial, or to compel the prosecutor to elect which of several counts to 
 prosecute.' 
 
 § 35. In matters of this kind, in the conduct of a trial, much must 
 rest in the discretion of the court of original jurisdiction. If the error 
 complained of interfered with no vested right or positive rule of law, and 
 merely affected the mode or manner by which to arrive at a decision and 
 determination of the case, and not the rights or merits of the case, it is 
 generally considered a matter of practice within the discretion of the 
 court, and will not be a subject of error, unless it clearly appears, from 
 all the facts and circumstances developed in the case, that there has 
 been an abuse of discretion, operating to the prtjudice of the party in 
 the final termination of the case.* | 
 
 36. In connection with the subjects just passed upon, it will be well 
 again to take some notice of bills of exceptions. Under the English 
 nisi prius system, where one of the judges of the superior courts sits 
 at the trial of the case, and reserves difficult questions to be settled in the 
 court in banc, the necessity of a bill of exceptions is not so strikingly 
 felt- but however that may be, in cases of treason and felony, bills of 
 exceptions are not at all allowed, and in minor offenses are of but rare 
 occurrence. But here, in our system, where our court of common pleas 
 has original jurisdiction of all important criminal matters, without any 
 
 I Smith vs. State, 8 0. K. 291. ^ Whitehead vs. State, 10 O. S. E. 449. 
 
 3 4 0. S. E. 440 ; 6 0. E. 86 ; 10 0. S. E. 449 ; 15 O. E. 72. 
 * See Ohio Dig. 592, ? 33-35; 11 0. S. E. 114 and G91. 
 
696 CRIMINAL LAW. [book iv. 
 
 of the nisi prius system, by which the judge could immediately take up 
 difiScult questions to the higher courts to be settled there, the bill of 
 exceptions becomes a matter of vital importance in criminal matters ; 
 and they afford the only means by which decisions upon motions, and 
 the instructions and rulings of the court, could be carried into the record 
 and made the grounds of proceedings in error and review by the supe- 
 rior courts. For these reasons, as well as the demands of the due 
 administration of justice, by our code and practice bills of exceptions 
 are amply protected even in criminal cases. The code provides for a 
 bill of exceptions " where the ground of exception is that the verdict 
 is not sustained by sufficient evidence, or is contrary to law, and the 
 court has overruled a motion for a new trial made on that ground, the 
 bill of exceptions shall set out the evidence.'" , 
 
 § 37. The cases where bills of exceptions may be thus taken, bring- 
 ing into the record matters which would not otherwise appear there, 
 for the purpose of review in error, may be classed thus: — 1, the admis- 
 sion or rejection of evidence improperly ; 2, the instructions to the jury 
 improperly given or refused, or erroneous ruling of the law of the case ; 
 3, refusing a continuance of the case; or 4, refusing to grant a new 
 trial. The first two, when properly stated in the bill, are matters of 
 positive law, and the decision of the court involved in them must be in 
 accordance with law, or it will be error. The last two classes are 
 those cases which are to be decided by the court in accordance with 
 sound discretion. In all these cases the bill of exceptions should be 
 drawn up with great care, embodying all the facts and circumstances 
 of the case necessary to show the error in the opinion of the court, but 
 also to show that it is prejudicial and injurious to the party. What 
 was already a part of the record need not be stated, and therefore a bill 
 of exceptions in relation to the admission or rejection of evidence is the 
 most simple, for when the proposed evidence is rejected, or the evidence 
 actually given and admitted is. correctly stated, usually the court will 
 see from the record of the case whether the evidence was relevant, and 
 whether the party was prejudiced or injured by it. But in those cases 
 where the decision is dependent upon the discretion of the court, much 
 more is needed ; the bill must embody all the facts and circumstances 
 necessary to show that the party is prejudiced and injured by the deci- 
 sion, and state all the evidence given in the case, or the point in ques- 
 tion, and state that it is all the evidence, so as to exclude the conclu- 
 sion that the decision might be justified by other evidence in the case ; 
 and also must show that the decision of the court upon the subject was 
 unsound, and an abuse of this discretion. 
 
 § 38. In reference to these cases, and especially in reference to new 
 
 > Code, § 156. 
 
CHAP, viir.] ERROR, REVERSAL, AND PABDON. 697 
 
 trials and continuances, the supreme court have said that as our law 
 permits bills of exceptions and proceedings in error in these cases, the 
 range of action in reference to such matters is undoubtedly enlarged. 
 But it must appear that there has been an abuse of discretion resulting 
 in injustice. A difference of opinion would not be sufficient ; the ap- 
 pellate court must be able to say that what was done was not only 
 improper, but that it operated unjustly and injuriously to the party. ^ 
 And in reference to a decision on a motion for a continuance, further 
 said : its action cannot be reviewed on error unless it clearly appears 
 that there has been an abuse of discretion operating to the prejudice of 
 the party. When the evidence in the case is not set out so as to enable 
 the appellate court to say that there has been such abuse of discretion 
 and prejudice to the party, it will not interfere.'' 
 
 § 39. Another interesting question as to proceedings in error is this : 
 in civil proceedings it is settled that if a party in a case demurs or 
 pleads, and it is decided agarinst him, if he abandons such pleading and 
 amends, he waives the objection of the decision against him. If he 
 wishes to pursue in error the decision made against him, he must do 
 so without abandoning his first pleading by an amendment, and plead- 
 ing anew. Now, how is this in criminal cases ? The theory of the 
 matter in criminal cases is very different from that in civil cases ; for in 
 criminal cases all decisions made against the accused upon pleadings, 
 until it is put on the plea of not guilty, are in the nature of a judgment 
 of respondeat ouster. Now, suppose the accused has pleaded a plea 
 in bar, and the prosecuting attorney demurs to it, and the question on 
 such demurrer is decided against him, — by our practice and code he is 
 still entitled and bound to plead the general issue — not guilty. If upon 
 the plea of not guilty he be convicted, can he maintain error upon the 
 decision upon the demurrer to the plea in bar? or is he to be considered 
 to have waived his former position and abandoned his plea in bar, or 
 any other like positions, by pleading anew by his plea of not guilty ? 
 It is apprehended not ; and that after such conviction he may have a 
 writ of error on the question of the decision of the demurrer against 
 him, and if that decision was wrong, have the judgment reversed ; and, 
 of course, if his plea in bar be sustained, he must go acquit, unless the 
 prosecuting attorney can obtain leave to withdraw the demurrer and 
 take issue on the plea. 
 
 III. REVEESAL OP A JUDGMENT. 
 
 § 40. Cases in error come on to a hearing as other cases, upon the 
 issue between the parties. It is in the nature of a new action, and the 
 
 > Gandolfo vs. State, 11 0. S. B. 114. ' Holt ta. Sta.te, 11 0. S. K. 691. 
 
698 CRIMINAL LA JF. [book it. 
 
 plaintiff in error is bound to assig-n errors in the judgment and proceed- 
 ings, which is like his declaration ; and if he neglects in due time to 
 assign errors, his writ may be dismissed for want of prosecution. To 
 the assignment of errors the counsel for the State must plead, which 
 plea is generally that there are no errors, — in nulo est erratum,. The 
 court then, as in cases upon demurrer, will hear the case argued ; and 
 in deciding the case will notice no error except such as have been as- 
 signed, unless there be some glaring and important error that may have 
 been overlooked, and then they only do so ex gratia. 
 
 § 41. The judgment of the court upon the final determination of a 
 case in error is, that the judgment of the court below be affirmed, or 
 that it be reversed, or that it be affirmed in part and reversed in part. 
 On reversal, if that be on account of error in the conviction, the case is 
 sent back»to the court below with a mandate to proceed to a new trial, 
 as in a case of a venire de novo. But if the verdict be good, and the 
 error was in the judgment rendered on the verdict, the rule then is, that 
 the appellate court render such judgment as the court below should 
 have rendered, which judgment would be accordingly carried into exe- 
 cution. When the judgment has been affirmed, the code provides that 
 in capital cases the court shall fix a day certain for the execution, and 
 in all cases a mandate is sent back to the court below to carry the judg- 
 ment into execution. 
 
 § 42. On reversal, if the error lay at the foundation of the prosecu- 
 tion, so that there is no further prosecution to be had, as in a case where 
 the court should decide that the offense charged was not a crime, the 
 defendant will be discharged from his imprisonment, whether in jail or 
 penitentiary ; if the judgment was for the payment of a penalty, or any 
 other matter, he is totally discharged from that. But where the rever- 
 sal leaves the prosecution valid against the defendant, he is held bound 
 to stand his new trial ; and he cannot plead any partial punishment 
 under the former judgment in bar of his new trial. As that proceed- 
 ing was erroneous, it is not considered a case where he has so been put 
 in jeopardj as will make it a bar to the new prosecution and trial. 
 
 IV. PAEDON AND ITS INCIDENTS. 
 
 § 43. When the convicted finds that every proceeding in arrest or 
 reversal of the judgment against him has failed to afford him any relief, 
 his only and last resort is a pardon or a reprieve. The former is a 
 total dispensation, forgiveness, and exoneration from the consequences 
 of the conviction and the crime itself; but the latter is only a tempo- 
 rary suspension of the judgment, or a temporary or conditional pardon. 
 
 § 44. It was thought by Blackstone that the capacity of a monarch to 
 grant pardons in meritorious cases was one of the advantages that a 
 
CHAP. VIII.] ERBOB, REVERSAL, AND PABDON. 699 
 
 monarchical government possessed over that of a republic. But the 
 experience of the government of the United States and that of the sev- 
 eral States has since demonstrated that this subject was as well adapted 
 to the condition of a republic, and as well controlled by it, as that of a 
 monarchy. The pardoning power is granted by the several Constitu- 
 tions of the United States and of the State of Ohio, to the President of 
 the United States and also to the Governor of Ohio ; and the same power 
 is confided to the executives of all the States. The President has 
 "power^ to grant reprieves and pardons for offenses against the United 
 States, except in eases of impeachment." The governor has "power,^ 
 after conviction, to grant reprieves, commutations, and pardons for all 
 crimes and offenses, except treason and cases of impeachment, upon 
 such conditions as he may thinli proper, subject to such regulations as 
 to the manner of applying for pardons as may be prescribed by law." 
 
 § 45. The code- prescribes the mode and manner of applying to the 
 governor for a pardon';' it requires the applicant to produce to the gov- 
 ernor, with his application, due evidence of his having given notice by 
 publication in a newspaper of general circulation in the county, at least 
 for three consecutive weeks previous to his application, stating in full 
 his intended application for a pardon of the crime for which he stands 
 convicted; and also give notice to the prosecuting attorney of the county 
 in which the couviction was had, who is to make out and forward to 
 the governor a statement of the case, as to the trial and conviction, and 
 also briefly state any circumstances in aggravation or extenuation, if any 
 there be, — this formality being required to prevent fraud and imposition. 
 It will be noticed that the President, in relation to crimes against the 
 United States, has full power to grant pardons before, as well as after, 
 conviction ; but the governor is limited to the granting pardon after 
 conviction. In each case, respectively, they have the same authority 
 to grant reprieves as that of pardons. 
 
 § 46. Reprieves may be looked upon as incident to the pardoning 
 power, for pardons may be limited and conditioned as the pardoning 
 power chooses to make them. But exigencies frequently happen re- 
 quiring the exercise of the power of granting reprieves on account of 
 some event requiring the stay of the execution, on various accounts ; 
 as the insanity of the convict, or the pregnancy of a female convict,* 
 or the occurrence of some fact that may give claim for time to apply for 
 a pardon, and the like occasions. 
 
 8 4t. It is said " there may be a reprieve ex arbitrio judicis, either 
 before or after judgment; as where the judge is not satisfied with the 
 verdict, or the evidence is suspicious, or the indictment is insufficient, 
 
 > Const. U. S. art. ii. § 2. » Const. Ohio, art. iii. ? 11. 
 
 » Code, 2 217-219. * See the code, J 187-191. 
 
700 CRIMINAL LAW. [book it. 
 
 or, sometimes, if any favorable circumstances appear in the criminal's 
 character, in order to give time to apply for an absolute or conditional 
 pardon. These arbitrary reprieves may be granted or taken off by the 
 justices of ^aiZ delivery, although their session be finished; but this 
 rather by common usage than of strict right.'" And it is apprehended 
 that it is a sound principle of law in either a civil or criminal case for 
 the judge of the court that has rendered a judgment, upon the hearing 
 any event that in justice and equity required the interference, to order 
 a stay of the execution until the matter could be properly heard. 
 
 § 48. In some cases where reprieves would be proper or necessary, 
 special provisions of the statute supersede their necessity ; as in ordi- 
 nary cases, where insanity intervenes, the probate judge is authorized 
 to hold an inquest, and give orders in the matter as the case may re- 
 quire ; but after the conviction, the case is subject to the order of the 
 governor.' In capital cases, however, after conviction, the judge of the 
 court of common pleas of the judicial district is required to interfere 
 under the code,' and, by means of a jury, hold an inquest. At the 
 termination of a reprieve, the judgment and execution are alwaj's liable 
 to be carried into effect. 
 
 § 49. Pardon is an act of grace coming from the executive of the 
 State, and it is the exercise of one of the great constitutional powers 
 and authority well known to our Constitution and laws, both statute and 
 common. Its effect is to restore the pardoned person to all his former 
 rights and privileges, and to absolve him from all the consequences of 
 the conviction and judgment. He is restored from the consequences 
 and infamy of the conviction to his original standing and character, so 
 that if by the conviction he were rendered an incompetent witness, 
 elector, etc., he is by the pardon restored to all these rights and privi- 
 leges as though no conviction was had or crime committed. Where the 
 disability was in consequence of the enactraexit of a statute declaring 
 the disability to be the consequence of the conviction, some contend that 
 a pardon does not restore against such statutory disability ;' but it 
 would appear that such opinion is contrary to principles and logical con- 
 sequences. 
 
 § 50. A pardon, in order to be available, must be evidenced by an 
 executive act having in its execution the solemnity of a patent, — under 
 the seal of the government, etc. And then, it must have a certainty as 
 to its identity of person, conviction, and crime, and be subject to the 
 same construction as a grant, and subject to the same consequences as 
 to its execution, delivery, acceptance, and of its having been obtained 
 
 1 See 4 Stephens's Com. 459 ; 4 BLickst. Com. 404. » Code, 2 18:. 
 
 s 1 S. & C. Eev. Stat. 849, § 52-54, Act of April 7, 1856. 
 * See Wharton's Cr. Law, g 765. 
 
CHAP, viii.] ERROR, REVERSAL, AND PARDON. 701 
 
 by fraud. It raay also be on conditions and terms as a conveyance, 
 especially such as may be connected with the conviction.' 
 
 § 51. It has been said that a pardon restores the convict to his rights 
 and privileges as though he had not been convicted. But this is only 
 true where the pardon is unconditional, and such restoration not incon- 
 sistent with the terms of the pardon. The pardon may be only as to a 
 part of the sentence, or a part of the penalty or punishment ; if so, it 
 of course leaves him a convict as to the residue. Where any of the 
 punishment or consequences of the conviction or commission of the 
 crime remains unremitted by the pardon, it is incomplete, and cannot 
 have the effect of eflfacing the taint any further than the pardon extends. 
 It is also said that a pardon is like a deed, and must be delivered and 
 accepted in order to secure its validity. But its acceptance should be 
 presumed where the probability is not shown to the contrary, as in the 
 case of a deed to an infant. 
 
 § 52. Here our analysis of the law must close, hoping that the dili- 
 gent student may derive some benefit from it in the commencement of 
 his arduous study, and that he may be aided and enlightened on his 
 difficult way by its thorough perusal. 
 
 > U. S. vs. Wilson, 7 Peters's U. S. E. 150, 
 
INDEX. 
 
 Abatement of nuisance, 371. 
 
 pleas in, 441. 
 Abolition, 122. 
 Absolute rights, 125. 
 Abstract of title, 218. 
 Acceptance of bills, 303. 
 Accessory, 553, 554. 
 Accession, property by, 129. 
 Accident, 652. 
 
 relief against, 526. 
 Accomplice, 553. 
 Accord, 372. 
 Account, 527. 
 Acquittal, 681. 
 Actions in general, 397, 418. 
 
 under the code, 402. 
 
 different kinds of, 398. 
 
 on contracts and torts, 401. 
 
 limitation of, 408. 
 
 parties to, 411. 
 
 joinder and election of, 415. 
 
 proceedings in, 417. 
 Acts of God, 286,296. 
 
 judicial and executive, 376. 
 
 of Congress, 61, 386, 564. 
 
 of legislature, 88. 
 Administration, 248. 
 
 duties of, 250. 
 
 sale of land by, 252. 
 
 distribution, 252. 
 Admiralty, powers of, etc., 386. 
 Adoption of a child, 350. 
 Adultery, 577. 
 Advancement, 253, 255. 
 Affinity, 199. 
 Affirmation, 665. 
 Affray, 571. 
 Age, different periods, 351. 
 
 for crime, 551. 
 
 of majority, 352. 
 Agent, 320, 360. 
 Agreed case, 497. 
 
 Agreement. See Contract and Mar- 
 riage. 
 Alibi, proof of, 669. 
 Alienation by deed, 208, 209. 
 
 by forfeiture, 205. 
 Aliens, 120. 
 
 naturalized, 121. 
 Alimony, 407. 
 Allegiance, 120. 
 
 Allodial property, 134. 
 
 Ambassadors, 386. 
 
 Amendment. See Pleadings and Jeo- 
 
 in criminal proceedings, 678. 
 Amercements, 393. 
 Ancestor, 296. 
 Ancestral estate, 196. 
 Animals, property in, 234. 
 Annuities, 138, 306. 
 Answer, 450. See Pleadings. 
 Appeal and appellate proceedings, 501, 
 506, 509, 683. 
 
 courts, 383, 603, 688. 
 Appearance in civil cases, 395, 419. 
 
 in criminal cases, 668. 
 Appendant. See Common. 
 Appointment of assignee, 308. 
 
 under a power, 227, 320. 
 Apprehension of offenders, 607. 
 Apprentices, 358. 
 
 complaint of, 360. 
 Appropriation, 110. 
 Arbitration, 372, 483. 
 Aristocracy, government of, 38. 
 Armies, 67. 
 Arrest by a warrant, 607. 
 
 without a, 607. 
 
 for a debt, 423, 426. 
 
 malicious, 370, 399. 
 
 obstructing of, 569. 
 
 of judgment, 494, 677. 
 Arson, 582. 
 Articles of peace, 606. 
 Assault, 370. 
 
 Assemblies unlawful, 570. 
 Assets, 250. 
 Assignment, 209, 239, 307. 
 
 for creditors, 308. 
 
 of choses in action, 308. 
 
 new, in pleading, 447. 
 
 of dower, 403. 
 
 of errors, 698. 
 
 in bankruptcy, 139. 
 Assumpsit. See Actions. 
 Attachment, against witnesses, 463. 
 
 for contempt, 892, 393. 
 
 process against debtors, 405, 421. 
 Attempt to murder, 549. 
 
 to ravish, 549 
 
 to rob, 549. 
 
 (703) 
 
704 
 
 INDEX. 
 
 Attorney-general, TT. S., 70. 
 Attorneys, 25, 75, 392. 
 
 State of Ohio, 92, 96. 
 Audita querela, 502. 
 Average loss. See Insurance. 
 Award, 373. 
 
 Backing warrant, 422. 
 Bail', excessive, 114. 
 
 in civil cases, 423, 426. 
 
 in criminal cases, 114, 612, 622. 
 
 in error, 507, 508. 
 
 in replevin, 399, 427. 
 
 to the sheriff, 626. 
 Bailment, 284. 
 Banishment only as condition of pardon, 
 
 700. 
 Bank emhezzlement, 589. 
 Bankruptcy, 139. 
 
 Banks, public and private. See Corpo- 
 ration. 
 Bar of dower, 148. 
 
 pleas in, 441, 442. 
 Bargain and sale of land, 513, 
 
 of personalty, 274. 
 Bastard, 349. 
 
 Bastardy, trial of, 350, 407. 
 Battery, 128. 
 Beasts of forest, 587. 
 Behavior, security for, 606. 
 Benevolent institutions, 362. 
 Bequest, 242. 
 Bill in chancery. See Equity. 
 
 of peace and interpleader, 528. 
 
 of exchange, 302. 
 
 of exceptions, 491, 679, 684, 686, 
 695, 696. 
 Blasphemy, 575. 
 Body corporate, 112, 360. 
 Breach of contract, 271, 281. 
 
 of close. See Trespass. 
 
 of the peace, 570. 
 Breaking into house, 584. 
 Bribery in election and of judge, 569. 
 Bridge destroying, 583. 
 Burglary, 583. 
 Burning. See Arson. 
 By-laws of corporation, 364. 
 
 Cabinet, members and council, 70. 
 Calling the plaintiff, 499. 
 Canals, injury to, 574. 
 Canceling deed and letters patent, 529, 
 530. 
 wills, 227, 246. 
 Canon law, 42, 43, 544. 
 Capias ad satisfaciendum, 510. 
 Capital punishment, 681. 
 Carriers, 259. 
 Casual affray, 571. 
 Cattle, 234. 
 Caveat emptor, 277. 
 Certiorari, writ of, 502, 689. 
 Challenge of jury, 486, 628. 
 
 Chancery, 499, 524. 
 
 court. See Equity. 
 Charitable trusts, 533. 
 Chattels, 152, 232. 
 
 incorporeal, 233. 
 
 personal, 232. 
 
 real, 145, 152. 
 Cheating, 573. 
 Chief justice, 72, 101. 
 Child and parent, law of, 346. 
 Chose in action, 235. 
 Christian religion, 675. 
 Church, burglary in, 583. 
 
 larceny from, 584. 
 Circumstantial evidence, 472. 
 Citizen, 120. 
 Civil law, 368, 430. See Preface. 
 
 liberty, 125. 
 Clerk of court, 391. 
 
 Code, civil, 401, 412, 414, 416, 420, 450, 
 539. 
 
 provisional remedies, 426. 
 
 evidence under, 477, 647. 
 
 error in, 506, 508, 686. 
 
 criminal, 606, 683. 
 
 error in, 656, 689-698. 
 Codicil, 246. 
 
 Coin, offenses relating to, 566. 
 College. See Education. 
 Combination, illegal, 570. 
 Commission to take depositions, 653. 
 
 to prove will, 224. 
 Commitment, 611. 
 Common law, 41, 43, 396, 430, 544. 
 
 jury, 487, 627. 
 
 pleas, lOl. 
 
 tenant in, 189. 
 Condition, breach, 166. 
 
 impossible, 167. 
 Conditional estate, 134-141, 167. 
 
 deed, 167. See Deed. 
 Conditional fee, 142. 
 
 pardon, 700. 
 Confession and avoidance, 430, 442, 444, 
 
 447. 
 Confession of goods, 240, 525. 
 Congress, 57. 
 Consanguinity, 198. 
 Conscience, rights of, 128. 
 Conservators of the peace, 606, 607. 
 Consideration, 238, 260. 
 Consignee, 279. 
 Conspiracy, 558, 570. 
 Constable, 607. 
 Constitution, 50, 53, 896. 
 Construction, contracts and deeds, 282. 
 
 of statutes, 64, 98. 
 
 of wills, 245. 
 Contingent interest, 209. See Assign- 
 ment. 
 
 remainders, 184. 
 Continuance, 488, 498. 
 Contract, 239, 255, 259. 
 
 performance of. 266. 
 
INDEX. 
 
 705 
 
 Contract, breach of, 271, 281. 
 
 enforcing of, 270. 
 
 for labor, 280. 
 
 by deed, 256. 
 Conveyance at common law, 219. 
 
 by deed, 208. 
 Coparcenary, 189. 
 Copyright, 237. 
 Coroner, 96. 
 Corporation, 112, 360. 
 
 how created, 361. 
 
 alienation by, 367. 
 
 how dissolved, 366. 
 
 municipal, 112. 
 Corporeal hereditaments, 140. 
 Costs, 500, 541. 
 Counsel. See Attorneys for Prisoner, 
 
 626, 684. 
 Counterfeiting, 588. 
 Counties, 112. 
 
 corporate, 96, 112. 
 
 meeting of, 43, 51. 
 Counts in pleading, 415, 452. 
 Court, 380, 590. 
 
 of TJ. S., 74,86. 
 
 of the State, 98, 389. 
 
 how organized, 390. 
 
 mode of proceeding, 394. 
 Counter-claim, 452. 
 Covenant, action of, 399. 
 
 in conveyance, 222. See Deed. 
 
 real, 413. 
 Coverture. See Marriage. 
 Creditors and debtors. See Attachments 
 
 and Assignments, 307. 
 Crimes, 543, 547, 555. 
 
 division of, 656. 
 
 persons who may commit, 543, 549. 
 
 by laws of Congress, 564. 
 
 as to State and U. S., 562. 
 Curing defects by pleading, 495. 
 
 by verdict, 495. 
 
 in criminal cases, 693. 
 Curtesy, tenant by the, 146, 339. 
 Custody of lunatics, etc. See Guardian. 
 Custom, 240, 285. 
 
 Damages, 282, 543. 
 
 liquidation, 283. 
 Days of grace. See Negotiable Paper. 
 Debt, State, 117. 
 
 action of, 399. 
 Declaration. See Pleading. 
 Decrees in equity, 538. 
 Deeds, etc., 208. 
 
 title by, 205. 
 
 record of, 217. 
 
 of feme covert, 215, 338. 
 Defamation, 370. 
 Default, judgment by, 431. 
 Defeasance, deed of, 168, 219. 
 Defense of self, etc., 371. 
 Delegates, 44, 52. 
 Delivery of deed, etc., 215. 
 
 Democracy, 38. 
 
 Demurrer, 437. 
 
 general and special, 438. 
 
 to evidence, 491. 
 Denizen, 123. 
 Deposition, 478, 653. 
 Descent, 194. 
 
 rules of, 195. 
 Detinue, action of, 399. 
 Devise, 224. 
 
 executory, 229. 
 Dilatory pleas, 440. 
 Diligence, 286. 
 Directory part of the law, 91. 
 Disclaimer of title, 528. 
 Discontinuance. See Nonsuit. 
 Discovery, 438, 439. 
 
 in equity, 525. 
 Discretion of a judge, 695-7. 
 Disseisin, 370, 398. 
 Dissolution of partnership, 329, 366. 
 Distress, none for rent in Ohio, 159. 
 Distribution of residuum, 253. 
 District and counties, 43, 96, 112. 
 Disturbance of ways, etc., 574. 
 Dividend, 308. 
 
 Divorce and alimony, 344, 407. 
 Documents, 466. 
 Domestic relation, 334. 
 Domestics and servants, 358. 
 Domicile, 243. 
 
 Dormant partner, 326, 516, 520. 
 Dower, 147, 404. 
 
 assignment of, 403. 
 Drunkenness, 550. 
 Duress, 552. 
 Dwelling-house, 582. 
 
 breaking into, etc., 583. 
 
 Earnest, 276. 
 
 Easement, 137. 
 
 Education, etc., 113. 
 
 Ejectment, 398. 
 
 Election, 65, 92. 
 
 Electors, qualification of, 122. 
 
 Eleemosynary corporation, 362. 
 
 Elopement, 148, 342. 
 
 Embezzling, 589. 
 
 Emblements, 160. 
 
 Enemies, 558. 
 
 Entailment, 142, 144. 
 
 Entry, forcible, 571. 
 
 right of, 248. 
 Equitable estates, 175. 
 
 proceedings. See Equity. 
 Equity, 175, 236, 338, 521. 
 
 subjects of, 526. 
 
 proceedings in, 533. 
 
 under the code, 539. 
 
 of the statute, 522. 
 
 of redemption, 171. 
 Error and appellate proceedings, 501, 
 506. 
 
 writ of, 503. 
 
 45 
 
706 
 
 INDEX. 
 
 Error in criminal cases, 683, 684, 697, 
 698. 
 
 in U. -S. courts, 688. 
 
 rules in, 689, 691, 693-698. 
 Escape, 511. 
 Escheat, 204. 
 Estate, freehold, 139. 
 
 not of inheritance, 143, 155. 
 
 upon condition, 164. 
 
 tail conditional fee, 142. 
 
 as to possession and tenants, 179, 
 189. 
 
 ancestral, 196. 
 
 in reversion, 180-4. 
 Estoppel, 484. 
 Estovers, 145, 158. 
 Estrays, 237. 
 Evidence, 456, 647. 
 
 hest must be had, 459, 648. 
 
 res inter alios, 461, 649. 
 
 witnesses, 463, 653. 
 
 documents, 466. 
 
 demurrer to, 491, 660. 
 
 iiearsay, 461, 649. 
 
 positive and presumptive, 470. 
 
 circumstantial, 472, 661. 
 
 application of, 473. 
 
 under the code, 477, 657. 
 
 bill of exceptions. See Bill. 
 Ex contractu, action, 398. 
 Ex delicto, action, 398. 
 Ex post facto, 63, 547. 
 Exchange of property, 274. 
 
 bills of, 302. 
 Excusable homicide, 553. 
 Executed contract, 259, 267. 
 
 consideration, 261. 
 
 remainder, 184. 
 Execution, 510, 682. 
 
 proceedings in aid of, 511. 
 
 in criminal cases, 682. 
 Executive and legislative, 57, 84. 
 
 of U. S., 65. 
 
 of State, 92. 
 Executor, 249. 
 
 duties of, 250. 
 Executory devises, 229. 
 
 trusts, 174. 
 
 Facts in pleading, 432. 
 Falsi crimen, 65). 
 Fear, putting in, 588. 
 Fee-simple and conditional, 134, 141, 
 142. 
 
 -tail, 142. 
 Felony, 543, 546, n. 
 
 compounding of, 265. 
 Feme covert, 337. 
 Feudal svstem, 132, 142. 
 Fiction, 4S4. 
 Final decree and judgment, 498, 506, 
 
 691. 
 Fine, 682. 
 Fines, punishment by, 547. 
 
 Fire by negligence. See Insurance, 
 
 312. 
 Fisheries, 137. 
 Fixtures, 160. 
 
 Force, injuries with, 369, 399. 
 Forcible entry and detainer, 571. 
 Foreign bill of exchange, 302. 
 
 coin, 566. 
 Foreigners. See Aliens, 120. 
 Forfeiture, 205. 
 
 by breach of contract, 526. 
 Forgery under U. S., 566. 
 
 under the State, 588. 
 Fornication, 577. 
 Forum, 243, 448. 
 Franchises, 137. 
 Frauds, 176, 527, 530. 
 
 property obtained by, 589. 
 Fraudulent conveyance, 264, 308. 
 Freehold, 140. 
 Fruit, 160. 
 Funds, public, 96, 117. 
 
 Gaming, 573. 
 
 Gift of chattels, 237, 273. 
 
 of land. See Devises. 
 Gist of action, etc., 433. 
 Goods and chattels, 152, 232. 
 Governor, 92. 
 Government and laws, 38, 42, 45, 49. 
 
 U. S., 52. 
 
 State, 81. 
 Grant of land, 141. 
 
 of reversion, 180. 
 Guaranty, 309. 
 Guardian and ward, 351, 352. 
 
 by appointment, 85-S. 
 
 of non compos, 356. 
 
 foreign wards, 356. 
 
 Habeas corpus, 126, 614. 
 
 ad testificandum, 654. 
 Handwriting, 465. 
 Hazard in insurance, 312. 
 Heir, 199, 350. 
 Hereditaments, corporeal, 140. 
 
 incorporeal, 135. 
 Highways, 59, 97, 110, 136. 
 High seas, offenses on, 565. 
 Hiring, 292. 
 Holding over, 157. 
 Holidays, 136. 
 Homicide, 577. 
 
 felonious, -577. 
 
 justifiable, 578. 
 Honor, acceptance of bills for, 304. 
 House-breaking, 584. 
 Husband and wife, 334. 
 
 Identity of things and persons, 661. 
 Idiots. See G-uardian. 
 not witnesses, 655. 
 Ignorance of the law, 21, 527, 551. 
 Illegal consideration, 264. 
 
INDEX. 
 
 TOT 
 
 Illegal contracts, 265. 
 Illegitimate children, 349. 
 Impeachment, 86, 691. 
 
 of witnesses, 4G4. 
 Implements of trade, 611. 
 Implied promises, 267. 
 
 ■warrant}', 277. 
 
 trusts, 532. 
 Impossible condition, 167. 
 Imprisonment, punishment bv, 546. 
 Incest, 576. 
 Incorporation, 360. 
 Indenture, 359, and see Deed. 
 Indictable offenses. 624. 
 Indictment, 624, 631. 
 
 copy of, 626. 
 Indorsement, 299, 302-5. 
 Inducement in pleading, 433. 
 Infancy, 352. 
 
 as to crimes, 651. 
 Infants, 351, 631. 
 Inferior courts, 591. 
 Information, criminal, 603. 
 Informer, 605. 
 
 Inheritance, 183, 199, 201, 248. 
 Injunction, 428, 527. 
 Injuries and remedies, 338, 368, 375, 552 
 
 to personal rights, 577. 
 
 to property, 682. 
 Iniikeepers, 294. 
 Inquest, 481. 
 
 Inqliiry, or examining court of, 612. 
 In rem, proceedings, 400. 
 Institutes of Justinian, 430. 
 Insurance, 311. 
 Interest on money, 317. 
 Interested witness, 477. 
 Interlocutory decree and judgment, 498. 
 Interpleader, 525. 
 Interpretation of statutes, 64, 89. 
 Intestacy, 253. 
 Intoxication, 550. 
 Invention, title by, 237. 
 Inventory, 250. 
 Involuntary homicide, 552. 
 Issue, 440, 442. 
 
 in fact and in law, 481. 
 joinder in, 430, 442. 
 
 Jeofails in civil cases, 495. 
 
 in criminal cases, 678. 
 Joinder in issue, 4-54. 
 Joint stock. See Corporations. 
 Joint tenancy, 179. 
 Jointure, 343. 
 Judge, 395. 
 
 Judges counsel for prisoner, 684. 
 Judgment, 241, 394, 396, 497, 499, 502, 
 680. 
 
 construction of, 396. 
 
 arrest of, 494, 677. 
 
 dormant and revivor, 517 520. 
 
 by default, 423. 
 
 by confession, 497. 
 
 Judgment, entry of record, 497. 
 
 non obstante, 496. 
 
 reversal, 505, 508, 697. 
 Judicial and ministerial, 385. 
 Judiciary of the U. S., 71. 
 
 of the State, 98. 
 Jurisdiction, 101, 105, 241, 380-2. 
 Jurors, qualification of, 487, 629. 
 
 challenge of, 486. 
 Jury trial, 485, 695. 
 
 common and struck, 487, 627. 
 
 discharge of, 490, 673. 
 
 grand, 622. 
 Jus accrescendi, 190, 236. 
 Justice, offenses against, 567. 
 Justices of the peace, 102. 
 
 jurisdiction, 102, 390. 
 Justifiable homicide, 577, 579. 
 Justification plea, 442. 
 Justinian, 430. 
 
 Kin and kindred, 179. 
 
 Labor, 280, 293. 
 Laborers, 258, 293. 
 Laches, 286, 493. 
 Land, how holden, 129, 140. 
 
 property in,, 129. 
 
 sold by guardian, 364. 
 Landlord and tenant, 156, 168. 
 Lapsed devise, 227. 
 
 legacy, 247. 
 Larceny, 586. 
 
 by servants, 587. 
 
 from house or from the person, 585. 
 
 things not subject, 686. 
 Law, 21, 33, 49. 
 
 division of, 49. 
 
 equity, 621. 
 
 civil, 49, 368. 
 
 common, 42, 544. 
 
 criminal, 543, 555. 
 
 feudal, 132. 
 
 parliamentary, 61, 88. 
 
 study of, 20, 31, 701. 
 Lease, 144, 151-4, 157, 160. 
 
 and release, 209. 
 
 by a lessor, 160. 
 Leasehold, perpetual, 152. 
 Legacies, 245. 
 Legal estates, 211, 523. 
 Legislative and executive, 57, 84. 
 
 powers of the State, 84. 
 Legitimacy, 347. 
 Letters. See Post-office. 
 Lex fori and loci. 448. 
 Liberties and franchises, 137. 
 Liberty of the press, 672. 
 
 personal, 125,. 614, 617. 
 
 civil and political, 88, 122. 
 Licenses, 574. 
 
 marriage, 335. 
 Lien, 374. 
 Life estate, 146. 
 
708 
 
 INDEX. 
 
 Limitation in grant, 209, 213, 219. 
 
 in actions, 408, 447. 
 
 of prosecution, 640. 
 
 statutes of, 408, 447. 
 Lineal consanguinity, 198. 
 
 descent, 198. 
 Literary property, 237. 
 Livery of seisin, 135, 181. 
 Loan, money contracts, 290. 
 Local actions, 400. 
 
 allegiance, 120. 
 Lunacy and lunatic, 263, 550. 
 Lunatic asylum, probate judge, 101. 
 
 guardian, 356. 
 
 crime of, 550. 
 
 marriage of, 335. 
 
 Magistrates, 118. 
 Maintenance of bastard, 350. 
 
 children, etc., 346. 
 Mail, and robbery of, 566. 
 Mala in re and prohibita, 545, 552. 
 Malfeasance, 369. 
 Malice, 370, 577. 
 Malicious injuries, 589. 
 Mandamus, writ of, 378. 
 Manslaughter, 579. 
 Marine insurance, 313. 
 Marital rights, 339. 
 , Market and fairs, 275. 
 Marriage, 334, 343. 
 
 license and prohibition, 335. 
 
 settlement, 343. 
 Married woman's rights, 211, 339, 340, 
 413, 551. 
 
 title by, 194. 
 
 agreement, 343. 
 Marshal, 75, 392, 615. 
 Master and servant, 357. 
 
 liability of, 360. 
 Measures. See Weights. 
 Medical jurisprudence, 31. 
 Meeting-house, 575, 583. 
 Members, Congress, 57. 
 
 legislature, 85. 
 Merchants, custom of, 240, 285. 
 
 law of, 41. 
 Merger, 185. 
 Mesne process, 422, 510. 
 Militia, 60. 
 Ministerial, etc., 376. 
 Minority. See Age. 
 Mint, U. S., 79, 573. 
 Misadventure, 552. 
 Misdemeanors, 544. 
 Mischief, 589. 
 Misfeasance, 369. 
 Misfortune, excuse for crime, 552. 
 Misnomer, 441. 
 Misprision, 557 
 
 Misrepresentation. See Fraud. 
 Mistake, in crime, 552. 
 
 in equity, 526. 
 Misuser, 366. 
 
 Mittimus, 611. 
 
 Molliter manus imposuit, 582. 
 
 Money contracts, 306. 
 
 counterfeit, 588. 
 Mortgage, 167, 169. 
 
 personal property, 315. 
 Mortmain, 364. 
 Motions, 502. 
 Movables, 233. 
 Municipal law, 49. 
 Mutual promise, 261, 272. 
 
 National allegiance, 55, 56. 
 
 liberty, 54. 
 Nations, law of, 40, 564. 
 
 offenses against, 556, 564. 
 Naturalization, 121. 
 Navigable rivers, 45. 
 Necessaries, 342, 347. 
 Negligence, 286. 
 
 homicide by, 578. 
 
 injuries by, 286. 
 
 in oflScers, 118, 119. 
 Negotiable instruments, 297. 
 Negroes, 122. 
 New assignment, 447. 
 Newspapers, 405, 421. 
 New trial, 493. 
 Night house-breaking, 584. 
 Nisi prius court, etc., 420. 
 Non assumpsit, 442. 
 Non compos, 356, 550. 
 Non obstante veredicto, 496. 
 Non-residents, 421. 
 
 minors, 356, 357. 
 Nonsuit, 499. 
 
 Not guilty, plea of, 443, 645. 
 Notice of protest, 305. 
 
 of trial, 502. 
 
 to quit, 157. 
 Nudem pactum, 261. 
 Nul tiel record, plea of, 482. 
 Nunc pro tunc, equity of, 396. 
 Nuncupative will, 224, 243. 
 Nurture, guardian by, 352. 
 Nuisance, abatement of, 371. 
 
 Oath, 457, 568. 
 
 .by members, 56. 
 
 of witnesses, 457. 
 
 unlawful, 5b8. 
 Obligation, 256. 
 Occupation, 231, 237. 
 Offenses, 543, 561-5. 
 OfBcer and officers, 118, 876. 
 
 of the State, 95, 116, 117. 
 OtHcial act, 119, 376. 
 Orders. See Judgfneni. ' 
 Ouster, 370. See Trespass on Real Prop- 
 erty. 
 Overt act, 557. 
 
 Paramount title, 132, 133. 
 Paraphernalia, 250, 340. 
 
INDEX. 
 
 709 
 
 Parceners, 189, 200. 
 Pardon, 698. 
 Parent and child, 346. 
 Parol agreements, 256. 
 
 evidence, 476. 
 Particular estate, 180. 
 Partition, 403. 
 
 deed of. See Deed. 
 Parties to action, 411. 
 Partnership, 324. 
 
 Partners, remedies as to each, 331. 
 Passport, violation of, 565. 
 Pawns, 291. 
 Payments, 458, 516. 
 
 of money in court, 424. 
 Peace, breach of, 570. 
 
 offenses against, 570, 606. 
 
 officers of, 607. 
 Penal statutes, 64, 544. 
 Penalties, 544. 
 Penitentiary, 549, 682, 686. 
 Pension, 138. 
 
 People and the public, 117. 
 Per capita and per stirpes, 200. 
 Peremptory challenges, 487. 
 
 mandate, 378. 
 Performance, specific, 215, 531. 
 Perjury, 567. 
 
 Perpetuation of testimony, 525. 
 Person, public and private, 49, 125. 
 
 artificial, 125. 
 Personal action, 398. 
 
 presence in crime, 680. 
 
 chattels and property, 232, 236. 
 
 liberty, 115, 125, 127. 
 Petition at law, 450. 
 
 in chancery, 534. 
 Piracy, 565. 
 Piscary. See Fisheries. 
 Plea, 440. 
 
 dilatory, 441. 
 
 in abatement and bar, 441, 442. 
 
 special, 443. 
 Pleadings, special, 430. 
 
 declaration in, 432. 
 
 rules of, 433. 
 
 demurrer, 437. 
 
 issue and traverse, 443. 
 
 confession and avoidance, 442, 444. 
 
 under the code, 450. 
 
 in criminal cases, 697. 
 
 amendment, 495, 502, 536. 
 Pledge, 291. 
 Poisoning, 579. 
 Policies, 312. 
 
 Political and civil liberty, 130. 
 Polygamy, 335, 576. 
 Posse comitatus, 392, 570, 608. 
 Possession , actual, 129, 135, 193, 231, 237. 
 
 estate in, 179, 191, 231. 
 
 naked, 179, 231. 
 
 property in, 231, 235. 
 Post-nuptial settlement, 343. 
 Post-office, 59, 70. 
 
 Powers, 227, 320. 
 
 Practice and procedure, 417. 
 
 Praecipe, 418. 
 
 PriEtor, 439. 
 
 Precedent condition, 268. 
 
 Premises in a deed, 221. 
 
 Prescription, 471. 
 
 Presumption of law, 471. 
 
 Principal and accessory, 653. 
 
 and agent, 320. 
 
 and servant, 360. 
 
 and surety, 323. 
 
 in second degree, 553. 
 Prison, 545, 681. 
 Private statute, 88. 
 Privity of estate, 154, 156. 
 Probate, 225, 243. 
 Procedendo, 379. 
 Proceedings, 383, 384. 
 
 ex-parte, 383. 
 
 in rem, 400. 
 
 in personam, 400. 
 Process, 422, 510, 607. 
 Prochein ami — next friend, 413. 
 Proclamation, 93. 
 Pro confesso, 497. 
 Profert, 449. 
 
 Profits, trustees answerable for, 532. 
 Prohibition, 378. 
 Promise. See Contract. 
 
 action on, 398. 
 Promissory notes, 297. 
 Promulgation of law, 547. 
 Proofs, 456, n. 4, 473, 660. 
 Property, 128, 232. 
 
 dominium directum, 133. 
 
 in action, 235. 
 
 owners of personal, 236. 
 
 in possession, 233. 
 
 incorporeal, 135, 139, 233. 
 
 injuries to, 543, 582. 
 Prosecution, 546, 603. 
 Prosecuting attorney, 604, 624, 625, 687. 
 Protest of bills, etc., 304. 
 Provisional remedies, 405, 424. 
 Public statutes and acts, 80, 466. 
 
 ofiieers, 118. 
 
 houses, 294. 
 
 ways, 59, 136. 
 Public and private things, 49, 368, 375, 
 
 543. 
 Punishments, 545, 548, 681. 
 
 capital, 549, 681. 
 Pur auter vie, 145. 
 Purchase, title by, 207, 208, 194. 
 Putative father, 305. 
 Putting in fear, 588. 
 
 Quakers, etc., affirmation, 656. 
 Qualification of jurors, 487. 
 Qualified fees and property, 142, 235. 
 Quantum meruit, etc., 280. 
 Question, leading, 465. 
 Quashing — pleadings, etc., 641. 
 
710 
 
 INDEX. 
 
 Qui tam action, 604. 
 Qui timet, 528. 
 Quiet enjoyment, 528. 
 Quorum, 391, 
 Quo warranto, 377. 
 
 Eailroads, 574. 
 
 Eape, 582. 
 
 Eeal property, 131, 194, 284. 
 
 chattels, 163, 232, 284. 
 
 actions, 898. 
 Eealty, 131. 
 Becaption, 371. 
 Eeceiver, 428. 
 Eecognizance, 611. 
 
 of bail, 012,622. 
 Eecord of law proceedings, 381, 390, 
 392. 
 
 amendment of, 678. 
 
 of deeds, 208. 
 Eedemption , equity of. See Mortgage. 
 Eedress of injuries, 370, 373, 875. 
 Ee-entry on land, 155, 158. 
 Eeference, 483, 537, 538. 
 Eehearing and review, 538. 
 Eejoinder, 431, 449. 
 Eelease of action , 449. 
 Eeligion, offenses against, 575. 
 Eemainder, 180, 185. 
 
 cross, 229. 
 
 contingent, 184. 
 
 of things personal, 235. 
 
 vested, 184. 
 Eemedial law and statute, 88, 90, 91. 
 Eemitter, 874. 
 Eent, 138, 154, 157. 
 Eepair, 159. 
 Eepeal of statute, 89. 
 Eepleader, 496. 
 Eeplevin, 399. 
 Eeplication, 431, 448. 
 Eeply, 450. 
 
 Eeport of referee, etc., 484. 
 Eepresenlation, public, 130- 
 
 jiersonal, 199, 242. 
 Eeprieve, 699. 
 Eeprisal, 371. 
 Eepublication, 246. 
 Eeputation, 659. 
 Eeservation. See Remainder, 
 Eesiduary legacy, 251. 
 Eesiduum, 252. 
 Eespondeat superior, 360. 
 
 ouster, 440, 498, 697. 
 Eestitution of conjugal rights, 346. 
 Eesulting trusts, 177. 
 Eetainer, 373. 
 Eeversion, 180. 
 
 Eeversal of judgment, 508, 697, 698. 
 Eeview, 538. 
 Eevivor, 519, 520. 
 Eevocation of will, 227, 246. 
 Eights of action, 397. 
 
 of common, 135. 
 
 Eights of entry and possession, 179, 199, 
 230, 248. 
 
 of water-course, 137. 
 
 personal and absolute, 125. 
 
 of conscience, 128. 
 
 civil, 130. 
 
 relative, 819, 334. 
 Eiots, 570. 
 Eobbery, 587. 
 Eouts, 138, 157, 159. 
 Eulein Shelley's case, 184. 
 
 of court, 879. 
 
 to show cause, 379. 
 
 Sabbath, profaning, 575. 
 Sale and exchange, 274. 
 
 ■what may be sold, 209. 
 
 of land on execution, 513. 
 
 by administrators, etc., 252. 
 Salvage, 313. 
 Sanction of law, 544. 
 Satisfaction of judgment, 520. 
 Scandal, 370, '402, 572. 
 Scire facias, writ of, 516, 517. 
 Seal, 213, 214, 256. 
 Sealing of deeds, 213. 
 Security, of the peace, 606. 
 Senate, TJ. S., 57. See Impeachment. 
 Sentence for crime, 680. 
 Servants, 357. 
 
 larceny by, 587. 
 
 master responsible, 360. 
 Set-off, 452. 
 
 Severalty, estate in, 189. 
 Shellev's case, 184. 
 Sheriff, 96, 682. 
 
 deputy, 392. 
 Simple contract, 256. 
 
 debt, 308, 398. 
 
 larceny, 585. 
 Slander, 370, 402, 572. 
 Slaves and slavery, 122. 
 Sovereignty of the people, 44, 51. 
 Special administration, 249. 
 
 case, 399, 403. 
 
 jury, 628. 
 
 pleading, 430, 443. 
 
 property, 235. 
 
 verdict, 684. 
 Special occupant, 145. 
 Specific performance, 215. 
 State, 81. 
 
 executive, 92. 
 
 Incidental powers, 107. 
 Statute, 61, 88, 91, 546, 547. 
 
 de donis, 183. 
 
 construction, 64, 89. 
 
 remedial, 90, 91. 
 
 guardian by, 353. 
 
 of limitation, 408, 447. 
 
 private and public, 88. 
 
 repeal of, 547 
 Stealing, 585. 
 
 animals, 585. 
 
INDEX. 
 
 711 
 
 Stealing, at common law, 585. 
 Stocks, 234. 
 
 Stoppage in transitu, 279. 
 Study of the law, 21. 
 Submission to arbitration, 372. 
 Subornation of perjury, 569. 
 Subpoena to testify, 463, 653. 
 
 in chancery, 534. 
 Subscribing witnesses. See Deed and 
 
 Wills. 
 Subscription, 274. 
 Succession, 194, 242. 
 Sufferance, estate at, 156. 
 Summary conviction, 597, 610. 
 Summons before magistrate, 102 389, 
 390. 
 
 in personal actions, 418. 
 
 and severance, 414. 
 Sunday, arrest on, in criminal cases, but 
 
 no day of business, 270. 
 Superior courts, 381, 590. 
 Supersedeas, 503, 686. 
 Supplemental petition, 536. 
 Supra protest, 804. 
 Supreme power in a State, 
 Surety, 323. 
 Sur rejoinder, etc., 431. 
 Survivor, 329. 
 
 Tail, tenant in, 142. 
 Tales, 487, 628. 
 Taxes, 117. 
 Tenant at sufferance, 156. 
 
 at will, 155, 156. 
 
 bv the curtesy, 146. 
 
 for life, 146. 
 
 for years, 151. 
 
 from year to year, 157. 
 
 in dower, 147. 
 
 in fee, 141. 
 
 in tail, 142. 
 
 per auter vie, 145. 
 Tenants, joint, 179. 
 
 common and in severalty, 189. 
 
 coparcenary, 190. 
 
 in possession, 179. 
 Tenements, 140. 
 Tenure in fee, allodial, 131. 
 Term for years, 151, 157. 
 Terms of court, 498. 
 Testament and will, 224, 242. 
 Testimony, 456, n. 4, 464. 
 Theft. See Larceny. 
 Things real, 139. 
 
 personal, 232. 
 Threats, 581. " 
 Time, computation, 269, 270, 317, 318, 
 
 351, 352. 
 Title in land, 131. 
 
 by operation of law, 193, 194. 
 
 by the acts of the parties, 207, 218. 
 
 by deed, 208. 
 
 be devise, 224, 242. 
 
 by record, 230. 
 
 Title by escheat, 204. 
 
 by execution, 205, 241. 
 
 to personal property, 236-9. 
 Tools exempt, 511. 
 Torts, 375, 398, 399. 
 
 by the wife, 342. 
 Town, 43, 98. 
 Trade, crimes against, 573. 
 
 as regulated by U. S., 564. 
 
 exports and imports, 573. 
 Tradesman, 574. 
 Transfer of property, 209, 275. 
 Transitory actions, 400. 
 Transitu, stoppage in, 279. 
 Traverse in pleading, 442, 443. 
 Treason, 556. 
 
 levying war, 557. 
 
 aid to enemies, 558. 
 
 in general, 556, 559. 
 
 against the State, 559. 
 
 misprision of, 557. 
 
 two witnesses in, 559, 561. 
 
 pardon in, 699. 
 Treasury of the State, 96. 
 
 county, 97. 
 
 U. S., 70. 
 Treaties, 55, 59, 68. 
 Trees, 164. 
 Trespass by persons, 370. 
 
 servants, 360. 
 Trial, proceedings in, 480. 
 
 in criminal cases, 664, 669. 
 
 byjurv, 485, 665. 
 
 new, 493, 675. 
 Triors, 486, 628. 
 Triplication, 480. 
 Trover, 433, 434. 
 Trust estate, .174. 
 
 implied and express, in equity, 532. 
 
 resulting, 177. 
 
 uses and, 174. 
 Two witnesses required in a deed, will, 
 
 treason, perjury, 224, 243, 559, 561. 
 
 Umpire, 372. 
 Union, 44, 56, 58, 76. 
 
 extent and laws of, 42, 52. 
 United States, 42, 52. 
 
 incidental powers of, 78. 
 Unknown person, 421. 
 Unlawful assemblies, 571. 
 Unwholesome provisions, 278. 
 Usury, 317, 318. 
 
 Variance, 435, 474. 
 
 Venditioni exponas, 517. 
 
 Vendor and vendee, 161, 163, 164, 199, 
 
 218. 
 Venire facias, 487. 
 
 de novo, 494, 677. 
 
 in criminal cases, 685. 
 
 in civil cases, 485, 486. 
 Verbal contract, 256. 
 
 slander, 370. 
 
712 
 
 INDEX. 
 
 Verdict, 489, 490, 674. 
 
 cure of defects after, 495, 677. 
 
 special, 490, 677. 
 
 setting aside a, 677. 
 
 venire de novo, 677. 
 View by the jury, 489. 
 Violent presumption, 471. 
 Void and voidable, 210, 259, 260. 
 Voire dire, 656. 
 Voluntary conveyance, 217, 
 
 Wager, unlawful, 210. 
 
 Wagering policies, 314. 
 
 Wages, 258, 280, 293. 
 
 Waifs, 237 
 
 Waiver, 506, 694, 697. 
 
 War, 557. 
 
 Ward. See Guardian, 
 
 Warehouse, etc., 294. 
 
 Warrant, arrest by, 608. 
 
 without, 607. 
 Warranty of land title, 219, 223. 
 
 on sale of goods, 277, 278. 
 
 Waste, 404. 
 
 Ways, 136. 
 
 Weights and Measures, 79, 573. 
 
 Wild animals, 234, 235. 
 
 Wills and testament, 224, 245. 
 
 Witnesses, 463, 657. 
 
 examined in court, 465, 657. 
 
 to a will, 224, 243. 
 
 competency of, 463. 
 
 character, 464, 659. 
 Writing, 466, 660. 
 Writs in general, 418, 607. 
 
 of error, 503. 
 
 of possession, 511. 
 
 of injunction, 424. 
 
 of attachment, 405. 
 
 of certiorari, 502. 
 Wrongs, 368, 543. 
 
 redress of, 370. 
 
 Year, 369, 370. 
 
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