mer suit. In answering this question, reference must be had, of course, to the pleadings as well as to the judgment or decree.

If the court had decreed specific performance, the money paid by the purchaser would have been credited to him in taking the account with the vendor; or, on the other hand, if the contract had been canceled, he would have been compensated for the money he had paid in performance of the contract. The court, however, did neither, but refused to interfere, and left both parties to their strict legal rights.

The refusal of the court to rescind the contract is not inconsistent with the alleged promise of the vendor to refund the money paid, in consideration of his release from the contract.

That may have been the ground upon which the court refused to declare a rescission; but, whether so or not, such refusal does not negative the existence of such agreement to refund.

A judgment is conclusive by way of estoppel only as to facts, without the proof or admission of which it could not have been rendered. Burlen v. Shannon, 99 Mass. 200; Lea v. Lea, Id. 493.

In an action under section 626 of the Municipal Code (66 Ohio L. 254), to enforce an assessment for the construction of a sewer, it is error, where the proper defense is made, to render a personal judgment against one in possession of the property assessed, but having no other interest therein then as lessee for a term of ten years; he is not an "owner" within the meaning of that section; and it will make no difference, in such action, that the lease provides for the payment by the lessee of all assessments upon the property.

Error to the District Court of Hamilton County.

On February 1, 1862, George H Pendleton, Elliot H. Pendleton, Martha L. Dandridge, and Anna C. Schech, being the owners in fee of certain premises, situated on Court street and Gilbert avenue, in the city of Cincinnati, executed a lease for the same to Samuel Davis, Jr., for the term of ten years, at a rent of $600 a year, payable quarterly, and placed him in possession. It was stipulated in the lease that Davis should pay all taxes, charges and assessments of every kind, which were or thereafter should be assesssed, taxed, charged and levied on the premises or any part thereof, or which should in any manner depend upon or grow out of the said lease, during the term therein granted. At the expiration of the term, February 1, 1872, Davis continued in possession of the premises, holding over under a verbal agreement with the owners in fee to give him another term of ten years upon the same terms and conditions as those con

tained in the written lease. He remained in possession until judgment was rendered in this case, as hereinafter mentioned, and for aught that appears is still in possession.

On May 8, 1872, proceedings were commenced in the common council of the city of Cincinnati, with a view to the construction of sewers in certain streets, aniong others in that part of Court street upon which the property in question abuts. That sewer was constructed by J. B. H. Nolte, under a contract with the city inade January 26, 1874, and an assessment by the frontage, amounting to $739.82, was, on June 12, 1874, levied on the property in question.

The assessment not having been paid, the city, suing for Nolte, brought suit in the court of cominon pleas, on February 2, 1875, against Davis and the owners of the fee, to recover the same, asking in the petition a personal judgment against them and an order for the sale of the premises. Davis denied that he was the owner of the premises, and claimed that he was not liable to a personal judgment. The cause was submitted to the court, and on request the facts and conclusions of law were found. The facts so found were substantially as above set forth, and judgment was rendered against Davis for $840.21, the amount of the assessment, penalty and interest, and the property assessed was ordered to be sold to

satisfy the amount so found to be due. The court further found that the owners in fee were not liable to a personal judgment. On error, prosecuted by Davis, the district court affirmed the judgment, and this petition in error was filed by him to reverse the judgment of affirm

ance.

E. A. Ferguson, for plaintiff in error:

McGuffey, Morrill & Strunk for the city, and Paxton & Warrington, and F. K. Pendleton, for the owners in fee.

OKEY, J.

The single question is whether Davis was liable to personal judgment for the assessment. The chapter on sewers in the municipal code (66 Ohio L. 149, ?? 612, 614), provided, among other modes for assessing the cost and expense of constructing main and local sewers, that it might be done according to frontage.

"All

Section 629 of the same chapter was as follows: assessments made under the provisions of this chapter shall be a lien on the lots or lands assessed. They shall be transferable, and may be collected against the owner personally, or by enforcement of the lien upon the property subject thereto."

The "owner" referred to in section 626 must, as a general rule, be one having a freehold estate in the premises assessed. Perhaps exceptions to the rule exist. See Rev. Stats. 2733, 4181. The term "owner" does not, as a general rule, include the holders of chattels real. The assessment is on land, and it is an owner of land who is liable to the personal judgment. We are clear that the term "owner" does not include one having no other interest than as a lessee for a term of ten years. Any other construction would lead to absurd consequences. A tenant holding for a month might be personally bound for permanent public improvements of the most expensive character.

Where a party is personally liable for an assessment, his liability is precisely commensurate with the lien upon the property. The only express exception to the rule that such party must be the owner of the fee, is found in section 541 of the municipal code, which, as amended in 1870 (67 Ohio L. 80), is as follows: "Where a special as

sessment is made on real estate subject to a life estate, such assessment shall be payable by the tenant for life; but upon application of said life tenant to a court of proper jurisdiction, by action against the owners of the estate in fee, such court may apportion the cost of said assessment between said tenant for life and owner in fee, in proportion to the relative value of said improvement to their estates respectively, to be ascertained and determined by said court on principles of equity." Other exceptions to the rule may exist, as already indicated.

But it was urged that here was a lease in which Davis expressly bound himself to pay all assessments, and that this lease had been renewed, so that it was in full force when the improvement was projected, and when the assessment became a lien upon the property; and that, in order to prevent circuity of action, a suit may be maintained by the city directly against Davis. But the liability to a personal judgment for an assessment of this character is statutory; such liability is confined to the owner of the property, and Davis, as we have seen, is not such owner.

We express no opinion upon the question whether, by force of the parol agreement between the owners of the fee and Davis, the liability of the latter to pay assessments did or did not continue after February 1, 1872. But assuming that it continued to be, in all respects, the same that it had been during the preceding ten years, still the agreement between the parties cannot be considered in this statutory action. Whatever liability from Davis to the owners of the fee may exist, is a matter entirely between themselves, and with which the city and Nolte have no concern.

fied copy thereof to Thompson, the township clerk, with a request to certify it to the supervisor, to be raised by tax on the township; but that Thompson declared that he would not do it, and pretended that there was no supervisor; that one Mitchell Spillman, who had been supervisor, had resigned; and that if there were any supervisor, still he would not do it; that he himself had resigned, and was not clerk of the township; that the supervisor and himself had both resigned for the express purpose of defeating the collection of petitioner's judgment, and other similar claims. The petition charges that the said supervisor and clerk have fraudulently combined to cheat and defraud the petitioners by falsely pretending to resign, whereas they actually continue to discharge the duties of their offices-setting forth various fasts corroborative of the charge.

The court below having granted a rule to show cause why a mandamus as prayed for should not issue, the defendant filed an answer to the petition admitting that a judgment had been entered against the township, as stated in the petition, but averring that it was not a valid judgment, because, as the answer alleged, the court never obtained jurisdiction; that no service was ever had of process in the cause upon the supervisor of the township; that Alonzo D. Brown, upon whom service was made, was not at the time supervisor; and that although one Clapp,

order of sale will be affirmed.

Judgment accordingly.

UNITED STATES SUPREME COURT

THOMPSON V. UNITED STATES EX REL. CAMBRIA IRON COMPANY.

APRIL 18, 1881.

Proceedings in mandamus against a municipal officer to compel the performance of an official duty do not abate by the expiration of the office of the defendant, when there is a continuing duty irrespective of the incumbent, and the proceedings are undertaken to enforce an obligation of the corporation or municipality to which the office is attached.

In error to the Circuit Court of the United States for the Western District of Michigan. The opinion states the case.

BRADLEY, J.

This case arises upon a petition for a mandamus to compel Thompson, the townshipclerk of the township of Lincoln, in the county of Berrien, State of Michigan, to make and deliver to the supervisor of the township a certified copy of a judgment recovered against it by the Cambria Iron Company, the petitioners, in order to its being placed upon the tax-roll for collection and payment. The questions arising are much the same as those disposed of in the case of Edwards v. United States, reported. The petition states that the Cambria Iron Company recovered judgment against the township of Lincoln, in the Circuit Court of the United States, on the 29th of May, 1876, for the sum of $6,273.32, besides costs, and caused to be delivered a certi

never employed by the township; that the defendant was, it is true, duly elected clerk of the township in April, 1876, but that he resigned his office before the certified copy of the judgment was served upon him, by filing in the office of clerk [that is, his own office ] and depositing with the files of the township a written resignation addressed to the township board; and that he has not acted as clerk since. He admits that he refused to certify the judgment, but did so because he was not clerk, and because there was no supervisor, Spillman, who had been supervisor, having resigned. This answer was demurred to, but the demurrer was overruled and the cause came on for trial. The jury rendered a special verdict, as follows:

"First. That on the 23d day of November, 1875, Alonzo Brown, upon whom the declaration was served in the original case of The Cambria Iron Company v. The Township of Lincoln, was supervisor of said township of Lincoln, and was such supervisor at the time the declaration in said cause was served upon him as such supervisor by the marshal.

"Second. That George S. Clapp, who entered his appearance as attorney for the defendant in said cause and appeared and pleaded therein for said township of Lincoln, was duly authorized by said defendant to appear and plead for it in said cause.

"Third. That the respondent, John F. B. Thompson, was, at the time of the service of the order to show cause in this, why a mandamus should not issue against him, clerk of the said

township of Lincoln, and still is such clerk, and has not resigned the said office.

"Fourth. That Mitchell Spillman was, at the time the said order to show cause was served, the supervisor of said township, and still holds the said office, and held the said office on October 1st, A. D. 1876."

The questions raised on the trial were, as in the previous case of Edwards, whether the tender of a resignation by a supervisor or clerk of a township, by filing the same with the clerk, was valid and effectual as a resignation, so as to discharge the officer of his official character, without an acceptance by the township board, or an appointment to fill the vacancy. Such a resignation was relied on to show that Brown, on whom process in the original action was served, was not supervisor, and that Spillman was not supervisor, and the defendant was not clerk when the present proceedings were commenced. As we have fully discussed this question in the previous case, it is not necessary to say anything further on the subject. The ruling of the court below was in conformity with our decision in that case. This also disposes of the question of the appearance of Clapp, the attorney in the original action, he having been employed by Brown, the supervisor.

Another question raised at the trial was whether the petitioner might show the motive and intent with which the supervisor and clerk attempted to resign, with a view to show that it was done for the purpose of defrauding the petitioners, and avoiding to do those acts which are necessary to the collection of his judgment. The court allowed evidence to be given on the subject, and to this the defendant excepted. We do not see why the evidence was not admissible for the purpose of showing that the attempted resignation was simulated and fraudulent. But it is not necessary to decide this point, since the admission of the testimony did not injure the defendant, because the attempted resignations were not completed by the acceptance of the township committee.

Another point raised was that it appeared by the township book, offered in evidence, that the township board did appoint a successor to the defendant as township clerk on the 4th day of November, 1876, after the cause was at issue. On motion of the petitioner's counsel this evidence was stricken out, for the reason that such fact having arisen since the return was made, it was not competent under the issue framed thereon. It does not appear that this matter was in any way brought to the notice of the court, or sought to be put in issue, until the evidence was offered during the trial. In addition to this, the evidence was not conclusive. It did not show that the attempted appointment was effectual. Had the point been properly put at issue the whole matter could have been known. We think the court was justified in striking out the evidence. As a matter of defense, whether in abatement or in bar, it should have been set up by a plea quis darrein contiņu

ance, or its equivalent. It could not be given in evidence under any of the issues in the cause. Jackson v. Rich, 7 Johns. 194; Jackson v. McCall, 3 Cow. 79.

But we cannot accede to the proposition that proceedings in mandamus abate by expiration of office of the defendant where, as in this case, there is a continuing duty irrespective of the incumbent, and the proceeding is undertaken to enforce an obligation of the corporation or municipality to which the office is attached. The contrary has been held by very high authority. People v. Champion, 16 Johns. 61; People v. Collins, 19 Wend. 56; High on Extr. Rem. § 38. We have had before us many cases in which the writ has, without objection, been directed to the corporation itself, instead of the officers individually; and yet in case of disobedience to the peremptory mandamus, there is no doubt that the officers by whose delinquency it was incurred would have been liable to attachment for contempt. The proceedings may be commenced with one set of officers and terminate with another, the latter being bound by the judgment. Bd. Commissioners v. Knox Co., 24 How. 376; Supervisors v. United States, 4 Wall. 435; Von Hoffman v. Quincy, id. 535; Benbow v. Iowa City, 7 id. 313; Butz v. City of Muscatine, 8 id. 575; Mayor v. Lord, 9 id. 409; Commissioners v. Sellew, 99 U. S. 626; and many others.

And so, if we regard the substance and not the mere form of things, a proceeding like the present, instituted against a township clerk, as a step in the enforcement of a township duty to levy the amount of a judgment against it, ought not to abate by the expiration of the particular clerk's term of office, but ought to proceed to final judgment, so as to compel his successor in office to do the duty required of him in order to obtain satisfaction from the township. The whole proceeding is really and in substance a proceeding against the township, as much as if it were named, and is in the nature and place of an execution. If the resignation of the officer should involve an abatement, we would always have the unseemly spectacle of constant resignations and re-appointments to avoid the effect of the suit. Where the proceeding is in substance, as it is here, a proceeding against the corporation itself, there is no sense nor reason in allowing it to abate by the change of individuals in the office. The writ might be directed to the township clerk by his official designation, and will not be deprived of its efficacy by inserting his individual name. The remarks of Mr. Justice Cowen, in People v. Collins, 19 Wend. 68 are very pertinent to the case and seem to us sound. That was a mandamus to commissioners of highways who were elected annually; and it was objected that their term would expire before the proceedings could be brought to a conclusion. Justice Cowen said: "The obligation sought to be enforced devolves on no particular set of commissioners, and no right is in question which will expire with the year. The duty is perpetual upon the present commissioners and

their successors; and the peremptory writ may be directed to and enforced upon the commissioners of the town generally. To say otherwise would be a sacrifice of substance to form." In this connection we may also refer to the recent case of Commissioners v. Sellew, 99 U. S. 626.

The case in which it has been held by this court that an abatement takes place by the expiration of the term of office have been those of officers of the government, whose alleged delinquency was personal, and did not involve any charge against the government whose officers they were. A proceeding against the government would not lie. Secretary v. McGarrahan, 9 Wall. 298; United States v. Boutwell, 7 id. 604. We think that the proceedings have not abated either by the resignation of the clerk and the appointment of a successor, or by the expiration of his term of office, even if it sufficiently appeared that either of these contingencies had occurred.

The judgment of the Circuit Court is affirmed.

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