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he made it appear that the result should be other or different from that already reached, No such showing is made in the case before ust

We do not deny that equity, under some circumstances, will restrain the execution of a void judgment, without an allegation of defense, as for instance, when the fraud or misconduct of the plaintiff in obtaining the judgment is shown; but such jurisdiction is never exercised without such showing, where the judgment is voidable merely, or where, though absolutely void, it appears to be regular on the face of the record. No misconduct is alleged against the judgment creditor, Morrison, and for aught that is alleged, the record of the justice may be entirely regular

judgment of the justice of the peace in question was not void but voidable only. Hence, the question as to what are the rights of a purchaser from the judgment debtor when the land purchased is sought to be charged in execution under a void judgment does not arise in this case. [This case will appear in 37 O. S.]

LOCATING DITCH RUNNING IN MORE THAN ONE COUNTY.

SUPREME COURT OF OHIO.

ALONZO CHESBROUGH

v.

TIES, ET AL.

JANUARY 31, 1882.

upon its face. If the justice adopted the change COMMISSIONERS OF PUTNAM AND PAULDING COUNmade as to the return day of the summons, (as would seem to be the case), the docket would be unobjectionable in form. True, the return of the constable that the defendant was summoned to appear on the 3d of January, 1876, was false; but the falsity of that return would not relieve either the judgment debtor, or the plaintiff, from the necessity of showing in the petition for equitable relief, a meritorious defense to the action.

The contention of the plaintiff in error is that the justice's judgment is absolutely void for want of jurisdiction over the person of Allaire. But in disposing of the case, I have not deemed it profitable to trace the many nice distinctions which have been drawn between judgments void at law and those voidable merely, and have confined myself to the consideration of those principles upon which courts of equity will or will not interfere and set aside judgments for want of proper notice, whether they be such as are commonly denominated void or only voidable.

The practice upon this subject is fairly stated by Mr. Freeman in his work on "Judgments" as follows: "Section 498. It has been held that a judgment rendered without process and without the knowledge of the defendant, may be relieved against without any showing on the question of merits, for the reason that in sach case the injury consists in the rendition of the judgment against a party without notice and opportunity of defense; and that it is unjust and unconscientious to attempt to enforce a judgment so obtained. But the better established rule undoubtedly is, that notwithstanding an alleged want of service of process, a court of equity will not interfere to set aside a judgment until it appears that the result will be other or different from that already reached."" See, also, Taggart v. Wood, 20 Iowa 236; Gregory v. Ford, 14 California, 138; Fowler v. Lee, 10 G. & I. (Ind.) 363; Piggot Addicks, 3 G. Greene, 427; Crawford v. White, 17 Iowa 500; Stokes v. Knarr, 11 Wis. 389.

Equity is not concerned about a judgment which, though irregular, is in fact equitable and just.

Judgment affirmed.

WHITE, J., Concurred in the affirmance of the judgment without approving of the syllabus as applied to the case. He was of opinion that the He was of opinion that the

1. It is within the scope of legislative power, to provide, as is done by Section 22 of the Act relating to Ditches (68 O. L. p. 60), that where a proposed ditch is in more than one county, a majority of the board of county commissioners of each county, may, in joint session, locate and establish the same.

2. Under said section, each board of county commissioners constitutes an integral part of the joint body, and it is essential to the validity of the proceedings in joint session, that a majority of each board should concur therein.

3. In a proceeding under said section, application for damages must be made to the commissioners of the county where the land is situated. The commissioners of such county, and not the joint body, are to determine the compensation and damages to be paid such applicant. From such award an appeal lies under secs. 12 & 13 of said act as if said ditch was wholly within that county. 4. It is the public health, convenience or welfare of the community to be affected by the proposed ditch, and not that of the public at large, that is to be regarded in the construction of a ditch. Hence, if it appears that the proposed ditch will be "conducive to the public health, convenience and welfare of the neighborhood "through which it will pass, the commissioners are authorized to construct the same.

5. When the commissioners have apportioned the cost and expenses and amount of work to each land owner, and have on due notice heard exceptions thereto, and confirmed such apportionment, it will be presumed in the absence of proof to the contrary, that such apportionment is just and fair and was made with reference to benefits to be derived from the improvement.

Error to the District Court of Putnam County. The object of this proceeding in error, is to reverse the judgment of the district court, dismissing plaintiff's petition.

This petition was to enjoin the Commissioners of Putnam and Paulding Counties, and others, from constructing a certain ditch, and from assessing against plaintiff's lands the cost of constructing six hundred feet thereof, that being the distance allotted to him for construction.

This proposed ditch was partly within Putnam and partly within Paulding County, and was located and established by a joint session of the commissioners of the two counties. It is alleged ceedings of the Boards in joint session are withas the grounds for an injunction, that said proout authority of law and void for reasons which will be stated in the opinion.

The answer admits the location and establishment of the ditch, claims the proceedings valid and takes issue on all the other allegations of

the petition. On the trial a bill of exceptions was taken setting out all the evidence. To support the issues on plaintiff's side he offered a copy of the records, "from the ditch records of Putnam County," and rested.

No other evidence was offered on either side. JOHNSON, J.

The proceedings to locate and establish this ditch were had under Sections 1, 4, 5, 11 and 12, of vol. 68, O. L. p. 60, and amendments to Sections 2, 3, 13, 14, and 22, 70 O. L. 79.

Section 22 contains the authority for the ac tion of the two Boards. It reads: "Sec. 22. In all cases where any proposed ditch shall be in more than one county, the application shall be made to the commissioners of each of said counties, and the county surveyor or engineer must make a report for each county, and application for damages must be made in the county where the land is situated, and a majority of the commissioners in each county when in joint session, shall be competent to locate and establish the ditch * *

1. It is objected that said section is unconstitutional, because it attempts to confer jurisdiction on the county commissioners, beyond the limits of their respective counties for which they were elected.

It is admitted there is no provision of the Constitution expressly prohibiting such a statute, and this admission is a sufficient answer to the objection. All legislative power, not prohibited, is vested in the legislature. It is clearly a legislative power to provide for the construction of ditches where they are conducive to the public health, convenience or welfare, and to designate such agencies as are appropriate, and not prohibited, to carry out the provisions of the act. This section provides, that when the proposed ditch is in two or more counties, it must be established by the boards of commissioners of the respective counties, in joint session, and it requíres a quorum and concurrence of each board, to make the necessary orders. As amended, (70 O. L. p. 82), this section requires as the foundation of joint action, that the petition must be filed in each county, and the proceedings, preliminary to the joint action, such as the bond and notice as required by sec. 2 of the Act, 68 O. L. 60, to be had in each, the same as if the ditch was in a single county. The joint action consists in the finding that the provisions of law, preliminary to the consideration of the petition on its merits, have been complied with, a finding that the proposed ditch is conducive to the public health, convenience or welfare, the location of the same if they so find, and the apportionment of the costs and work of construction. If damages are claimed, the application therefor must be made to the commissioners of the county where the land is situated. The joint session has nothing to do with the assessment of damages for property appropriated. It locates and establishes the ditch and apportions the cost of its location and construction, and damages if any,

are

to the persons owning lands through or in the vicinity of which the proposed ditch is to be constructed. As the ditch is an entirety, and lies in more than one county, the statute requires the concurrent action of each county to locate and establish it, and to apportion among land owners its aggregate cost. A majority of each board, in joint session, and not a majority of the joint board, is required. Hence, each board acts as an integral part of the joint body. The assumption that the commissioners of either county are acting and exercising authority over the internal affairs of the other county, is therefore not well founded. Engle v. Boards of Commissioners, 25 Ohio St. 425.

2. Again, it is objected, that Section 22 is unconstitutional and the proceedings void, because no provision is made for jury to assess the compensation for lands appropriated.

It was held, in Engle v. The Board of Commissioners, 25 Ohio St. 425, that no appeal was provided from the final action of the joint boards in establishing a ditch in more than one county. It was not however held, that no appeal would lie from an allowance of compensation and damages, made by the commissioners of the county where the land was situated. We think this section, when construed in connection with other provisions of the same statute, does provide for such an appeal from the action of the commissioners allowing compensation and damages for land appropriated. In proceedings under this section, application for damages must be made in the county where the land is situated, and the commissioners of such county must act thereon. It is no part of the duty of the joint boards, to assess such damages and compensation.

Section 13, provides for an appeal from this action to the probate court, where the same provision is made for a jury, as in other cases, under the Act of April 30, 1852. A constitutional jury is thus provided. It is true, no appeal lies from the order of the joint boards establishing a ditch, yet one is provided from the separate and independent action of each board in allowing compensation and damages. After all questions of damages and compensation are settled, the boards in joint session award to land owners their proper proportions of the costs and labor of construction.

3. These proceedings are said to be void, because the petition on which they are founded was not sufficient to warrant action, and because the findings of the joint sessions are alike defective.

The petition states, and the order establishing the ditch finds that the proposed ditch, "will be conducive to the public health, convenience and welfare of the neighborhood." The statute (Sec 1) authorizes such action, "when the same will be conducive to the public health, convenience or welfare." The record shows that this proposed ditch extended something near five miles in the two counties. The finding is, that it will be conducive to the public health, convenience and welfare of the neighborhood, that is, of the neighborhood along the entire line of the proposed ditch.

The object of the law is, to provide means for drainage wherever the public health, convenience or welfare requires it. It is not essential that the public at large shall be benefitted, but only that part of the public affected by want of proper drainage or by the improvement to be made. The injury for want of drainage and the benefits to be derived from the ditch, are necessarily local in their nature. Public welfare, health and convenience, in this connection, are terms used in contradistinction from a mere private benefit. A nuisance is said to be public, when it affects the surrounding community generally, and impairs the rights of neighboring residents as members of the public, and private when it specially injures indíviduals. Abbott's Law Dictionary, Title Nuisance.

The finding by the commissioners in joint session, that the proposed ditch will be conducive to the public health, convenience and welfare of the neighborhood, is a finding, that the community generally are benefitted, and not merely the lands of the petitioners or others. It is a finding that it is for the public welfare as distinguished from a mere private advantage.

4. It is further claimed that no notice was given such as the statute requires, as a condition precedent to the order establishing the ditch, and also that plaintiff had no actual notice.

The petition alleges a want of such notice. This is denied by the answer. The burden of proof was on the plaintiff. He offers in evidence a copy of the proceedings in Putnam County only. What was done in Paulding does not appear. It can only be inferred from the recitals in the record made in Putnam County, and in the action of the joint boards. These show notice by publication in Putnam County. For aught that appears the record of Paulding County shows a like notice in that county. If they do not the onus was upon plaintiff to show it. The auditors of each county are required to keep a record of all proceedings had in each case, (Sec. 19). This record when properly kept, would include the separate action of his board, preliminary to the joint action, the joint action, and all subsequent action of his own board. The record of Putnam County would not therefore show the action of the Commissioners of Paulding County, except when in joint session.

The plaintiff has therefore failed to show, that there was no notice by publication, in Paulding County, or that he did not have actual notice of these proceedings. As this is an action to enjoin proceedings and not in error to reverse them, the burden is upon plaintiff to make good the allegations of his petition.

5. The last objection we shall notice is that the record fails to show an order apportioning the work to be done according to benefits to be derived by the lands along the line.

Sec. 13, as amended, (70 O. L. 80), provides that the commissioners shall make a just and fair estimate of the average cash value of the construction per linear rod, cubic yard or foot of earth, and every section or allotment of such

ditch, and apportion the cost of the location thereof, and labor of constructing the same, and award to each person owning lands through and in the vicinity of which it is proposed to pass, as shall be just and right according to benefits to be derived by constructing the same.

They shall specify the time for the payment of costs and the time and manner in which the labor is to be performed, and appoint a day to hear exceptions to such apportionment. The auditor shall give notice of such apportionment, showing the names of the owners, each parcel of land assessed, number of feet each is to construct, estimated value for construction, and the expenses including damages and compensation, if any, that have been awarded. On the day named in such notice, the commissioners shall meet, and if exceptions have been filed, they shall hear the same upon sworn evidence offered by any party. On such hearing, and an actual view if they desire, they may confirm or change the apportionment as in their judgment is just. (700. L. 81-2). The petition charges that the apportionment of cost of locating, and the amount of work each was to do, was made without any estiamte of the cost of construction and without regard to the benefits to be derived therefrom. This is denied by the answer. The record shows the apportionment as required by Section 13, as published in the Putnam County Sentinel, by the auditor of that county. We may assume that like notice was also given in Paulding County.

The time therein fixed for hearing exceptions was fixed, as well as the time for completing the work. At the time fixed for hearing exceptions the two boards held a joint session, certain exceptions were filed and after mature consideration they were overruled and the apportionment was confirmed. The time for doing the work having expired, the part alloted to plaintiff, was sold to McPheters, one of the defendants, pursuant to notice.

The record is silent as to the estimates made of cost of construction, and of the method adopted to apportion the work. It does show the apportionment in detail. Whether it was in all respects just and fair, with respect to benefits to be derived. These two boards were created a tribunal to hear exceptions upon sworn testimony and after publication of due notice. The record shows they performed that duty, and until the contrary appears, we must presume their apportionment was just and fair and made with reference to the benefits to be derived.

6. Other objections are urged against these proceedings, but as they relate to their regularity, rather than their validity, we have not regarded it as necessary to consider them in this connection.

Judgment affirmed.

This case will appear in 37 O. 8.]

Digest of Decisions.

CALIFORNIA.

(Supreme Court.)

TEUNENBROOCK v. SOUTHERN PACIFIC COAST RAILROAD COMPANY. December, 1881.

For

Railroad Company-Right of Way-Negligence. the free use of its passenger and other trains a railroad company is entitled to the possession of its roadway. The traveling public has no right to the possession of it, nor the use of it, except at crossings and other places of public passage. But if persons traveling on a railroad track are seen in time to avoid danger, by warning them off by proper signals, such as ringing a bell, sounding a whistle, slowing down, or stopping the train, it is the duty of the officers of the train to resort to such means to prevent injury to the life or limb even of trespassers on the road.

Engineer-Whistle.-No duty is imposed upon the engineer of a railroad train to sound a whistle in the lawful use of the roadway, except in approaching erossings on a road, or other places of public passage, or in coming to stations, or into towns or cities. Accordingly, Held, defendant was not responsible for injuries occasioned while it, without fault, was running its train at the customary speed and without sounding a whistle, at a portion of the road not approaching a crossing or place of public passage, but upon a trestle bridge crossing a ravine about a mile from a station. Held further, plaintiff was guilty of contributory negligence.

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titled to the crops and they cannot be taken upon an execution against the husband.

The wife is the head of the family when the husband abandons it.

Warner and another v. BeeBE. January 18, 1882

Chattel Mortgage-New Trial.-Where an instrument transferring title by way of security has been recorded as a chattel mortgage but has not been renewed as such except by an oral understanding that later dealings between the parties shall be conducted on the same footing, there is no change of legal ownership in the property.

A mortgagee of chattels cannot base an action of assumpsit upon his interest as such mortgagee.

A new trial must be granted where a general verdict has been rendered upon a charge embracing an unsound theory and it is uncertain whether the error did or did

not affect the result.

RUST v. CONRAD. January 18, 1882.

Specific Performance.-The specific performance of contracts is not a matter of right, but rests in the sound discretion of the court.

If the contract is unequal; if the consideration is inadequate; if it contains unreasonable provisions, or if there are indications of overreaching or unfairness, a court of equity will refuse to interfere for specific performance, and leave the party to his remedy at law.

If the case is one in which either the provisions of the contract or the law would permit to a party the option to nullify a decree for specific performance, should one be granted, the court will not do a vain thing by granting one.

Where therefore a contract for a lease contained a provision that the lease, when given, might at any time be terminated by the lessees, either as to the whole of the land or a part thereof, on giving 30 days' notice; held, that this option is a conclusive answer to a bill by those who would be lessees, for the specific performance of the

contract.

A license to two or more is in general revoked by the death of one of the licensees.

L. S. & M. S. RY. Co. v. BANGS. January 18, 1882. Negligence. It is negligence for a passenger to leap from a moving train for the mere purpose of getting off at a station where the train should stop, but does not do so, even though he takes that course in order to save others distress on account of his absence.

It is not necessarily negligence to take a choice of risks or to do, without freedom of choice, an act involving danger; but it is negligence to risk life or limb merely to escape inconvenience or mental vexation. One cannot recover damages for a personal injury to which he contributed by his own negligence.

In re CANNON. January 18, 1882.

Extradition.-A requisition was made by the governor of Michigan upon the governor of Kansas for one C., under a complaint for seduction. After his delivery to the authorities of this state he was brought before a justice upon a criminal warrant, and the hearing adjourned for several days, C., in the mean time being out on bail. Before the adjourned day proceedings were commenced against him by the same prosecuting officer for bastardy, and C. refusing to plead to the merits, claimed that he could only be prosecuted for the offence for which he had been extradited. He was required to give recognizance to appear at the next term of the circuit court, and refusing so to do was imprisoned. The charge of seduction was not prosecuted, ít having been discovered after the extradition it could not be maintained. Upon habeas corpus, held, that the arrest for bastardy and prosecution of the bastardy proceedings, under the circumstances, were improper, and C. should be discharged from custody.

GOEBEL AND ANOTHER v. LINN AND ANOTHER. January 18, 1882.

Contract.-Defendants were large brewers and bad a

contract with an ice company to supply them with ice during the season of 1880 at one dollar and seventy-five cents a ton, or two dollars if the crop was short. The contract was made in November, 1879. The following winter was so mild that the ice crop was a failure. In May the defendants were notified by the ice company that no more ice would be furnished them under the contract. Defendants had then on hand a considerable amount of beer that would be spoiled without ice, and under stress of the circumstances they made a new arrangement with the ice company, and agreed to pay three dollars and a half per ton for the ice. At this rate ice was received and paid for afterwards. A note given for ice at this rate in October being sued, defendants disputed its validity, claiming that it was obtained without consideration and under duress.

Held (1) that it was entirely competent for the parties to enter into the new arrangement if they saw fit.

(2) That the note was not without consideration, being given for ice received.

(3) That the refusal of the ice company to perform its contract, and the exaction of a higher price, was not legal duress.

PARSELL v. PATTERSON AND ANOTHER. January 18, 1882.

Assignment.-When a general assignment for the benefit of creditors is assailed as fraudulent in fact, and there is some evidence that a portion of the assets was not delivered over to the assignee, it is competent, in support of the assignment, to show that the assignee was not aware anything was retained, and acted himself in entire good faith.

An assignment is not necessarily to be held fraudulent and void because some sinall portion of the assets was withheld from the assignee. If the assignment is legal on its face and the assignee is acting in good faith, he may by proper remedies pursue and recover anything wrongfully retained from him.

When, in opposition to an assignment, it is shown that one of the assignors did not deliver to the assignee possession of a house and lot to which he had title, it is competent for the assignee to show, on the other hand, that the property was encumbered to its full value.

LELAND V. KAUTI. January 18, 1882.

Witness. In a civil action for an indecent assault it was held proper to cross-examine the defendant as to whether he was ever arrested on a criminal charge made by a woman, and whether he settled it by payment.

Where the defendant in a civil action" for an indecent assault appears as a witness therein, it is admissible for its bearing on his credibility, to cross-examine him as to the antecedents of his life, if the questions do not call for self-crimination.

MINNESOTA.

(Supreme Court.)

CITY OF WINONA U. MINNESOTA RAILWAY CONSTRUCTION Co. January 10, 1882.

Practice Damages.-Applications for amendments of pleadings are addressed to the discretion of the court, and its action will not be set aside unless it is apparent that the court has abused its discretion. The question whether the court has exceeded its discretion in allowing amendments to pleadings before the trial may be reviewed upon appeal from the judgment.

The plaintiff had executed its negotiable coupon bonds, which, by their term, bore interest at the rate of 6 per dent. per year, and had deposited them in escrow, to be delivered to the defendant only upon the performance of certain conditions.

The defendant had wrongfully procured the delivery of the bonds, without the perforinance of the conditions, and had sold and disposed of them for a valuable consideration.

Held, that the measure of plaintiff's damages (the bouds still outstanding) is the amount of the bonds, so procured and negotiated, at the time of the recovery, interest being computed at the rate of 6 per cent. upon the principal of the bonds to the date of said judgment, and

also upon coupons maturing before the judgment at the legal rate of 7 per cent. from the time of their maturity until judgment.

STATE OF MINNESOTA v. RING. January 13, 1882. Embezzlement.—In an indictment for embezzlement by a county treasurer committed by a refusal to deliver to his successor in office the moneys in his hands, it is not necessary to set forth all of the steps by which such successor became county treasurer. It is enough to allege that he was duly appointed by the board of county commissioners. duly qualified, and thereby became the successor in office of the defendant, without alleging that a vacancy existed in the office, by reason of which the right to make such appointment existed. But if the indictment purports to set forth particularly the means by which the appointee became county treasurer, and some event, legally necessary to that end, is not averred, the particular allegations modify and control the general averment of the ultimate fact, and such fact is not well pleaded.

The court may exclude from the jury one who is shown to have an insufficient knowledge of our language to enable him to intelligently try the cause, although no challenge was interposed for that reason."

It is not necessary that an indictment for embezzlement of money set forth the whole amount of money received by defendant, a part of which is alleged to have been embezzled. Under an indictment alleging the receipt of a gross sum "exceeding" a sum named, proof may be made of the receipt of any amount, although it greatly exceed the sum thus named.

The semi-annual official statement of moneys in the county treasury, required by statute to be made by county treasurers, and shown to have been executed by the defendant, is competent evidence of the amount of money in his hands, although the amount of noney therein expressed is only indicated by figures, without other index of denomination than the separating of the two right-hand figures in a column from the others by a perpendicular line.

An appointment to a public office, originally coupled with a condition that was never performed, becomes a valid appointment when the appointing power subsequently, having authority to do so, dispenses with the condition.

A county treasurer is, under the law, chargeable as with money, the amount of all taxes paid to him, although he may receive payment in certain orders. The amounts so charged to him, and upon trial proved to have been paid, are presumed prima facie to have been received in money; and it is for the defendant, if he would overcome this presumption, to present proof of the manner of payment.

The stub duplicate of tax receipts made by a county treasurer, as required by law, are evidence of the receipt of the tax represented thereby, although they have never been returned by him to the auditor, as he is required to do.

A person appointed in regular form to a public office is presumed to have been eligible to office, in absence of proof to the contrary.

The improper neglect or refusal of a public officer to deliver to his successor in office all money remaining in his hands, upon demand therefor, is, under the statute, embezzlement per se of such moneys, although no particular sum was demanded.

NEBRASKA.

(Supreme Court.)

GREEN v. CROSS. November, 1881. Assignment-Attachment of property assigned for benefit of creditors-Deed executed in another State-Certificate of acknowledgment.-B., a resident of Illinois, made an assignment of all his property, including lands in this State, for the benefit of creditors. Held, that a resident of that State, claiming the benefit of the assignment, could not maintain an attachment levied after the assignment of the lands in this State. A deed of lands in this State, made in another State, must be executed according to the laws of such State; and if no witness is required to the deed by the laws of such State, the deed is effectual to pass title without being so attested.

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