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MCILVAINE, J. Held:

1. The act of March 29, 1867, and the acts amendatory and supplementary thereto, commonly called the two mile road improvement laws, authorize the commissioners of counties, for the purpose of raising money necessary to meet the expenses of road improvements, "to issue the bonds of the county," and thereby create a debt of the county in its quasi corporate capacity, notwithstanding they also require the commissioners to assess the cost and expense of the improvement upon the lands benefited thereby and situate within two miles thereof. 2. When from any cause, sufficient money be not realized from such local assessments to pay the debt so created, it is the duty of the commissioners to levy a tax therefor upon all the taxable property of the county. 3. A purchaser of such bonds, who has no actual knowledge of any defect in their execution, is not bound to look beyond the findings and record of the coinmissioners, for the purpose of ascertaining whether conditions precedent to their execution have been performed. Peremptory writ awarded.

66. Mary Sidener v. James E. Hawes, Adm'r, et al. Error to the District Court of Greene County.

JOHNSON, J., Held:

1. The creditors of an estate are entitled to have the same settled in due course of administration, and in case of a sale of real estate to pay debts, that it be made by order of a competent court. It is no bar to an action by an administrator to sell land to pay debts, that the heir has, without an order of court, sold the same at private sale and applied the proceeds in satisfaction of preferred claims.

2. An order of sale of real estate to pay debts, made by the court of common pleas on a petition which states facts sufficient to warrant such an order, will not be reversed for want of a journal entry showing that the facts stated in the petition were found to be true. In such a case the reviewing court will presume that the judgment was founded on proper proof.

3. If an heir, to whom lands descend subject to the debts of his ancestor, sells the same with covenants of general warranty at private sale, without administration on his ancestor's estate, to a bona fide purchaser who applies the purchase money to discharge liens thereon created by the ancestor, and to the payment of preferred claims, such purchaser is in equity entitled, in the distribution of the purchase money, to be subrogated to the rights and equities of the holders of such claims.

4. In a proceeding to sell land to pay judgment creditors pending in the court of common pleas, it is competent for the heir, who still retains an interest in the subject matter, by cross-petition to attack such judgments on the ground of fraud.

5. A sale of the real estate by the heir with covenants of general warranty, before the commencement of proceedings to sell the same to pay debts, where the purchase money is applied to the payment of preferred claims thereon, does not thereby divest himself of such an interest in the subject matter, so as to defeat his right to file such cross-petition, and to protect his vendees.

6. If the allegations of the cross-petition implicates the administrator, as well as the judgment creditors in fraudulently obtaining such judgments, they are as against the heir, united in interest as to the subject matter of the controversy.

7. On error by the heir to reverse a judgment dismissing such cross-petition, service upon the administrator within the time fixed for the commencement of such proceedings, saves the action as to his co-defendants so united in interest, though not served within that time. Judgment reversed.

42. The State ex rel. v. Kiese wetter, Auditor of Franklin County. Mandamus.

WHITE, J., Held:

1. Under Sec. 700 of the Revised Statutes, prior to its amendment March 18, 1881, patients, after their admission into the asylums of the State for the insane, were clothed at the expense of the State. Since the amendment, the expense of furnishing such clothing is, under Sec. 631, chargeable on the estates of the patients or on those who would be legally bound to furnish it, if they were not in the asylum.

2. If the duty of supplying patients with clothing as required by Sec. 631, should not be performed, the remedy in such case of failure, is for the institution to furnish it under Sec. 632; and for the amount so furnished, it is to be re-imbursed as therein provided.

As to the clothing furnished by the State prior to the amendment of Sec. 700, the writ is refused; and as to that subsequently furnished a peremptory writ is granted.

24. Pittsburgh, Cincinnati & St. Louis Railway Company v. George Henderson. Error to the District Court of Harrison County.

OKEY, C. J.

1. Where the superintendent of a railroad company has made an order as to the management of a particular train, which order will be reasonable or unreasonable according to the circumstances under which it is to be enforced, the question whether in any particular case such order is to be deemed reasonable or unreasonable is a question of mixed law and fact, to be determined by the jury under proper instructions.

2. Where an action is brought against a railroad company by one of its employes to recover damages for personal injuries sustained by the enforcement of an order made by the superintendent of the company as to the management of a particular train, which order was unreasonable and the enforcement of the same was dangerous to such employe, the fact that the negligence of a fellow servant of the injured person, while executing such order, contributed in producing the injury, affords no defense to the action.

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EDITORS OHIO LAW JOURNAL:

In your careful regard that a just division of credit should be given in judicial charges to juries, to all sources from which the law is derived, you did not reflect in charging Judge Moore with appropriation from Judge Davis' charge in the Coleman case, that Judge Moore had not furnished his charge for publication, nor claimed any originality in it, but merely fitness and accuracy of law in what directions he gave to the jury. And hence possibly he did not indicate by proper quotation marks the particular sentences he adopted or the authorities he cited. But without any personal knowledge I venture to assert that when Judge Moore made his charge he had never seen or read that of Judge Davis to which you refer, and did not quote it. He may have made use of Judge Burchard's charge in the note to Clark v. The State, 12 Ohio Reports 483, 494-5, familiar to the profession, but no one would on consideration predicate a charge of plagiarism on that fact. And I take higher ground, that the whole range of the law is the common property of judges for the instruction of juries, limited only in this, that the law given shall be applicable to the facts of the case, and necessary to determine the issue joined between the parties, and this without parade of authorities cited which would only be a pedantic show of learning, and useless to the jury.

What is called originality, which is a merit in the composition of a sonnet or an essay on asthetics, is not such in delivering the law to a jury in a nisi prius trial, though correctness in the law delivered as applied to the facts is so. The principles of law cannot well be separated from the language of the authorities in which they are expressed, and while originality may be found in clearness of statement, and in the orderly and logical arrangement of the subject matter of the charge given, to essay it in the statement of the principles of law is scarcely what a careful judge would ordinarily aim to do. Law deals with fixed principles and for a century or centuries these are couched in nearly identical formulas of statement, except as it may be necessarily applied to new conditions of life, industries and pursuits, or is modified by statutes. It is based on expedient and practicable morals, at least in so much of its criminal system or codes

as include crimes malum in se; and these do not change with each new hypothesis in science, or with the latest variations of periodical literature. And the plagiarism you assert was in the statement of matter of law. But perhaps your animus was directed against the law as announced by the judge, in that it did not follow the precedent of the Washington leading case, in which a distinguished assassin coolly and safely shot to death his unsuspecting victim, for alleged improper intimacy with his wife, and when arraigned, set up that intimacy as a defense, and doubtless emotional insanity, to excuse his crime. And he found a convenient jury, guided I presume by a judge whose charge in that case was unquestionably free from the charge of plagiarism from any law human or divine, to acquit him of all wrong in what he had done. And then the distinguished slayer of his fellow man, took back his erring wife, good as new, to his bed and bosom. Judge Moore did not in this very similar Cole-Harmon case follow that peculiar modern precedent, though it has been urged in desperate cases ever since. He does not seem to appreciate that a man has such ownership in a worthless wife, (while as you not long since indicated, divorce was not at all difficult), that he may continue to live with her, and at his convenient leisure kill whoever he fancies that her worthlessness has tempted to adultery with her. Certainly Judge Moore's charge states correctly the law of Ohio as declared by our Supreme Court, whether it coincides with that of Judge Davis or not, which I do not know. But from what you published of Judge Moore's charge-if liable to your intimation of plagiarism from Davis, the latter judge is chargeable with following the language of older authority than either, and most likely, the case of Clark v. The State, already referred to. But neither is chargeable with what is properly called plagiarism. They only did what they had a right to do Besides the ruling of the highest court in New York, reversing Judge Davis' decision in the case you refer to, is not the law of Ohio, and it is to be hoped never will be. It denies to society needed protection against "cranks," incomplete men, of abnormal minds, the most dangerous class of society, by excluding the preventive example of punishment from reaching them, to restrain from crime, as under that ruling they will be conscious that they are rarely likely to be found by sympathetic juries sane beyond a reasonable doubt when charged with murder, and ably defended. That class is by the New York rule emancipated from responsibility for grave crime, which is only to be made effectual upon that portion of society, the clearly sane and sensible class, those who have the least tendency to commit offenses against humanity. The fact is, if we must travel east for our law on this subject, I prefer the rulings in Massachusetts to those of New York, sustained as the former are by those of the English Courts. As to your criticisms, I presume Judge Moore is indifferent. I have no right to speak for him, and

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Our plain spoken correspondent no doubt intended to render to Judge Moore a friendly service when he penned the foregoing in his defence. It will not be apparent to that gentleman however, that his position has been rendered any more pleasant by the well meant endeavor. The basis of the remarks and conclusions of " J. M." seem to lie in his belief, as he admits, that we charged Judge Moore with plagiarism of the law, or of the principles of law only, as he gave them in his charge to the jury.

We would be narrowminded indeed if we could make such a ridiculous charge. We are very well aware of the fact that no credit need be given where a legal principle is announced; but we have always believed that where the exact language of another is used in the discussion of any question, whether in metaphysics, religion or law, that custom as well as honesty demanded at least a recognition of the mind that conceived and the skill that formulated the new thought or expression.

Those who quote an aphorism so old even as "Thou shalt not steal" generally refer in some way to the Author of that ancient inhibition, and those who give expression to their own thoughts in the language of another rarely fail to give the proper credit by reference at least. But those who take not only the thoughts but the language also of another, in poesy or prose prediction or conclusion, history or logic, never (hardly ever) fail to give to that other the credit. Therefore to show our corresponproper dent that we did refer to both thought and language in speaking of the adaptation of Judge Davis' charge, we quote a sentence from each.

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The doctrine that a crim- The doctrine that a criminal act may be excused upon inal act may be excused upon the notion of an irresistable the notion of an irresistable impulse to commit it, when impulse to commit it, when the offender has the ability the offender has the ability to discover his legal and to discover his legal and moral duty in respect to it moral duty in respect to it has no place in the law; and has no place in the law; and there is no form of insanity there is no form of insanity known to the law as a shield known to the law as a shield for an act otherwise criminal, for an act otherwise crimiin which the faculties are so nal, in which the faculties disordered or deranged that are so disordered o'r deranged a man, although he perceives that a man, although he sees the moral quality of his acts the moral quality of his act as wrong, is unable to control as wrong, is unable to conthem and is urged by some trol them and is urged by mysterious pressure to the some mysterious pressure to commission of the act, the the commission of the act, consequences of which he an-the consequences of which ticipates and knows. The anticipates and knows.

A careful comparison of these two sentences will reveal the fact that the two judges have a singular identity of thought and expression.

We find no fault with the law relating to homicide as laid down by Judge Moore, and do not claim that the seduction of a wife affords any excuse or justification of the killing of the seducer by that wife's husband. Indeed we are not convinced that any excuse or justification is required. On the contrary we are not quite sure that it is not the christian duty of any husband to kill the man who deliberately seduces his wife from her virtue and purity, just as we believe it to be the duty of mankind to destroy the animals in the form of men who perpetrate rapes upon little girls or grown up girls either.

Judges may look with a degree of allowance upon the seducer of other men's wives, and influence juries to convict the man who properly takes their worthless lives; but the restraint thus imposed upon injured husbands will hardly give very much aid and comfort to professional libertines and seducers. We however desire to be understood, that the avenger shall be certain of the purity of the victim, the crime of the seducer, and then of his own skill as a marksman. These properly combined will leave no room for cavil and no necessity for tears.

ROAD IMPROVEMENTS-BONDS.

SUPREME COURT OF OHIO.

OHIO EX REL. URIAH HORSEMAIN, ADM'RS

V.

THE COMMISSIONERS OF FAYETTE COUNTY.

February 28, 1882.

1. The act of March 29, 1867, and the acts amendatory and supplementary thereto, commonly called the two mile road improvement laws, authorize the commissioners of counties, for the purpose of raising money necessary to meet the expenses of road improvements, "to issue the bonds of the county," and thereby create a debt of the county in its quasi corporate capacity, notwithstanding they also require the commissioners to assess the cost and expense of the improvement upon the lands benefited thereby and situate within two miles thereof. 2. When from any cause, sufficient money be not realized from such local assessments to pay the debt so created, it is the duty of the commissioners to levy a tax therefor upon all the taxable property of the county.

3. A purchaser of such bonds, who has no actual knowledge of any defect in their execution, is not bound to look beyond the findings and record of the commissioners, for the purpose of ascertaining whether conditions precedent to their execution have been performed. Peremptory writ awarded.

Mandamus.

This proceeding is prosecuted to compel the board of Commissioners of Fayette County to levy a tax to pay a balance due upon certain bonds issued by them and known as "The State road bonds."

The class of bonds so known, amounting to $35,000, was issued by the commisioners to Grove & Coffman, contractors, to pay for a certain road improvement, under the act of March 29, 1867 (64 Ohio L. 80), entitled "an act to authorize county commissioners to construct roads on the petition of a majority of the resident land-holders along and adjacent to the line of said road, and to repeal an act therein named" and the acts amendatory and supplemental thereto.

The commissioners to whom a petition for the road improvement had been duly presented, proceeded regularly under the statute to construct the road, finding, among other things, that a majority of the resident land-holders of the county whose lands were reported as benefited and ought to be assessed, had subscribed the petition, and issued bonds as aforesaid to the contractors, who completed the construction of the road in accordance with their contract in the year 1870.

For the purpose of satisfying the bonds so issued, the commissioners caused an assessment to be made upon the lande benefited and situate within two miles of the road. The amount so assessed was sufficient to pay all the bonds; but certain of the land-holders whose lands were assessed obtained a perpetual injunction against the enforcement of the assessment against their lands, (see Hays v. Jones, 27 Ohio St. 218), so that, after applying the amount collected on the assessment, twenty-nine of the bonds, so issued, for $500 each, were left wholly unpaid and unprovided for.

Nine of these last named bonds, before maturity, had, in the usual course of business, been endorsed and transferred by Grove & Coffman to relators' intestate, Uriah Horsemain.

Upon this state of facts, it is submitted by the defendant that they have no power to provide for the payment of relators claim by a levy of taxes either upon the taxable property of the county, or of the road improvement district. MCILVAINE, J.

If the defendants have power to provide for the payment of relator's claim by taxation, their duty to do so is not questioned. Nor is the power of the commissioners to provide, by taxation, for the payment of the debts of the county, disputed. The principle contention, therefore, is, does the claim of relators constitute a debt ci the county? The form of the bond, if that alone were to be considered, would clearly indicate an obligation on the part of the county. The following is a copy: "No. 131.

$500.00.

STATE OF OHIO, County of Fayette. "Be it known that the County of Fayette, in the State of Ohio, hereby acknowledges to owe Grove & Coffman, or bearer, the sum of five hundred dollars, payable at the office of the Treasurer of said Fayette County, on the first day of March, 1871, with interest at the rate of seven per centum per annum, from the first day of September, 1868, payable semi-annually at said

Treasurer's office on the 1st day of March and September in each year on the surrender of each coupon hereto annexed-attested by the Auditor of said county.

"This bond is issued in pursuance of and according to an act of the General Assembly of the State of Ohio, entitled, 'an act to authorize the county commissioners to construct roads on petition of a majority of the resident land-owners along and adjacent to the line of said road, and repeal an act therein named,' passed March 29, 1867, and the acts amendatory and supplementary to said act, passed March 31, 1868, and May 16, 1868, respectively.

"In testimony whereof, the Commissioners of said County of Fayette, and as such commissioners have hereunto set our hands and names, and affixed the seal of said county, this 4th day of November, 1869.

A. MCCANDLESS, ALLEN HEGLER,) Commissioners Auditor of WM. CLARK, of said Fayette Fayette County, O. ENOS REEDER, County, Ohio. Registered Nov. 4, 1869."

The question of the power of the commissioners to obligate the county, is, however, raised on the statutes to which reference is made in the bond. The holder of the bond is notified by its face, that the power assumed by the commissioners is to be found in these statutes. Section 7 of the statutes provides, "that for the purpose of raising money necessary to meet the expenses of such improvement, the commissioners of the county are hereby authorized to issue the bonds of the county, payable in instalments, or at intervals not exceeding in all five years, bearing interest at the rate not to exceed seven per cent. per annum, payable semi-annually, which bonds shall not be sold for less than their par value." the language of the statute here quoted, perhaps no one would deny that the debt evidenced by the authorized bond is the debt of the county in its quasi corporate capacity-indeed, the language is not susceptible of any other meaning, but, inasmuch as the same section provides for an assessment upon the lands specially benefited and lying within two miles of the improvement to meet the payment of the interest and principal of the bonds, it is contended, that no other

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mode or manner of taxation can be resorted to for the purpose of paying the bonds. However plausible this contention may be, we think it cannot be maintained. That the legislature might have so provided, we don't deny, but if such was the intention, it should have been expressed in very clear and unmistakable terms. Such terms were not used, nor is such inference clear. On the other hand, the liability of the county in its quasi corporate capacity is expressed in apt and unmistakable words; and if for uch liability a portion only of the taxable property of the county can in, any event be taxed, such intent on the part of the legislature should have been expressed in like apt and unmistaka

ble terms.

As between the county and the taxing dist created by the statute, to wit: the territory

within two miles of road improvement, it cannot be doubted, that the intent of the statute was to impose the burden of the improvement upon the latter, but as to the creditor holding bonds issued to meet the expenses of the improvement, the faith of the county to the extent of all its taxable property was pledged by the express authority given to the commissioners to issue therefor, "the bonds of the county." Whenever, therefore, payment of the bonds cannot be provided for by local assessment under the statute, it is the duty of the commissioners to make provision for their payment, as for the payment of other debts of the county, by a levy upon all the taxable property of the county.

Again, although the question is not raised by the pleadings in this case, it is suggested, that, inasmuch as the power of the commissioners to make improvements under the act of March 29, 1867, and its amendments depends on the fact that the petition for the improvement be subscribed by a majority of the resident land-holders whose land was reported benefited thereby, which fact did not exist in the case before us, as was adjudged in the case of Hays v. Jones, 27 Ohio St. 218, therefore the bonds in question were unauthorized and void. True, it was found in that case that the jurisdictional fact named was wanting, and therefore it was adjudged that the defendants, parties in that case, be forever restrained from enforcing the collection of the special assessment against the property of the plaintiffs in that action. But the relators, or their intestate, though he purchased the bonds during the pendency of the action, were not parties to it or bound by its result.

The jurisdictional fact in question is thus stated in the answer of the defendants to its proceeding:

"During said proceedings, and before the final order, a majority of the land-holders resident in said Fayette county whose lands had been reported for assessment, as aforesaid, had signed said petition for said improvement.

"That in the month of July, 1868, the said report of said viewers and surveyor came on to be heard before the said Board of County Commissioners, at which time a number of said petitioners presented a remonstrance to said Board asking that said improvement be not made, yet the said commissioners, decided that a majority of the land holders whose lands had been reported for assessment had signed the petition, and then made the final order for said improvement on the day of July, A. D. 1868, and such further proceedings were had that the contract for making such improvement was awarded to Grove and Coffman, to be paid for in the bonds of Fayette County, of which the said bonds mentioned in the plaintiffs' petition constituted a part, and said improvement completed in the year 1870, according to the contract and specifications therefor."

The rights of the relators, as we conceive, do not depend upon the fact whether or not a majority of the land-holders had subscribed the pe

tition for the improvement. That their intestate purchased the bonds before maturity, for a valuable consideration and without actual knowledge of any defect in their execution is conceded. Of course, to the extent he was bound to inquire as to the regularity of their execution, he is chargeable with any information which reasonable diligence would have revealed. He was bound to know that the bonds were issued under the authority of certain statutes. The face of the bond, gave him this information. It was certified in the bond that it was "issued in pursuance of and according to" the statute; and there are authorities which hold that an endorsee may rely on such recital, without further inquiry as to the regularity of the execution. State et al. v. Robertson et al., 27 Ohio St. 96; Warren v. Marcy, 97 U. S. 96.

But conceding that such recital does not relieve the purchaser of such bonds from further inquiry as to the performance of conditions precedent to their execution, an examination of the records of the commissioners would have revealed the fact that every condition precedent had been fully performed; and among others, that a majority of the resident land-holders whose lands were reported benefited by the improvement had subscribed the petition, and that the commissioners had so found the fact to be. True, under the decision of Hays v. Jones, this finding was not conclusive in such a case, nevertheless it was a fact which it become the duty of the commissioners to pass upon, and having found it in favor of the ininformation information and issued bonds reciting the fact, that every condition precedent had been performed, it appears to us, that an innocent purchaser of the bonds, relying upon the improvements thus acquired, should be protected against such defense on the part of the county, which, in fact, has realized and enjoyed the full benefit of the proceeds. Commissioners v. Aspenwall, 21 Howard, (U.S.) 53); Bissell v. Jeffersonville, 24 Ibid, 287; Warren v. Marcy, 97 U. S. 96; State ex rel. v. Robertson, 27 Ohio St. 96; State ex rel. v. Garrett, 7 Ohio St. 327; Shoemaker v. Goshen Township, 14 Ohio St. 569. Peremptory writ awarded.

[This case will appear in 37 O. S.]

RAILROAD CONSOLIDATION. SUPREME COURT OF OHIO.

THE STATE v. VanderbILT.

March 7, 1882.

1. Two railroad companies owning lines of railroad connected only by other railroads which such companies hold by lease, are not authorized to become consol. idated into one corporation under Rev. Stats. 3379.

2. The lines of tworailroad companies, which are in their general features parallel and competing, cannot be connected for the carriage of freight and passengers over both continuously," within the meaning of Rev. Stats.3379, and hence such companies cannot become consolidated into one corporation under that section. 3. A certificate made by the directors of consolidat

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