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Vol. II.]

WEIMER V. BUNBURY.

[No. 1.

is held valid or not. But as the general principle of this statute has always been deemed important in this state, we have thought it proper to express our opinion of its constitutional validity, pausing only when we reach a provision which seems defective in its protection of individual rights, and which, whether constitutional or not, it may fairly be presumed the legislature might be inclined to modify on their attention being called to it. Waiving, therefore, the question of the validity of this provision, we proceed to show why, in our opinion, the county treasurer's warrant was not justified by its terms.

The various provisions of the statute which lead to the issue of the county treasurer's warrant have already been stated or referred to. - It was necessary in this case that the state and county taxes should be properly apportioned to the city of Niles, and that the city treasurer should have executed to the county treasurer the proper bond. The supervisors must subsequently have delivered to the city treasurer tax rolls with state, county, city, school and other taxes extended thereon, with warrants annexed giving him proper legal authority to collect the same, and directions as to what disposition he was to make of the several taxes he should collect. All these were necessary prerequisities, without which the city treasurer could not be subjected to this summary process. Treating the city treasurer's official bond to the county treasurer as an agreement that a summary execution may issue when a default occurs, its terms cannot be extended so as to subject the city treasurer and his sureties to this extraordinary process when the default is on the part of another officer. The city treasurer is not in default if he never receives the tax roll, and though he may be liable in a proper form of action for any tax moneys actually received by him, it is clear that he does not agree by his bond or otherwise to become responsible for all the moneys called for by the tax roll if no warrant accompanies it empowering him to enforce payment. In other words, he must have in his hands the statutory means for collection before he can be in default for not collecting. And when summary process of this nature is issued against him, it must show on its face all the facts which are necessary to constitute a default; for nothing can be taken by intendment in favor of a proceeding like this, which is in derogation of common law principles, and therefore must depend for its validity upon a strict conformity to the statute. As in the case of the process of all other inferior and special tribunals not proceeding according to the course of the common law, the county treasurer's warrant must show the facts which presumptively would make out a case in which he had jurisdiction to issue it. Nichols v. Walker, Cro. Car. 394; Rex v. Manning, 1 Burr. 377; Rex v. Mayor, &c. of Liverpool, 3 Ib. 2244; Tracy v. Dakin, 7 Johns. 75; Mills v. Martin, 19 Johns. 33; People v. Koeber, 7 Hill, 39; Dakin v. Hudson, 6 Cow. 221; Bridge v. Ford, 6 Mass. 642; Barrett v. Crane, 16 Wisc. 246; Brewster v. Hyde, 7 N. H. 211; Chandler v. Nash, 5 Mich. 409; Platt v. Steward, 10 Mich. 260; Hart v. Newsam, 14 Mich. 233. In this case the county treasurer has no record back of the warrant which shows the default, and consequently any question which might be made regarding the support of the warrant by such a record is not in the case. Nor do we think there is any foundation for the argument which is made, that the county treasurer's warrant must be held suffi

Vol. II.]

WEIMER V. Bunbury.

[No. 1.

cient because the statute furnishes a form with which it complies. The statute gives no form; it merely says the warrant shall be directed to the sheriff, and shall command him to levy the sum unpaid and unaccounted for, together with his fees, &c.; but he is to issue it only "if any township treasurer, ward collector, or other collecting officer shall neglect or refuse to pay to the county treasurer the sums required by his warrant, or to account for the same as unpaid as required by law." These facts are to precede the issue of the warrant, and these or something equivalent must somewhere appear.

What does the county treasurer's precept show in this case? It begins with a recital that the city treasurer is in default"in the payment to the county treasurer of the taxes apportioned to said city of Niles for the year 1872." Here is the statement of a legal conclusion without the recital of a single fact to support it. It is a judgment without preliminary accusation or finding. It is difficult to conceive of a proceeding more defective in the statement of jurisdictional facts. Nothing is said of any tax rolls, nothing of any tax warrants; but upon the naked fact that taxes have been apportioned to the city of Niles which have not been paid over to the county treasurer, the sheriff is to proceed to levy and collect the same of the property of the city treasurer and his sureties. Nor do the subsequent recitals in the precept support this preliminary declaration of the city treasurer's default. The subsequent recitals show these facts only: that certain persons became sureties on the bond of the city treasurer to the county treasurer, and that "there remains now due and unaccounted for from the said Thomas A. Bunbury, as such city treasurer as aforesaid, the sum of $4,872.62." Now the city treasurer might be in default for this amount without being liable to this process, for the taxes unpaid might be city, school, highway, or special taxes with which the county treasurer has no concern. It may be doubtful, therefore, if this statement would show a default even if it were previously recited that tax rolls and warrants were duly delivered; but it is clear it could be of no service in the absence of such a recital.

It follows that the county treasurer's precept was not fair on its face; that is to say, it did not contain recitals sufficient to show that it was lawfully issued. If we could go back of it and beyond the county treasurer's office to find support in facts not recited, it could not be aided. To one of the tax rolls it was admitted no tax warrant was attached and the defendant's offer of evidence conceded that the city treasurer had paid to the county treasurer a sum in excess of the state and county tax called for by the warrant attached to the other. If, therefore, we could treat the county treasurer's process as divisible in its application to the two tax rolls upon which we express no opinion - it would not aid the defendant in this case, for it is impossible to say on this record that the deficiency was not wholly upon the roll, to which no warrant was attached, and which therefore could not, as already stated, be a basis for this summary process. There was no showing and no offer to show that the payments to the county treasurer were made with a designation of the roll or rolls upon which they were to apply, or that they were applied otherwise than generally to the amount apportioned to the city. The judgment is affirmed.

Vol. II.]

WILLIAMS v. SPARKS.

[No. 1.

SUPREME COURT OF OHIO.

REPUGNANT DESCRIPTIONS OF LAND IN DEED. "ROAD-BED."

WILLIAMS et al. v. SPARKS.

(To appear in 24 Ohio State.)

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Where land was described in a deed of conveyance as lying north of a specified road, and was also described by boundary lines, which include the road-bed: Held, that the repugnancy between the two descriptions is not irreconcilable, and that the roadbed is included in the conveyance.

THIS was an action to foreclose a mortgage given for the purchase money of land. The defence set up was that the vendor, by his deed conveying the land to the defendant, covenanted that the tract conveyed contained forty acres, whereas it contained only thirty-seven and one half acres, and that the consideration, to the extent of the two and one half acres, had failed. The deed describes the land as "lying north of a road," which is named, and also describes it by metes and bounds, calling for objects along the lines, and calling for the south line of the road as its boundary, and concludes the description with the words " containing forty acres." The land lying north of the road, and included within the boundary lines, is only thirty-seven and one half acres; but if the road is included, there is the full complement of forty acres. The cause was submitted to the court upon the deed and mortgage, the description of the land in both being the same; and the court gave the mortgagee a judgment for the full amount of the purchase money. To reverse this judgment, leave is now asked to file a petition in error here.

WELCH, J. . . . . In our judgment the real question presented is, whether the deed conveys only the land lying north of the road, or whether it includes also the road-bed. If it includes the road-bed, there seems to be no deficit in quantity; and therefore it is immaterial whether the words of quantity are to be regarded as a covenant or not, because if they are to be regarded as a covenant, it is enough to say that the covenant has not been broken. We think the land conveyed includes the road-bed. There are two apparently repugnant descriptions of the land, but their repugnancy is only apparent, or at least not absolute or irreconcilable. The land is described as lying north of the road, and also as being bounded on the south by the south line of the road. It seems to us that these two descriptions are reasonably reconcilable, on the theory that, taken together, they describe the land as lying north of the south line of the road, or as lying (mainly) north of, but including the road. In other words, we think that the description by metes and bounds must prevail, in so far as the two descriptions seem to clash. It may be observed, also, that the description by metes and bounds is strengthened by the fact that these boundaries contain the quantity of land called for; whereas there is a deficit if the north line of the road be regarded as the southern boundary of the land. Leave refused.

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The "natural, essential, and inherent " right of "protecting property," declared in article 2 of the Bill of Rights, is the right to do whatever, under the circumstances of each case, apparently is reasonably necessary to be done in defence.

The statute (Gen. Stat. ch. 251, sec. 2) prohibiting the destruction of certain fur-bearing animals between May 1 and October 15, is not applicable to cases in which such destruction is an exercise of the constitutional right of protecting property.

The killing of wild vermin in defence of property may be apparently reasonably necessary in apparent danger not actual. Such a case is not governed by the tests of imminent danger and of the duty of retreating to the wall, applied in cases of homicidal defence.

DEBT, by Arthur R. Aldrich against Wells Wright, to recover the penalties prescribed by sec. 2, chap. 251, General Statutes, for killing minks. The defendant admitted the killing of four minks, but alleged, in justification, that the animals were at the time pursuing his geese.

The only evidence in the case was the testimony of George W. Blood, who, in common with the defendant, owned a small goose-pond. The dividing line between the premises of the witness and the defendant was the brook running into this pond; and the houses occupied by the witness and the defendant were on the opposite sides of the brook and but a few rods distant therefrom. The witness testified as follows: "I stood in my dooryard; heard the geese cackling; I came out on to a little knoll; I saw the four minks swimming towards the geese; some. of the geese had then got on to the shore of the pond and some of them were in the water ; the minks were from one to three rods distant from the geese; some of the geese within a rod of the minks, who were one old mink and three young ones, but all about the same size. As soon as the minks saw me they stopped pursuing the geese, and ran out upon a little island and there stopped. At the same time that I came out the defendant also came out with his gun; he came out near the end of a causeway that is laid across the lower end of the pond, and fired at the minks on the island, killing them all at one shot; the minks were all on the island when he fired; the defendant carried the minks off to his house; the geese were six old ones, and eight young ones about half grown; geese had run in the pond two or three summers; never knew of any mink chasing any geese there before or since; don't know whether minks are accustomed to kill geese or not."

A verdict was taken for the plaintiff by consent, subject to the defendant's exception to a pro forma ruling that the defendant would not be justified in killing the minks if the geese were not in imminent danger, and could have been protected either by driving away the geese, or frightening or driving off the minks.

Ray, Drew & Heywood, for the defendant.

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Vol. II.]

ALDRICH v. WRIGHT.

[No. 2.

G. A. Bingham & Aldrich, for the plaintiff. DOE, J. All men have certain natural, essential, and inherent rights; among which are the enjoying and defending life and liberty, acquiring, possessing, and protecting property.' Bill of Rights, art. 2. In this declaration of the right of defending life and liberty, and protecting property, the Bill of Rights, more properly called the declaration of rights, professes to set forth a mere recognition of a natural right. The right thus recognized is maintained by the elementary principles of the common law, which are, in general, adopted by the ninetieth article of the Constitution, subject to legislative alteration and repeal: as a fundamental and essential right, the defence of life, liberty, and property is here put, by a special guaranty, above the altering and repealing power of the legislature.

The statute on which this suit is brought provides that "No person shall in any way destroy, between the first day of May and the fifteenth day of October of each year, any mink, beaver, sable, otter, fisher, or muskrat, under penalty of $10 for each animal so destroyed." Gen. Stat. ch. 251, sec. 2. The plaintiff's construction of this statute, presented in the pro forma ruling, admits the defendant's right of defending his geese, notwithstanding there is no clause in the statute expressly excepting and saving the right. As the legislature could not abolish the right, they are not presumed to have attempted an impossibility, or to have intended to pass a void act; and the statute is held valid by giving it a construction compatible with the Constitution, making it applicable only to those cases to which it can be constitutionally applied. Between May 1 and October 15, the defendant could not lawfully kill these minks for their fur, or in sport or wantonness, or for any past pursuit or disturbance of his property, however vexatious, or for any other mischief committed, however serious; but he could lawfully protect his property against them between May 1 and October 15, as well as at any other time. If they had consumed his entire stock of poultry, he could not have justified his shot for obtaining their skins as the only available redress for their depredations; but, while one of his birds remained, he could lawfully defend it. He could have no indemnity for the past; but he was entitled to security for the future. Much as the statute had abridged his rights of hunting and reprisal, it had put him under no obligation to suffer the minks to eat, injure, or annoy his domestic fowls. His natural, common law, and constitutional right of defence existed in full force and vigor, not repealed, nor in the slightest degree impaired or modified by the statute. He could exercise that right as fully and freely as if the statute had not been enacted. What was that right? This is the only question in the case.

Higher and earlier in its origin than the Constitution or the common law, not superseded by those temporal and finite systems, but sustained and enforced by their declaration and sanction of the highest, primary, eternal, and infinite law of nature, - 3 Bl. Com. 4; 1 Hale P. Ĉ. (Am. ed. of 1847) 479, note 1,2- the right of defence cannot be prescribed within the limits of a narrow technical rule. It is an original and comprehensive prerogative, necessarily ascertained and defined by natural reason. It is not established by any fallible authority, nor measured by

sit.

1 LADD, J., having been of counsel, did not

2 And see Horrigan & Thompson Cases on Self-Defence, 871.- REPORTER.

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