Stephenson v. Line. in an important sense, the settled principles of the law with relation to percolating waters. True, the contention does not concern the usufructuary right in percolating waters, and, therefore, the controversy is not determined against the plaintiffs below by Elster v. Springfield, 49 Ohio St., 82, and Frazier v. Brown, 12 Ohio St., 294. But in view of the evidence and the instruction the judgment under review must stand, if at all, upon the proposition that if one proceed with skill and care, and without malice, to drain his own land for a lawful purpose, he is liable to the adjacent proprietor for such injuries as may result to his soil from the withdrawal of its natural support, even though such support consists of percolating waters and sand of such nature and so blended with the waters as to be inseparable from them. Such limitation upon proprietary rights does not seem to be warranted by the cases cited. However broadly the doctrine as to the right of natural support may be stated in Gilmore v. Driscoll, and Keating v. Cincinnati, and the many cases of like import, it is laid down only with reference to the removal of obvious support from which there may be cause to anticipate the injury. It has in no case been held that although one has the right to take percolating waters, he is nevertheless liable for injuries resulting therefrom even though he takes them with skill and care, and without malice. There is respectable authority for the conclusion that there is no liability in such a case. Gould on Waters, sec. 289; Goddard on Easements, p. 57; Popplewell v. Hodkinson, L. R., 4 Ex., 248. But applying the doctrine stated and approved in Keating v. Cincinnati, the judgment will be affirmed. Paul Jones and Florizel Smith, for Plaintiff in Error. BILLS AND NOTES. [Butler Circuit Court, October, 1892.] Cox, Smith and Swing, JJ. *MARY J. STEPHENSON V. ROBERT LINE. ACTION AGAINST MAKER. No action can be maintained by the holder against the maker of a promissory note, an action on which is barred by the statute of limitations, on a verbal promise to pay the same, made after the bar of the statute had arisen, the consideration of the promise being the original and valid debt. ERROR to the Court of Common Pleas of Butler county. SMITH, J. On the 5th day of January, 1891, Mary J. Stephenson commenced action in the court of common pleas of Butler county, against Robert Line, and the averments of the petition were substantially as follows: That on Sept. 20, 1864, the defendant executed and delivered to Betsy Line his promissory note of that date, for $250.00, payable twelve months after date, and bearing interest from date. That in 1876 the administrator of the estate of said Betsy Line, for a valuable considera *Affirmed by Supreme Court, without report, 54 O. S., 645. Butler Circuit Court. tion transferred and delivered said note to the plaintiff who has ever since been the owner of the same. She says that frequently between 1876 and 1880, defendant promised plaintiff in consideration of the premises to pay her said note with the interest thereon, but said promises were not in writing. That in 1885, when an action on said note was barred by the statute of limitations of fifteen years, in consideration of said note being justly due and of his previous promise to pay the same, he again promised the plaintiff to pay the same, together with the interest thereon from Sept. 20, 1864, as soon as he paid for a small piece oi ground which he had bought, and she says he paid for the same same year. And that in 1886, for the same consideration, dei-ndant again renewed his promise to pay plaintiff the same with said interest as soon as he got his barn, which he was then building, paid for, and it is averred that it was paid for in 1887. She says at these promises of 1885-6 to pay said note and interest were based upon sufficient consideration, and that a right of action accrued thereon, and that there is due to her from the said defendant, upon the said promises made by him. after an action on the note was barred by the statute of limitations, the said sum of $250.00, with interest from Sept. 20, 1864, for which she asks judgment. To this petition the defendant demurred, on the grounds that it showed on its face that the action was barred by the statute of limitations. Second-That it did not state facts sufficient to constitute a cause of action against him; and, Third-That the plaintiff had not legal capacity to sue. This demurrer was overruled by the court, and the defendant filed an answer containing three defenses. First-£. gen. eral denial. Second-That plaintiff had no title to the note, and, Third-The plea of the statute of imitations, that more than twenty year had elapsed since the cause of action had accrued on the note, and no payment had ever been ade thereon by the defendant and no written acknowledgment thereof or promise to pay the same had ever been made or signed by him; that the action v barred more than ten years before suit brought. Thereupon the pntiff demurred to the third defense, on the ground that it was not sufficient, but was overruled by the court, and exceptions taken. The reply filed admitted the allegations of the third defense to be true, but took issue as to the airst and second defenses. A trial was had, which resulted in a judgment for the defendant, and a motion for a new trial was overruled. We understand that the question for decision in this case, is simply this: Can an action be maintained by the holder. against the maker of promissory note (an action on which is barred by the statute of limi taton), on a verbal promise to pay the same, made after the bar of the sante had arisen, the consideration of the promise being the original Vaic debt? The whole question might properly have been raised by a demurrer c the petition, had it conta nã an averment that the promises so made were verbal only But as this did not appear, it may be that the demurrer was properly overruled, as the presumption may have arisen that the Promise was in writing, and as a question of pleading, might stand on same footing as one involving the statute of frauds, as to which the * seems to be that in counting on a contract as to land, the petition need Yet ever that it was in writing, even when it is necessary to its validity is be in writing, for the presumption will be, where a contract is alIged in a petition, that it is a valid and legal contract; Bates on Plead Stephenson v. Line. ings 109 and 110. The supreme cor, Lowever, in the Corry case, 64 Ohio St. 349, seem to have held the contrary to this in saying that demurer to a petition alleging a promise to pay a bared debt, but not saying whether is was or was not in writing, was properly sustained. But this question is not a material one in this case, for the question was squarely ised by the third defense in defendant's answer, which the reply of the plaintiff admits to be true. In The question argued to us so fully by the counsel for the plant.ff in error, whether, when a valid promise to pay a barred debt ha been made, the action should be on the original contract or on the new promise, does not seem to us a material one in the decision of this case. view of the apparently conflicting statements made in several of the decisions of cases in the supreme coast, it might seem dorbtful as to what is the better practice. It is probably correct, as stated by Judge Pates in his work on Pleadings, page 113, that the Ohio authorities alow either mode to be adopted. We think it clear though, since th decision in 46 Ohio St., 687, that it is good practice in a case like this to sue n the original claim, alleging the written acknowledgment orromise. But whether brought on the originai catract, setting up the new promise as a reason why the statute of Emitations should not bar the action, or brought on the new promise averring the old contract and the justness thereof as the consideration of the new promise, would not, we trina, be at all material to the determination of the question whether the new promise should or should not be in writing. The idea or proposition that if the statute of 1853 (now section 4932, Rev. Stat.) requires that a written acknowledgment or promise is necessary to confer a right of action to recover the amount of a debt barred by the statute of limitations, that this provision can be avoided or evadedtby suing on a new verbal promise, can not be entertained. The righ to recover could not depend upon the mere question whether the action was nominally on the original debt, or on the new promise. What then was the purpose, and what the effect of the section referred to? In our opinion, it was to do away entirely with the right (before that time existing), of a person to recover on a claim waich accrued after its passage, but which was allowed to become bared by the provisions of the statute of limitations, on a verbal promise to pay the same made after it was barred. And that on the admitted facts of the case, the plaintiff had no right to recover. The claim so earnestly maintained by the counsel for the plaintiff in error, that a recovery may be had on the verbal promise, and that the statute orly requires a written promise where the action is on the original contract made after the original cause of action was barred, seems to us entirely untenable. It certainly has been the opinion of the players of the state, ever since the passage of the act or 3, that in all cases arising under its provisions a verbal promise or knowledgment would be of no value whatever. The law has been in force for nearly forty years. In all of that time, until this case, we have no knowledge of the assertion of any claim to the contrary and no case is cited to us which such a question was even suggested. On the other hand, there are expressions in the opinions of the judges deciding cases, and cases decided by the supre.ne court, which are decidedly against any such doctrine, and lead to the conclusion a section in question is in the nature of a statute of frauds, and was designed to repeai or change the law as it before stood, that a verbal promise to pay a barred debt, was suffi Hamilton Circuit Court. cient, and thereby to put an effectual stop to the evils which have been found to result from allowing evidence of verbal acknowledgments or agreements to pay barred debts. Thus in Swan's Treatise, 515, it is said: "If a person is prevented. by the statute of limitations from recovering a debt, there is a moral and a prior obligation on the part of the debtor to pay it, and hence his new promise to pay it, if in writing, is binding." In the decision of the case of Marianthal v. Mosler, 16 Ohio St., 570, Judge Day says: "It is apparent that the legislature did not intend to enlarge the facilities for taking cases out of the statutory bar. Before this can now be effected by an acknowledgment of an existing debt, or a promise to pay the same, 'it must be in writing, signed by the party to be charged thereby.' No change is made (by the statute of 1853) in the effect of a part payment of a debt." By the third paragraph of the syllabus in case of Courson's Ex'r v. Courson, 19 Ohio St., 454, it is held that "each item of an account to which the limitation of actions prescribed in the code of 1853 is applicable, is barred in six years after the right of action accrued thereon, unless there has been a part payment of the account, or an acknowledgment of liability thereon, or a promise to pay the same, 'in writing, signed by the party to be charged thereby,' within six years before the action commenced." In the case of Douglass v. Corry, 46 Ohio St., where the petition set up the existence of a debt which was allowed to become barred by the statute, and a subsequent promise to pay the same (not averring that it was in writing), and asking a judgment for the amount with interest, and not explicitly counting either on the original demand, or on the new promise, the court held that the petition showed the demand was barred by the statute. We think the holdings in this case, and that in 19 Ohio St., 455, conclusively settle the case against the plaintiff. costs. The judgment of the court of common pleas will be affirmed, with Thos. Millikin, for Plaintiff in Error. Wm. H. Horr, for Defendant in Error. Flatau v. City of Mansfield. WILLS. [Butler Circuit Court, April Term, 1896.] Smith, Swing and Cox, JJ. MARY SKILLMAN V. JNO. M. Symmes et al. TESTATOR HAS POWER TO PREVENT LEGACIES, IN THE HANDS OF ADMINISTRATOR, FROM BEING SEIZED BY CREDITORS. A provision by a testator, in his will, that no part of his estate, given to any of his children, should, by any process of law, be seized or appropriated by creditors before payment to such children, but that same should be paid to such children personally, is legal, and creditors cannot, therefore, obtain “y part of such legacies, while the same are in the hands of an administrator. SMITH, J. We are of the opinion that under the claim of the will of Caladon Symmes relied on by the defendant, the plaintiff is not entitled, in this proceeding, to applicate to the payment of his claim against John M. Symmes, any part of the amount given to the latter by the will of his father, now in the hands of the administrator with the will annexed, of the estate of Caladon Symmes. That the said testator had the right to provide as he did, that no part of any of his estate given to any of his children, should by any process of law be seized or appropriated by a creditor before payment to such child, but that the same should only be paid to such child personally. This view is sustained by the following cases cited by counsel for defendant: 22 Redfield on Wills, 290, sec. 19; 19 Atlantic Rep., 383; 23 Atlantic Rep., 383. Demar, for Defendant. Stephen Crane, for Plaintiff. Millikin, Shotts & Millikin, for Defendant. TRANSIENT DEALERS. [Richland Circuit Court, September Term, 1897.] D. F. FLATAU V. CITY OF MANSFIELD. 1. JUDGMENT OF A MAYOR IS REVIEWABLE UPON THE WEIGHT OF EVIDENCE. The circuit court has power to review the judgment of a mayor, in a conviction for the violation of an ordinance, on the weight of the evidence. 2. CONFLICTING EVIDENCE WHERE STATUTE FAILS TO DEFINE TEMPORARY DEALER. In an action for the violation of a city ordinance, relative to transient dealers, where the character of the fixtures and the admission of the defendant as to his position as a transient dealer, were met by proof of a lease for eight months, a printing contract for eight months, and the defendant's own testimony that he expected to continue in business, the reviewing court declines to disturb the mayor's finding on the weight of the evidence, where the statute fails to define a temporary dealer. |