Foote v. City of Cincinnati.

But the objection is capable of a different and conclusive answer. Unless the law by which the defendant's property is taken for a public use provides him a compensation, it is void. McArthur v. Kelly and others, 5 Ohio, 143; 2 Kent's Com. 339.

This charter does not attempt to afford compensation to any except to the owners who hold freeholds, or renewable leaseholds of ninety-nine years, leaving shorter interests, like the plaintiff's, entirely without protection. There can, therefore, be no obligation on him to appeal to a law which affords him no remedy; and the case of Hickox v. City of Cleveland, 8 Ohio, 543, renders no such recurrence necessary. His right, then, to the common forms of justice is unimpaired, and he may well sustain the present suit. The jury having found the alternative damages, it only remains for us to determine for which sum he may take judgment. If his liability to pay rent to his landlord subsists after this appropriation of his property to a public use, his compensation should cover such rent; but if his rent is extinguished by such occupation, he is entitled to no indemnity. We are referred to Gillespie v. Thomas, 15 Wend. 464, as an authority to show that the rent is discharged. We find the court adjudicating upon the proceedings of street commissioners in New York, exercising special statutory powers, who have all parties, both landlords and tenants, before them, and who adjust all interests and satisfy all damages. The proceedings of such a tribunal, by whom the landlord obtains a compensation for his rent, involves a discharge of the lessee. But this case does not touch the general principle that the right of eminent domain, or the right of appropriating land to public uses, is no proper technical incumbrance on the land, and that such appropriation is no eviction. Folts v. Huntley, 7 Wend. 211; Elisha Parks v. City of Boston, 15 Zick. 198. The rights of the parties, therefore, are unaffected by those rights. The tenant's liability to pay rent to 411] his landlord *continues unimpaired, and he is entitled to a compensation to include the largest sum.

Judgmen for plaintiff.

CHARLES FOX, for plaintiff.

EDWARD WOODRUFF, for defendant.

350

Belknap v. Cram et al.

IRA BELKNAP v. JOHN O. CRAM, NEHEMIAH G. ABBOTT, JOHN MISER, JOHN W. THOMPSON, GEORGE JAMES, ET AL.

Joint property will, in equity, be subjected to the payment of partnership debts.

Notes given by one member of a firm to his partners, on its dissolution become their individual property, and, in the possession of their assignee, can not be subjected to pay the creditors of the firm.

THIS is a bill in chancery, from Muskingum county.

The material facts upon which the cause was decided, are set forth in the opinion of the court.

GODDARD & CONVERSE, for complainant.

H. STANBERY and GEORGE JAMES, for defendants.

As some important principles discussed by counsel were not de cided, nor the case finally disposed of, the arguments are omitted

WOOD, J. The facts in this case appear to be these: The com plainant became the surety of Miser, Thompson & Co., which firm was composed of Miser, Thompson, Abbott, and Cram. This firm was dissolved, and Miser, who bought out [412 Thompson, gave Abbott and Cram notes, secured, for $4,000, and became obligated to pay the partnership debts, and all the partnership effects were transferred to him. At the date of the dissolution, and when the arrangement was completed, the assets of the firm of Miser, Thompson & Co. were amply sufficient to pay all the partnership debts. Miser afterward squandered the partnership property, and Abbott and Cram became insolvent, and assigned the notes for $4,000 to the respondent, James, as a trustee, to pay certain separate debts of theirs, previously contracted in the city of New York. At the time of this assignment, these New York debts were in the hands of James and others, as attorneys, for collection, and Abbott and Cram being pressed for payment, the assignment was made in consideration of an extension of time, and Miser's notes collected and the money partially in the hands of James to be applied in payment of the New York debts. The trustee is charged with notice, at the time of the assignment, of the circumstances under which it was made.

Belknap v. Cram et al.

The object of the suit is to subject the avails of these notes, in the hands of James, to the payment of the demand on which the complainant was surety for Miser, Thompson & Co., on the principle which is familiar in the law of partnerships, that the joint property must be applied to pay the joint debts of the firm. While the rule is admitted, its application to this case by no means follows. The whole transaction, on the part of Abbott and Cram, and the trustee, appears to have been conducted in good faith, and the consideration for the transfer of the notes, such as the law will support. A creditor of the firm can not, under any circumstances, reach the joint property, in case of a transfer in discharge of a separate debt. While the members of a partnership, as between themselves, have a lien which they may directly enforce, by the application of the joint property to liquidate the joint debts, a creditor of the firm has no such lien on its effects. He has, it is said, in the books, something which approaches a lien, but it can not be enforced except through the 413] partners themselves. Nor while the partnership is solvent and going on, have the creditors any equity, strictly speaking, against the effects of the partnership. All they can do is to proceed, by action at law, against the partners. 6 Ves. Ch. 119; 11 Ves. Ch. 3; 2 Swanst. Ch. 552. There being then, says Mr. Justice Story, in his Law of Partnership, page 510, no lien and no equity, until the levy of an execution, it follows that the partnership effects may be legally transferred, bona fide, for a valuable consideration, to any persons whomsoever, and as well to the other partners as to strangers-as was decided at this term, in the case of Wilcox et al. v. Williams et al.

It seems to us, therefore, to be clear, that at the time of the dissolution of this firm, admitting for the present, that the notes transferred to Abbott and Cram were partnership assets, that they vested in them as their individual property, and were transferred by Abbott and Cram, and legally vested in the respondent James. If this be not so, there is no safety in a creditor receiving payment of a separate debt, even with the assent of the firm, however solvent; but his security can only depend upon its continued prosperity.

But it is not clear that these notes of Miser's were partnership property. On the other hand, it is evident, to my mind, they were not. They were executed by Miser on the dissolution of the

Fox v. Hart.

partnership; they were the individual notes of Miser and his securities, and were delivered to Abbott and Cram, and were never the property nor in the control of the firm of Miser, Thompson & Co., for whom the complainant was surety, and he can have no claim to reach them in equity. Joint property, says Judge Story, is that in which the partners have a joint interest, at the time of the dissolution, either in law or equity. Story on Part. 528.

There are other principles involved in this case, but it was reserved here to determine the one disposed of only. The injunction is dissolved as to James and the New York creditors, and the case may be remanded to the county for further hearing as to other parties, and for final decree.

Injunction dissolved and cause remanded.

*STILES R. Fox v. JOSIAH Hart.

The public right to a highway may be lost by non-user.

[414

But where there has been a continued use of such highway, although its width had been encroached upon by the adjacent owner for eighteen years, the right is not lost.

The supervisor may open such road to its full width.

THIS was a writ of error to the court of common pleas of Washington county.

The original action was trespass, in which a verdict was rendered for the defendant.

On the trial, a bill of exceptions was taken which showed that the plaintiff, "having proved an actual possession in himself of the close mentioned in his declaration, and an inclosure thereof, by a rail fence, and further offered evidence to prove the trespasses alleged to have been committed therein by the defendant, and the damages thereby, rested his case; and thereupon the defendant proved that he was supervisor of road district No. 6, in the township of Waterford, in the year 1838, and at the time of the alleged trespass, and that a certain road, running by the plaintiff's close, was a part of, and within his district; and further VOL. XI-23

353

Fox v. Hart.

offered, and gave in evidence, the plat and record of a road four rods wide (running along the bank of Wolf creek, parallel with plaintiff's close), surveyed and established by order of the court of quarter sessions of said county, in the year 1794; and, further, offered evidence tending to prove that the fence of the plaintiff was within the line or width of the said road, as surveyed and platted, four rods wide, as above stated; and that the defendant, as such supervisor, committed the alleged trespass, in abating the fence of the plaintiff, along and parallel to said road, as the same has been used and traveled by the public, and in entering upon the close of the plaintiff to the line of said road, as surveyed, in the year 1794.

415] *"And thereupon the plaintiff, to rebut the said evidence, on the part of the defendant, proved by witnesses, that the said road, as the same had been actually opened, used, and traveled by the public, to the said line, claimed by the said defendant, and to which he had so entered upon the close of the plaintiff, and opened the said road. Evidence was also given by the defendant, tending to prove that seventeen or eighteen years ago, the grantor of the plaintiff, and then owner of the close, moved his fence several feet into the said highway, and into a part thereof, which prior to that time had been used by the public as a road; but the defendant, in doing the acts complained of, not only moved that fence, but also other fences which stood within the established line of the road, but not within any part of the road which had been used by the public. It was also proved that, by the action of the water of Wolf creek, the road, as traveled by the public, had in some places become inconveniently narrow; and the plaintiff asked the court to charge the jury, that if they should find, upon the evidence, that the said road was laid out forty years ago, along the bank of the creek, and had been opened and used during all that time, at a width less than the law required the road to be laid out, then, that the supervisor, the defendant, was not authorized to enter upon the adjoining close, and open said road to the width required by the law in force at the time of its establishment; which instruction the court refused to give; to which refusal of the court, so to instruct the jury, the plaintiff, by his counsel, excepted."

The errors assigned are:

1. That the court of common pleas erred in refusing the instruc