Hamilton v. State of Ohio.

Not upon a statute of this state, for there is none. Shall it be upon usage? This would be a novelty in a state where no man can be punished for a crime unless the offense be specifically defined by a statute of the state prescribing the exact punishment. Shall it be from the necessity of the case lest a rogue escape? Necessity con'ers no criminal jurisdiction, and is the well-known plea of tyrants.

If the conviction can only be sustained upon the ground that the prisoner actually stole the horse in Ohio, the reply is, he actually stole the horse in the State of Illinois. There must be an actual theft in Ohio, to violate our statute and to constitute theft-a taking and carrying away are both necessary. But there is no taking in Ohio. Without a taking from the owner, there could be no larceny. To supply the want of an actual taking, it is contended that a mere taking is to be construed, from the wrongful possession, into a larceny, in every new jurisdiction where the property may be carried. Upon *which, then, [440 is this prisoner convicted, the construction or the statute? To contend that every moment's possession and wrongful detention of the stolen property from the rightful owner is, by the law, construed into a new and distinct taking or theft, might authorize the conviction of a man a hundred times for the same theft; for, if they are distinct thefts, conviction in one will be no bar to a conviction for the others. Now, at common law, whence this constructive doctrine is derived, it is only so held to give the county where the thief is taken with the goods, jurisdiction to try and convict him of the one original theft, and this is a bar to any other conviction. The law does not make distinct larcenies by construction, but it is a mere fiction to give jurisdiction to the county. This construction is merely to give jurisdiction, and not to divide it and make one larceny into many; and this, too, merely to try and punish him under the same law which he violated in committing the theft. Apply this to different states, with laws prescribing different punishments for larcenies, and having the right to punish all offenses committed within their limits, and what follows? You do not, by this construction, give jurisdiction to try the thief under the laws where the theft was committed, but by construction draw the offense to a new jurisdiction, and under a different law prescribing a different punishment.

The construction, then, creates the offense, when the statute only

Hamilton v. State of Ohio.

can do it, and creates a crime under a new law, instead of conferring jurisdiction to try the accused under the law which he has violated. It amounts to this: that there is a new larceny in each state where the thief may go with the property, and that he may be punished for the same larceny as many times as he may have been in different states with the thing stolen; for prosecution and conviction in one state is no bar to a prosecution and conviction in another. And, hence, a sort of custom, usage, or legal inference overturns, not only the principles of common justice, but the fundamental principle that a man shall be punished but once for the same offense. But will it be said, there is a great evil in 441] permitting thieves to live within our borders in the guilty possession of property which they have stolen in another state? True, but they must be delivered up if demanded; and it would be very easy for the legislature to pass a law to punish a thief for having in his possession, within this state, goods which he has stolen in another. This the State of New York has done, and so may every other state; and I trust that our legislature may pass such a law. The question is not whether there should be some law upon the subject, but whether there is any? And, feeling clear that there is none, I hold the prisoner to be confined without legal authority; and, moreover, that this court can not confer such authority. Even if it be doubtful, upon all principles of jurisprudence, that doubt should be resolved in favor of the prisoner. If the state may rely, for conviction, upon the usages of some states in which such convictions have been held to be right, why may not the prisoner rely upon the authorities in other states where such convictions have been held to be wrong?

No principle of the common law warrants this conviction; no statute authorizes it; and, clearly, no usage or custom can confer such authority, especially when it violates the soundest principles upon which criminal justice is known to be administered, and authorizes a man to be convicted more than once for the same offense.

My confidence in my brethren would have induced me, if my convictions as to the law on this subject had not, in my own mind, beer perfectly clear, at least to have acquiesced, deferring my doubts, if I entertained any, to their opinion.

376

Lessee of Perry v. Brainard.

*THE LESSEE OF MARY S. PERRY v. DANIEL BRAINARD. [442

In this state the guardianship of a minor female expires, by operation of law, when the ward arrives at the age of twelve years.

A guardian, appointed for such ward, when under the age of twelve years, can not, as such guardian, by petition filed after the ward arrives at the age of twelve years, sell the ward's land.

A sale, under an order of court upon such petition, is void.

THIS case was reserved on the last circuit, from Sandusky county.

It is an action of ejectment, to recover the possession of lot No. 144, in the town of Sandusky. The principal facts are agreed.

At the May term, 1828, of the court of common pleas of Sandusky county, Jaques Hulburd was appointed guardian for Mary S. Perry, a minor, who was then nine years and eight months old, and was seized in fee of the lot in question. At the May term, 1831, of said court, Hulburd, as guardian for Mary S. Perry, who was then twelve years and eight months old, filed his petition for the sale of said lot, setting forth that she was twelve years of age, that said lot was situated in Lower Sandusky, and was subject to taxation, and that the investment of the funds in wild land would be of greater advantage to the minor heir, etc., and praying a sale. At the October term, 1831, the court ordered a sale of the lot, and, at the March term, 1832, the guardian reported a sale of said lot to the defendant, Brainard. The report was approved, the sale confirmed, and the guardian ordered to make a deed to the purchaser. On August 25, 1835, the guardian executed a deed of the premises to the defendant, Brainard. The record of Hulburd's appointment recites that Mary S. Perry was, at that time, nine years old.

The reporter was furnished with no arguments.

*WOOD, J. From the admissions and proofs in this case, [443 the question first arises whether Hulburd was the guardian of this minor heir, the plaintiff's lessor, when the petition for the sale of her land was filed. If not, there was a defect of power, and the subsequent proceedings conveyed no title to the defendant, but it

Lessee of Perry v. Brainard.

still remains in Mary S. Perry. This question must be determined principally by the construction of our own statute, and we have not been able to find any case strictly analogous in the reports of other states.

If this question be decided in the negative, there is clearly an end of the affair; it then becomes unnecessary to touch any other question raised, but judgment must be given for the plaintiff.

The statute provides that the court of common pleas shall have power, when they think it necessary, to appoint guardians for minors, and, on good cause shown, to authorize such guardians to sell such minor's land. Swan's Stat. 430. Section 6 enacts, "that when these minors aforesaid, males above fourteen, and females above twelve years of age, or when any minors for whom the court have appointed a guardian or guardians, shall arrive at the respective ages aforesaid, such minors may severally choose a guardian or guardians, such as the court shall approve, and if such minors do not come before the court and choose a guardian or guardians after being notified by the court so to do, the court shall appoint a guardian or guardians for them as aforesaid."

It seems to us the obvious construction of this section is, that the appointment of a guardian to a female under twelve years, though unlimited on the face of the appointment, ceases by its legal expiration when the ward arrives at the age of twelve years. At that age the law deems her of sufficient discretion and capacity to have a choice of the person who is to control not only her property but herself, subject, nevertheless, to the approval of the court; and it is then, only, after being notified to appear and make such choice, and refusal on her part, that the court are authorized and required to appoint a guardian if she is over twelve years of age. 444] That the appointment expires by its own limitation when the ward arrives at the age of twelve years, was decided in the case of Campbell v. English and wife, Wright, 119. The court then held this language: "A guardian for a female under twelve years of age continues only until the ward attains to that age. A guardian, or a man that has been guardian, after his guardianship has expired, has no more power than if he had never been appointed." We see no reason to question the soundness of this principle. It accords with our own views.

How, then, stands the case at bar? It is admitted the guardian

Commercial Bank of Lake Erie v. Western Reserve Bank et al.

filed his petition for the sale of the land after the ward had arrived at the age of twelve years, and at a time when the law had determined his guardianship. All the proceedings subsequent to, and including the petition for the sale of the lot, are therefore void, and convey no title to the defendant. Judgment for plaintiff.

THE COMMERCIAL BANK OF LAKE ERIE V. THE WESTERN RESERVE BANK ET AL.

THE WESTERN RESERVE BANK V. THE COMMERCIAL BANK OF LAKE ERIE ET AL.

A judgment creditor may not, unnecessarily and without cause, relinquish a levy to the prejudice of purchasers, but embarrassments upon the title, difficulties in making a fair sale, or the probability of not making the money from it in consequence of earlier incumbrances, are sufficient

causes.

The relation of principal and surety continues after judgment.

Lands lying under a judgment lien, which have been sold to purchasers, must be sold to satisfy the judgment, in the inverse order of the dates of the purchase.

THESE suits are a bill and cross-bill in chancery from Cuyahoga county, to settle liens and priorities between creditors, by judgment and otherwise, of Clarke and Willey.

*The Western Reserve Bank recovered judgment, by [445 cognovit, against James Clarke, Willey, and Edmund Clarke, on May 12, 1837. Edmund Clarke is really a surety, but the judg ment is entered against the defendants generally, without any certificate of the fact. On June 19, 1837, a writ of error was prosecuted, by which proceedings were stayed until affirmance of the judgment, in August, 1838. In November, 1838, execution was issued on this judgment, and levied on lot No. 51, in Ohio City, and on lot No. 95, in Cleveland. In April, 1839, the levy, under this execution, was set aside at their instance. A partial satisfaction of the judgment was then obtained by the sale of other property, in proceedings not necessary to be further noticed.