dumb person, incapable of taking charge of his affairs, nor any verdict of a jury finding him to be such a person." In other words, the defendants, the sureties on the bond, while conceding that the probate court was the proper tribunal to appoint guardians, just as in this case it is the proper tribunal for the probate of wills and the appointment of executors, yet claimed that the statutes in relation to the appointment of guardians had not been complied with, as it is claimed here. Yet in that case the court held, as already noted in this opinion, that: "An order made by a probate court in the exercise of jurisdiction cannot be collaterally impeached. The record showing nothing to the contrary, it will be conclusively presumed in all collateral proceedings that such order was made upon full proof of all the facts necessary to authorize it." It will be noted that the language of the court is "in the exercise of jurisdiction," not in the "proper" exercise of jurisdiction. It was further held that "in a suit on a guardian's bond, containing a recital of the appointment of such guardian by the proper authority, the obligors are estopped to deny the fact thus recited, or to question the validity of the appointment." The phrase "the proper authority," in the syllabus, was evidently not intended to limit application of the rule as to estoppel, but was used, rather, with reference to the facts of the case; for Scott, J., in the opinion, says: "This bond recites the appointment of Coblentz, by the proper authority, as guardian of Long. By executing this bond, they obtained for their principal the possession and control of his ward's property, and cannot now be permitted to escape liability to account therefor by denying the recitals of their own bond. They are estopped to do so." Evidently it was in the mind of the court that the obtaining of possession of assets through the medium of a court which had general jurisdiction over the subjectmatter, although it may have been improperly or even unlawfully exercised, gave color to the alleged appointment of the guardian, and aided in the perpetration of a wrong which should be prevented by estoppel. And that, in our opinion, is precisely the situation in this case. See, also, State v. Piatt, 15 Ohio, 15, in which it was held that where a clerk of the court of common pleas had been appointed, had given bond, and had entered upon the duties of his office, neither he nor his sureties could show that he had failed to qualify by taking the oath of office, and that they will not be permitted to defend themselves upon the ground that he was a mere usurper.

Our conclusion is that, both upon reason and authority, the plaintiffs in error should be estopped from questioning the rights of the defendant in error under the will, and from disputing the validity of the appointment of Hoffman as executor, and from denying their liability as sureties on the execu

tor's bond. The Judgment of the circuit court reversing the judgment of the court of common pleas is affirmed.

BURKET, SHAUCK, and PRICE, JJ., con

cur.

(66 Ohio St. 182)

STATE v. CINCINNATI TIN & JAPAN CO. (Supreme Court of Ohio. April 22, 1902.) RES JUDICATA-PARTIES-ACTION BY STATEEVIDENCE-RECOVERY OF CANAL LANDS -EVIDENCE-CONSTITUTIONAL LAW.

1. To constitute the record of an action a bar or res adjudicata, it must appear in he record itself that the party against whors it is offered was a party or privy in blood or estate to the former action, or assisted in the prosecution or defense thereof for some benetit of his own.

2. For a record of a previous action to which the state was not a party to be available against the state as an estoppel, it must appear that the state, by statute, expressly authorized the action to be brought or defended; that the officer having the action in charge acted within the scope of such authority; and in no event can the estoppel be broader than the authority so given by statute. In such cases the estoppel is by statute, rather than in pais.

3. In an action by the state for the recovery of canal lands, it is proper for the state to introduce in evidence the specifications and rules for the construction of the canals, so as to show the dimensions of the canals and banks, but an epitome of such specifications and rules prepared by the canal commission is not competent evidence.

4. Section 218-223, Bates' Ann. St., in so far as it attempts to make the findings, maps, plats, and surveys prepared by the canal commission competent or prima facie evidence of the truth of such findings, or the boundaries of such lands, or that the state has the ownership of such lands, or an interest therein, is unconstitutional and void; being in conflict with section 19 of the bill of rights, and section 28 of article 2 of the constitution.

5. In an action by the state for the recovery of canal lands, the state must first prove by competent evidence that the lands in question were formerly part of the canal system of the state, and then the burden shifts to the defendant to show that he has in some lawful manner acquired title from the state.

6. Where a plaintiff fails to introduce any evidence tending to prove his cause of action, and the defendant introduces incompetent evidence over the objection of the plaintiff, the introduction of such evidence is no ground for reversing the judgment, because the judgment is properly founded upon the failure of proof, unaided by the incompetent evidence.

7. Where a party having title to lands demises them, with possession for a term of years, to another party, such first party cannot maintain an action against a third party for the recovery of possession of such lauds while such demise is outstanding.

(Syllabus by the Court.)

Error to circuit court, Hamilton county. Action by the state against the Cincinnati Tin & Japan Company. Judgment for defendant was affirmed in the circuit court, and plaintiff brings error. Affirmed.

This was an action in the court of common pleas by the state to recover possession of what is known as "Lockport Basin," in Cin

cinnati; the claim by the state being that the basin was formerly part of the canal system of the state. The defendant denied that the basin had ever been part of the canal system of the state, and pleaded as an estoppel the record of a judgment in the superior court of Cincinnati in Canal Elevator & Warehouse Company, the assignee of a lease from the state to Brown & Wood for 99 years, renewable forever, against Buckingham & Mathers, the predecessors in title to the Cincinnati Tin & Japan Company, which action was commenced by the warehouse company, as the lessee of the state, for the recovery of this same basin, on January 20, 1872, and final judgment rendered in favor of the defendants in that case on November 18, 1876. It is averred in the answer of the japan company that the warehouse company commenced that action upon the advice and procurement, and with the assistance, of the state; that the warehouse company claimed title under its lease from the state, which title was denied and title averred to be in the defendants in that case. In the final judgment the court found in that case that the plaintiff, the warehouse company, "is not entitled to the possession of the premises, but that the defendant is seised in fee simple thereof, and entitled to retain possession thereof." The judgment is "that the plaintiff's petition be dismissed; that the title of the defendant to said prem ises be quieted against the claim of the plaintiff to any interest or estate therein; that the plaintiff be enjoined perpetually, and forever restrained, from disturbing or interfering with the defendant's possession thereof." On the trial of the case at bar the japan company offered in evidence an appropriation by the general assembly May 5. 1869, as follows: "To pay attorney's fees and incidental expenses of the board of public works, to include fees and costs of maintaining title of the state to the lands in the city of Cincinnati which have been leased to Thomas Brown and Adolph Wood, two thousand dollars." The reports of the board of public works as to the progress of the action were also introduced in evidence, the one for 1881 showing that the case had been decided adverse to the state. There was also offered in evidence the appropriation of February 27, 1880, as follows: "To pay A. Taft & Sons attorney's fees for services rendered and expenses from 1873-1877, inclusive, in recovering land in Cincinnati, twelve hundred dollars ($1.200)." The state, upon the trial, objected to the introduction of said record in evidence, but the court overruled the objection, to which the state excepted. The state, upon the trial, offered in evidence the maps, plats, surveys, and findings made by the canal commission under and by virtue of section 218-223, Bates' Ann. St., and the same were excluded upon objection of the defendant below. The state, upon the trial, offered in evidence an epitome of the rules and specifications under which the canals were originally constructed,

for the purpose of showing the width and dimensions of the berme banks. Upon objection being made, the court excluded the evidence, and the state excepted. The jury found in favor of the defendant. A motion for a new trial was filed and overruled, exceptions taken, and judgment rendered on the verdict. The circuit court affirmed the judgment. Thereupon the state came here, seeking to reverse the judgments of the courts below.

John M. Sheets, Atty. Gen., Smith W. Bennett, and John E. Todd, for the State. H. D. Peck and William Worthington, for defendant in error.

BURKET, J. (after stating the facts). The state does not claim or derive title to the basin from or through the Canal Elevator & Warehouse Company, and it was not a party plaintiff or defendant in the action brought by that company for the recovery of the basin, and the judgment was not against the state, but against the company alone. The general rule is that, to be bound by a judg ment, the party to be bound must have been a party or privy in blood or estate. Here the state was neither. For a record to constitute a bar or res adjudicata against one not a party or privy, but who assisted in the prosecution or defense of the action in aid of some interest of his own, the record itself must in some way show such assistance. State of Florida v. State of Georgia, 58 U. S. 478, 15 L. Ed. 181. If, however, the record is to be used merely as an estoppel in pais, then the advice, assistance, or procurement may be shown by evidence aliunde the record, under the usual rules of estoppel. Many cases have been cited and distinguished by counsel, but all of them fall under one or the other of the above rules, or else are controlled by local statutes or rules of decision. Actions by or against the state can be brought only by express authority of the general assembly, and the state cannot be estopped by an act of its officers, unless the state has by statute authorized such officers to act on that behalf, and then the estoppel can be no broader than the authority. The estoppel in such cases is not so much in pais as by statute. As the state was not a party or privy to the record, and the record fails to show that the state assisted in the case, and the general assembly not having passed any act authorizing such action or such assistance, it follows that the state is not bound or estopped by that record, and that the court of common pleas erred in admitting the same. Whether such error was prejudicial will be considered further along.

The state had the right to prove the dimensions of the berme bank and towpath, but such proof should have been made by the original, or certified copies, of the specifications and rules adopted for the construction of the canals. An epitome prepared by the

canal commission would not be competent evidence.

Before the enactment of the canal commission statute, when the state undertook to recover canal lands from one found in possession thereof it had to prove, in the first instance, that the lands were formerly canal lands. Such proof showed that the state was formerly the owner in fee simple of the lands, and that fact, being proven or conceded, overcame the possessory right of the defendant, and threw upon him the burden of showing that he had in some lawful manner, either by lease or purchase, acquired the lands from the state. As the statute of limitations could not run in his favor as against the state, his continued possession could never ripen into a title; and therefore the rule that one in possession of lands can be dispossessed only by one showing a better title is not applicable, because, by showing that the lands were formerly canal lands, the state shows a better title, a title that must prevail as against everybody unless a title from the state is shown, and the burden of showing such title rests upon the defendant.

Section 218-221, Bates' Ann. St., after providing for the appointment of a canal commission, makes it the duty of such commission to "proceed to survey and determine the boundaries of all lands heretofore appropriated for canal purposes, and owned by the state, the boundaries of which are not now accurately known and of record, as already surveyed, and to mark the same by proper monuments, and to make maps and plats of all said canal lands not already platted, together with the necessary description and location of all bridges, culverts and aqueducts, and shall clearly indicate and describe in their report any part of said property that in their judgment is not necessary for canal purposes, all of which is to be preserved as hereinafter provided." Section 218-223, Bates' Ann. St., is as follows: "Each of said commissioners is hereby authorized to issue subpoenas for, and compel the attendance of such witnesses as they, or either of them, may think necessary in fixing said boundaries, or ascertaining any fact which said commission should ascertain in the discharge of its duties; and the testimony so taken, together with said maps, plats, and field notes of such surveys, and the report of said commission as to the boundaries of the lands belonging to the state of Ohio, with its findings in that behalf, shall be filed for preservation in the office of the board of public works; and upon any trial in any of the courts of this state, any of said findings, maps, plats, or surveys, which may in any manner relate to or having any bearing upon the subjectmatter at issue, shall be taken and held to be competent (prima facie) evidence of the truth of such findings, and the boundaries of said lands, and that the state of Ohio

has the ownership of said land, or such an interest in it as may be therein stated; and a duly certified or sworn copy of such findings, plat, or map shall, when produced on said trial, have the same force and effect as the original from which it was taken would have under this section if produced on said trial."

The court of common pleas refused to permit the findings, maps, plats, and surveys so made under these sections to be introduced in evidence by the state, holding said last-named section to be unconstitutional. It will be noticed that by section 218-221, the canal commission is authorized to survey and determine the boundaries of lands appropriated for canal purposes, and owned by the state. As to other lands the commission has no authority to survey or determine the boundaries. So that as to each tract of land the first question to be determined is whether it has ever been appropriated to canal purposes and owned by the state; that is, was it heretofore canal lands? As between the state and a person found in possession of lands which the state claims as canal lands, this question must be determined by evidence in court, where each party can be heard under the rules applicable for the trial and determination of disputed facts; and upon such trial the findings, maps, plats, and surveys made by the canal commissioner are not competent evidence. Such findings, maps, plats, and surveys can be made only as to canal lands: and to say that, because they are made, therefore the lands are canal lands, is not sound reasoning. Such findings, maps, plats, and surveys are made without notice to the party in possession, and therefore cannot bind him, even prima facie. Were it otherwise, the commission might make findings, maps, plats, and surveys of any person's land, and thereby prove that such lands were canal lands, and, being canal lands, the fee simple title would be in the state; so that the power would be in the commission to devest a man of his title without notice or trial, and to vest the title in the state, at least prima facie. This would clearly be in conflict with that part of section 19 of the bill of rights which declares that "private property shall ever be held inviolate."

But it is urged that the findings, maps, plats, and surveys are not conclusive, but only prima facie, evidence of title in the state, and that the general assembly has power to prescribe the rules of evidence, and provide what shall make a prima facie case; and numerous authorities are cited in support of this proposition,-among others Railway Co. v. McCann, 54 Ohio St. 10. 42 N. E. 768, 31 L. R. A. 651, 56 Am. St. Rep. 695. That the general assembly has power to prescribe what shall constitute a prima facie case must be conceded, but that pow. er, under our constitution, extends only to

future transactions, and as to such the stat ute is read into the transaction, and forms a part of it; but as to past transactions the general assembly has no power, by a change of the rules of evidence, to add new burdens or impose new duties. This is forcibly illustrated by comparing the cases of Railway Co. v. McCann, supra, and Railroad Co. v. Kreager, 61 Ohio St. 312, 56 N. E. 203, with Railroad Co. v. Hedges, 63 Ohio St. 339, 58 N. E. 804. In the two former cases the transactions occurred after the passage of the prima facie statutes, and it was correctly held that those statutes were applicable to the cases; but in the latter case the transaction occurred before the passage of the prima facie statute, and it was held that the statute was not applicable to the case, being, in effect, retroactive.

This court held in Miller v. Hixson, 64 Ohio St. 39, 59 N. E. 749 (first paragraph of the syllabus), as follows:

"A statute which imposes a new or additional burden, duty, obligation, or liability, as to past transactions, is retroactive, and in conflict with that part of section 28, art. 2, of the constitution, which provides that 'the general assembly shall have no power to pass retroactive laws.'"

This section (218-223) attempts to make the findings, maps, plats, and surveys of the canal commission proof of the fact that the lands in question were canal lands, and to thereby relieve the state from proving that fact in the ordinary way aliunde such findings, and to impose upon the defendant the additional burden of overcoming the prima facie case thus made by the state. The statute therefore imposes an additional burden upon the defendant as to a past transaction, and is therefore retroactive in character and effect, and as to past transactions unconstitutional. The court, therefore, did not err in excluding said findings, maps, plats, and surveys. It therefore follows that, in an action by the state for the recovery of what it claims to be canal lands, it must prove that the lands in question were heretofore canal lands, and in making such proofs it cannot be aided by the findings, maps, plats, and surveys made by the canal commission. Aside from said findings, maps, plats, and surveys, thus properly excluded, the state offered no evidence tending to prove that the basin in question had ever constituted part of the canal system of the state. Two witnesses testified that they had gone into the basin with their canal boats, and loaded and unloaded them at the docks of the owners of warehouses on or near the banks, turned their boats around in the basin, etc. This user is not at all inconsistent with the basin being a private basin, used by private proprietors in connection with the canal, and for the mutual benefit of both parties, as was the case in Smith v. State, 59 Ohio St. 278, 52 N. E. 638. The first answer filed in the case of Canal Elevator & Warehouse Company against Bucking

ham & Mathers stated that the state of Ohio had excavated said basin, which, if true, would go far to prove that the basin was at one time a part of the canal system of the state; but afterward an amended answer was filed, in which it was stated that the basin was excavated by the adjoining proprietors for their own benefit, and it was upon this amended answer that the case was tried, and in legal effect the amended answer withdrew the statement that the state had excavated the basin. No evidence, therefore, is found in the record tending to prove that the basin ever constituted part of the canal system of the state; and the verdict of the jury was right, notwithstanding the error of the court in admitting the record in the warehouse case. As the case went to the jury, that error was not prejudicial.

There is another reason why the state could not recover, and why the admission of that record was not prejudicial. The lease by the state to Brown & Wood, of date of April 23, 1868, for 99 years, renewable forever, was introduced by the state; and the record shows that Brown & Wood accepted the lease without being put into possession, and assigned the lease to the Canal Elevator & Warehouse Company. The latter company waived the right it had to insist that the state should put it into possession, and undertook by action to recover the possession itself, and for that purpose pleaded and relied upon the lease from the state, so that the state was treated as being out of the contest, and as having performed its duty toward its lessees as to possession, and the lessees assumed the burden of obtaining possession under the lease. Under those circumstances, the state had no further right of action to recover possession, as there could not be one action by the state, and another by its lesAs between the state and its lessees, the case therefore stands as if the state had in fact put its lessees into possession. There is nothing to show that the state has been reinvested with the right of possession, and therefore the state had no right of action to recover possession, and the verdict was on this ground, also, properly in favor of the defendant below.

sees.

2. The amendment of a writ, in which de fendant, whose actual name was "Kovarik," was designated as "Kavarik," so as to make the spelling of the name correct, did not operate to dissolve an attachment theretofore levied against his real estate.

Report from superior court, Middlesex county; John H. Hardy, Judge.

Writ of entry, brought by George W. Norris against Anders G. Anderson. The superior court found for the demandant, and at the tenant's request reported the case to the supreme judicial court. Judgment for demandant in accordance with the finding.

The following is the report made by the superior court:

"This was a writ of entry, in which the demandant sought to recover from the tenant certain premises on Wood street, in the city of Woburn. The case was tried before the court without a jury. The tenant claimed title to the premises under a deed running from one John Kovarik, of Woburn, to the tenant, which deed was dated October 27, A. D. 1899. The demandant claimed title under a sheriff's deed dated February 14, 1900, and by virtue of an attachment made in the suit of one Alexander Ellis against the grantor of the tenant, which attachment was made on October 16, A. D. 1899. The evidence tended to show that John Kovarik, the grantor of the tenant, on the 28th day of September, 1899, orally agreed to convey to the tenant the premises in question, the deed to be delivered to the tenant on October 16th; that on October 16th the time for passing papers between the said John Kovarik and the tenant was postponed to October 27th, at which time the tenant took a deed from John Kovarik. The tenant, before taking the deed, employed one W. J. Hennessey, an attorney at law, to examine the records, and to pass upon the question of the title which the said John Kovarik was to convey to the tenant. Mr. Hennessey examined the records in the registry of deeds in the county of Middlesex, and reported, among other things, that the property was free from attachment; and, as a result of his investigation and report, the tenant took the deed from John Kovarik, reciting that the property was free from any incumbrances by way of attachment. It appeared, however, that one Alexander Ellis had brought a suit returnable before the Fourth district court of Eastern Middlesex, in which the defendant was named as John Kavarik, the writ being dated October 13, 1899, and on this writ Walter C. Wardwell, a deputy sheriff for said county of Middlesex, made an attachment, and stated in his return that on October 16, 1899, he had attached all the real estate of John Kavarik in the South district of the county of Middlesex, in which district Woburn is situated, and that within three days thereafter he had deposited in the registry of deeds for the Southern district of the county of Middlesex a certified copy of

said writ, with so much of his return thereon as related to said attachment. Said writ was returnable to the Fourth district court of Eastern Middlesex on the 9th day of December, 1899. On the return day the plaintiff named in that writ, Alexander Ellis, by his attorney, George W. Norris, the demandant in this case, moved to amend his writ by changing the name of the defendant from 'Kavarik' to 'Kovarik,' and this motion was allowed by the court without notice to any other person interested. It appeared also that Kovarik, who was the grantor of the tenant, was the defendant actually sued and served upon, and had actually received notice of the said suit by the said Alexander Ellis, in which suit he was named 'Kavarik.' It appeared, also, that the tenant was not aware of the inception of the suit, of the amendment made on the date of entry, or of the fact that there was a claim by any one that the attachment existed on the property of his said grantor, John Kovarik. It appeared without contradiction that in the records of attachments in the Southern district of Middlesex county on October 27, 1899, there was a page in the book of attachments at the head of which appeared the name 'Kovarik,' and neither on this page nor on any other page in the book of attachments was there any record of any attachment having been made on the property of any person under the name of 'Kovarik.' Mr. Hennessey, who had examined the records, and reported to the tenant that there was no attachment on the property of any Kovarik made in the year 1899, had his attention called to the claim of the demandant some time after the entry of the suit of Alexander Ellis in the Fourth district court by his client handing to him the letter, a copy of which is annexed, marked 'Exhibit A,' and immediately repaired to the Middlesex registry of deeds to verify the report which he had made before, and, on finding the condition to be the same as he had reported to his client, the tenant notified the demandant of his action, and of the fact that there had been no attachment made on the property of Kovarik, whereupon the demandant wrote to Mr. Hennessey a postal card, a copy of which is annexed, marked 'Exhibit B,' telling him to look under the name spelled 'Kayarik,' and he would find a record of an attachment made in favor of Alexander Ellis. On the receipt of this postal card, Mr. Hennessey repaired again to the Middlesex registry of deeds (Southern district), and on a page more than forty pages in advance of the page set apart for attachments against the property of persons named 'Kovarik' found a page on which a place had been set apart for attachments of property of persons by the name of 'Kavarik,' and there found a record of the attachment upon the writ aforesaid filed within three days after October 16th, which this demandant based his claim to the premises in question upon. It