
    Adolphus H. Smith v. Robert McGregor.
    •One claiming the right of property and of possession to a lot of stock hogs, brought replevin against S., who had the actual possession and also claimed the property in the hogs. The hogs were seized by the sheriff,- appraised, and delivered up to the plaintiff in replevin, he having given bond with surety under the statute. Held, that, in such case, “ the bond takes the place of the property to the extent of the interest of the defendant in replevin,” and that the disputed right of the defendant in the property replevied, was thereby changed to a right to recover its value from the plaintiff and his sureties.
    Reserved in the district court of Hamilton county.
    This is an action of trover to recover the value of four hundred •and thirty-eight hogs, the property of the plaintiff, alleged to have ¡been wrongfully converted by the defendant in a. d. 1849.
    
      The cause was submitted to the district court of Hamilton county upon the following agreed statement of facts:
    *“On the 28th day of August, in the year 1849, Henry H. Famme, Benjamin Arns, and Gerras Niehauser sued out of the Superior Court of Cincinnati three several writs of replevin against Adolphus H. Smith, the now plaintiff, in pursuance of which were-seized and taken out of the possession of said Smith four hundred and thirty-eight stock hogs; and bond with security having been-executed by the said plaintiffs in replevin, in said several cases, according to law, the said four hundred and thirty-eight hogs were-delivered to the plaintiffs in replevin. Afterward such proceedings-were had in the said several actions of replevin, that in all of them judgments were rendered, finding that the said Adolphus H. Smith, the now plaintiff, had the right of property and the right of possession of said hogs at the commencement of the said several replevin suits, and judgments in said several causes were rendered in his-favor, against the plaintiffs therein, for the amount of his damages in the premises, as assessed by the jury on the trial of said causes-respectively. Thereupon the said Adolphus H. Smith, the now plaintiff, caused executions to issue against the said plaintiffs in replevin, to enforce payment of the said several judgments obtained in his favor against them as aforesaid; but the said executions were-all returned 1 no goods or lands; ’ and the sureties on the bonds-executed as aforesaid, in said replevin cases, were, at the date of the rendition of the judgments therein, and are now, worthless and insolvent, and no part of said judgments has been paid, but the-same remain due and in full force. Immediately after the delivery of said four hundred and thirty-eight hogs to the said several plaintiffs in replevin, as aforesaid, they sold and delivered the same-to said Eobert McGregor, the now defendant, who was notified, before his purchase thereof, that the now plaintiff claimed them as his property; and the said McGregor afterward, in the month of November, 1849, sold the said hogs, and received the proceeds to his own use. The said hogs were all rightfully the property of the now ^plaintiff, at the commencement of the said several replevin suits. The market value of the said hogs was the sum of $2,133, in addition to which the now plaintiff sustained a loss by reason of said hogs being partly fattened at the time they were replevied, and his having to replace them by lean hpgsi in the sum of $438. The present action was brought after the rendition of the judgments in said several replevin suits, and after executions had been issued and returned as aforesaid. If upon the foregoing facts the plaintiff, in the opinion of the court, is entitled to recover, judgment is to be rendered in his favor for the amount of damages above named, and interest from the commencement of this suit, including or excluding the item of damages secondly above mentioned, as shall appear lawful to the court; and in the event that the court shall be of opinion, upon the foregoing facts, that the plaintiff is not entitled to judgment, judgment shall be rendered for the defendant.”
    The questions arising upon the foregoing agreed statement of facts were reserved by said district court for decision here.
    
      Fox & Fox, for plaintiff, argued:
    The suing out a writ of replevin does not have the effect to transfer the title from the defendant to the plaintiff in replevin. The giving a replevin bond does not change the title to the property. The title remains where it was before the bond was given. The bond is an additional security against wrong, but has not, and can not have any effect on the title to the property. The bond is not substituted for the goods. Lockwood v. Perry, 9 Mot. 444; Burkle v. Luce, 6 Hill, 560; Same Case, 1 Comst. 165; Badlam v. Tacher, 1 Pick. 287; Parker v. Simonds, 8 Met. 298; Williams v. West, 2 Ohio St. 88.
    The writ of replevin neither affects nor determines any rights whatever, not even the right of possession; and for the simple reason that rights are not to be given or taken away by the ex parte action of a plaintiff. Rights are the *subject-m after of judicial trial and determination, not the foot-ball of mistaken or unscrupulous litigants.
    The effect of the writ of replevin is simply to transfer the possession to the plaintiff, and to suspend, pending the proceedings, the defendant’s right to reclaim the possession by another writ of replevin. The moment it is ascertained by the final judgment in the replevin proceedings that the defendant is the owner, he may rereplevy the property from the plaintiff, or from a stranger, if a sale has in the meantime intervened. His right to replevin has been suspended during the pendency of the litigation, nothing more.
    McGregor could acquire no greater rights than his vendors had. They had no right in the property whatever, but could simply hold on to it without molestation from the replevin defendant, in another replevin suit, until the proceedings in replevin were terminated. McGregor, by his purchase, with notice, became a holder of the property, precisely like the plaintiffs; and at the termination of the replevin proceedings he was bound to have the property forthcoming, in his character as bailee, stakeholder, or what you please to term him, to answer to the call of the replevin defendant; and having sold the property and pocketed the proceeds, he could be sued in trover without demand. We claim that the conversion by McGregor was at the date of his sale of the hogs, and the plaintiff could recover against him in trover, because at that date he had the immediate right to the possession. His remedy for an infringement of that right by replevin was simply suspended during the pendency of the replevin suit. The right itself was not affected, He is, therefore, within the rule which requires that the plaintiff in trover shall have the right of possession at the date of conversion.
    If the writ of replevin has any such effect as to transfer the ownership of joroperty to the plaintiff, who wrongfully and perjuriously swears out the writ—if such is tho construction of the statute, it is clearly unconstitutional *for it directly infringes the provisions of the [old] constitution, which provides that “jorivate property shall ever be held inviolate,” and also, that 11 every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by the due course of law.”
    If we look at the common-law action of replevin as originally recognized, we shall find that the mere bringing of the action did not change the title to the property. On the contrary, if a claim of title was set up hy the defendant in whose possession it was found, the sheriff could-not even deliver tho property to the plaintiff until tho question of title was tried. 3 Tho. Coke Lit., note B; Shannon v. Shannon, 1 Sch. & Lef. 324; 17 Wend. 279; 1 Saund. 195, note 3; 2 Saund. 282; 3 Tho. Coke Lit. 338, note C.
    As to the judgment for damages, which our statute directs to be rendered in behalf of the successful defendant in replevin: The defendant may avail himself of this judgment or not. If he avails himself of it, to the point of payment, he can have no other satisfaction. Otherwise, he may elect to proceed on this judgment, or to ro-replevy. Compare what the court say at page 89 of 2 Ohio St., and on page 90.
    As to the claim that the judgment for the value of the articles in, the replevin suit is a bar to any recovery in the present suit: This position can not be sustained, for it is well settled that several judgments may be had against several parties for different conversions nr for different trespasses, but you can only have one satisfaction. It is admitted in the present case, that the' original plaintiffs in replevin, and their sureties, are all insolvent, so that there has been, and can be, no satisfaction. Wright v. Lathrop, 2 Ohio, 52; 1 Greenl. Ev., sec. 533; Campbell v. Phelps, 1 Pick. 70; 2 McLean, 145.
    
      J. L. Miner, for defendant.
    There is a very essential difference between the statutes *of
    New York and Massachusetts and the statute of Ohio allowing and regulating writs of, replevin. N. Y. Stat., Rev. of 1829, vol. 2, p. 521; Mass. Stat., Rev. of 1836, p. 664; Swan’s Stat. of 1841, p. 784. To note this difference, is a sufficient comment on the cases cited on behalf of the plaintiff from the New York and Massachusetts reports.
    I have not been able to find a single case (and my researches have been somewhat extensive) whore a defendant in replevin, after establishing his rights in the replevin suit, and recovering judgment for the value of the property and damages sustained by the taking, etc., has been permitted to sustain a suit either in replevin or trover, against a vendee of the plaintiff in replevin, after bond given and possession delivered to the plaintiff, except in those states whose statutes expressly provide for a return of the property, as in New York and Massachusetts.
    In the replevin suits out of which this controversy has arisen, the right of property as well as the right of possession was involved. As to the effect of the proceedings in those suits to transmit those rights to the plaintiff therein, see Jennings v. Johnson, 17 Ohio, 154; Williams v. West, 2 Ohio St. 87; Grimsel v. Brashears &. Clearwater, 1 Handy’s Superior Ct. 512; Fisher v. Whoolery, 25 Penn. St. 197; Taylor v. The Royal Saxon, 1 Wallace, Jr., 326-331; Woglan v. Cowperthwait, 2 Dallas, 63; Bell v. Bartlett, 7 N. H. 178; Whiting v. Levert, 2 Foster (N. H.), 10; Messer v. Bailey, 11 Foster (N. H.), 9.
    The proceeding is in respect of personal property, the possession, or possession and title, of which is, at the time, to say the least, in dispute. It is the policy of the law—a wise policy—that there should always be some one capable of transmitting the title of personal property to a bona fide purchaser; and the general rule is,, with very few and special exceptions, that this right or power pertains to the party who has possession of such property. *The-great bulk of personal property is for present consumption—animals for food, and all commodities are in constant and rapid movement, from the producer to the consumer. They have their time—theii brief season. The groat law of supply and demand gives them then only value, but only in due season. Such property is transient and perishable.
    In replevin, the law seizes the property, and the law disposes of it; generally, according to our system—and none better can bo devised-—under certain safeguards for the protection of the. defendant, by placing it in the possession of the plaintiff, with obsolute jus disponendi, substituting, in so for as the defendant is concerned, the bond for the property, turning his disputed right to the property into a chose in action.
    As to the constitutionality of our system of replevin—of thus! transmitting title to personal property—see Prater v. Frazer, 6 English (Ark.), 429; Freeman et al. v. Horen et al., 3 English (Ark.), 355.
    The taking of judgments by the present plaintiff, in the replevin suits, for the full value of the property, is a bar to the present action. I claim this upon the force and effect of our replevin law, and the decisions of our own courts and the other authorities cited.
   Peoic, J.

It appears from the agreed ease that, before and at the commencement of the several suits in replevin, the property in and right to the possession of the hogs in controversy, were in thé plaintiff; and he may well maintain the present action unless that property and right were divested by the proceedings in those replevin suits. In those suits the plaintiffs therein claimed the general property and right of present possession to the hogs then and now in controversy, and after seizure, executed a bond under the statute to the defendant, who also claimed to be general owner, in double the appraised value; whereupon the hogs were delivered to the plaintiffs, and *werc by them subsequently sold to the defendant in this action. The jury, upon the trial of the replevin suits, found the right of property and of possession, at the commencement of said several actions, to have been in the defendant, and found verdicts in his favor for the full value of the hogs, upon which judgments were rendered. Those judgments are still unsatisfied, and, owing to the insolvency of the plaintiffs and their sureties, altogether valueless.

The present plaintiff insists that nothing less than payment or-satisfaction of those judgements could divest his property in the hogs replevied ; while it is claimed, on the part'of the defendant, that the giving of the bond for double the appraised value of the-property replevied, followed by a delivery of the hogs to the plaintiffs in replevin, and the rendition of judgments in favor of the defendant in said actions, for the full value of the hogs, did, under the statute, and as between the parties to the suit, divest the-defendant of his property in the hogs.

The action of replevin, as regulated by our statute (Swan’s Stat. of 1841, p. 784), differs essentially from the English action of replevin, and that of most of our sister states, and it is evident, that but little light can be cast upon the question, by reference to the-decisions of other states, based as they are upon statutory provisions- and rules of practice materially variant from ours.

In tho case of Jennings v. Johnson et al., 17 Ohio, 154, it was held by Reed, J., that the bond, as between the parties to the suit, “ takes the place of the property to the extent of the interest of the defendant in replevin;” and this holding is cited arguendo and with approbation, in Williams v. West, 2 Ohio St. 87, by Thurman, J. Upon the authority of these cases it was also-decided by Gholson, J., in 1 Handy’s Sup. Ct. 512, that the delivery of the property replevied, under the statute, to the plaintiff in replevin after bond given, invested him with the property and full power to sell and dispose of it at pleasure, and thereby *to confer a valid title upon the purchaser. But it is said, that the-rulings stated in 17 Ohio, and in 2 Ohio St., wore not necessary to a determination of those cases, and that they are, therefore, the mere dicta of the judges who uttered them. To a certain extent this may be true, but they are nevertheless entitled to great respect, and have been regarded by most if not all the inferior courts, ever since their promulgation, as determining tho effect of the statutory bond in our action of replevin—that, as to tho defendant in replevin, the bond is substituted for the property, and he must thereafter look to that alone for remuneration. And is not this a just construction of tho peculiar provisions of the act regulating actions of replevin above cited, when considered with reference to those principles of public policy, which attach to the •possession and transmission of personal property, oftentimes of a perishable nature and designed for-present consumption, or expensive to keep and preserve, and imperatively requiring that the jus ■disponendi should at all times reside somewhere, and not be suspended for an indefinite period ? Upon filing the requisite affidavit, the property is taken from the possession of the defendant by ■the officer, who is required forthwith to ascertain the value of the property replevied, by the oath of two or more disinterested persons, and if bond with surety and conditioned as the statute re-quires, is given within twenty-four hours from the seizure, he is to deliver the property to the plaintiff in replevin; but if no such bond is given within that period, he is to redeliver the property to the defendant from whom it was taken. This bond is not conditioned for the restoration of the property to the defendant in any event; but ■simply that the plaintiff will prosecute his suit to effect and pay all ■costs and damages that may be awarded against him (in that suit). The plaintiff does not then stipulate that he will restore the property if the right thereto is determined against him, nor is the court authorized, upon such a finding, to enter % judgment for a return of the property. The only verdict which the jury can render, if the right of property is found to be in the defendant, is one for the value of the property as damages, and the only judgment ■the court can pronounce is for the recovery of the damages so found by the jury. It is clearly the policy of the law, for the reasons in part already adverted to, that there should always be some one ■•capable of transmitting the title to personal propei-ty to such as may desire to purchase it; and the case before us affords an apt illustration of the wisdom and policy of the rule. In August, 1849, the hogs were replevied, and, within twenty-four hours thereafter, the bond was given and the hogs delivered to the plaintiff in replevin; but the right of property in the hogs at the commencement ■of the action, was not determined for nearly three years thereafter, and from our experience in the law’s delay, the final determination of such controversies is frequently much more protracted. Now .the plaintiff claims that during all this period, that is from the commencement until the final termination of the action of replevin, no person had the legal right to sell and dispose of the hogs. The defendant in replevin certainly could not do so, and he claims that the plaintiff became and was the mere custodian of the property, but without any legal power or right to alienate it. The agreed case shows that the hogs were fattened and fit for slaughter in November, 1849; and it is manifest that the hogs could not have been kept for even one year without great loss to some one, and, if •kept until the termination of the suit, the expense would have been, ruinous. And the propriety of the rule of public policy is still more apparent if applied to a replevin of articles of provision, which rapidly deteriorate by lapse of time, such as potatoes, fruit, etc., etc. Is it not. apparent that the construction given by th e Supreme Court under the ■ old constitution- and affirmed by that organized under the new, as to • the peculiar provisions of our act regulating actions of replevin, is the *true one—one which conforms to the language employed and the proceedings prescribed, while, at the same time, it consists with public policy as to the transmission of personal estate? We-think so; and were the question a new one, should now give to it. substantially the'same construction. If there is a dispute as to the; title to articles of personal property, and the party not in possession asserts his right to it in an action of replevin, then for a brief period,, at most but twenty-four hours, the jus disponendi is suspended, and then vests in the party to whom the properly is delivered. If to - the plaintiff in replevin, the bond, in double the appraised value, will amply indemnify the defendant, if the officer has done his • duty and the defendant himself has not been remiss in keeping the-security good; and if to the defendant, the action still proceeds to- • recover its value for the benefit of the plaintiff. We have been referred to the case of a suit in replevin by a temporary bailee against his bailor, who wrongfully deprives him -of the possession; and to the remarks of Thurman, J., in 2 Ohio St. supra, that in such ease the bailor, on the termination of the bailment, may, in. turn, replevy the goods, and it is urged that the rule that the 'bond. takes the place of tl»e property “to the extent of the interest of the defendant in replevin,” is inconsistent with any such recovery. The defendant, in the case supposed, would be the general owner, and the bond, under this rule, would divest him of his entire property - in the thing replevied, and he could not thereafter replevy it. We ■ concur in the intimation that, in such a case, replevin might be - maintained by the original bailor. The rule laid down in 17 Ohio, does not seem to have been worded so as to meet all the cases which, may arise under the action of replevin, and should doubtless be so-expressed as not to allow of a recovery on the bond for a greater interest than was claimed by the plaintiff in replevin. And where, as-in the case at bar, the plaintiff claims the general property, “the bond takes the place of the property ^replevied to the extent •of the interest of the defendant in replevin;-” but where, as in the •••case supposed, the plaintiff only claims a special interest therein, the words, not exceeding the title or interest claimed by the plaintiff in :replevin, or other equivalent words, should be added. In that case, .a recovery upon the bond, if the plaintiff should fail, would be limited to the estate or interest claimed by him, and a recovery by the ■plaintiff would present no obstacle to a suit by the defendant on the termination of the bailment to regain the property if still withheld from him.

We have been referred to divers cases in New York and Massachusetts (9 Met. 444; 8 Ib. 298; 1 Pick. 287; 6 Hill, 560; 1 Comst. 165), to the effect that the institution of an action of replevin, and suing out the writ, giving bond, etc., do not divest the title of the defendant to the thing replevied. But as before intimated, the statutes of both those states are materially variant from ours. They provide substantially that the plaintiff shall give bond, among other things, for the restoration of the property, if the right is adjudged against him, and also that, in such event, the defendant shall have judgment for a return of the goods. Statutes of N. Y., revision 1829, vol. 2, p. 521; Revised Statutes of Mass, of 1836, 664. It is obvious that these decisions can shed no light upon the construction •of our statute in this particular.

The statute of New Hampshire provides that the plaintiff in replevin, before service of the writ, shall give bond to the sheriff, ■with sufficient sureties, in a sum not less than double the value of the property replevied, conditioned to prosecute his suit and to pay .all such damages and charges as may be awarded against him (Statutes of N. H., compilation of 1853, sec. “5, p. 520); and the form of the writ (page 464) requires him to deliver the property to the plaintiff if such bond is given. These provisions are nearly identical with those of our statute, and it was held in Bell v. Bartlett, 7 N. H. 191, that the judgment *in that state must be “for the value of the chattels, and not for a return of them.” See, .also, to same point, Whiting v. Levert, 2 Foster (N. H.), 10; Messer v. Bailey, 11 Ib. 9.

So in Pennsylvania, where, in replevin, it appears that the de•fendant has the election to surrender the property, or to retain it •on giving security, it was adjudged in Fisher v. Whoolery, 25 Penn. St. 198, that, where the defendant elected to retain the property and give the bond, the plaintiff’s right to the property was forever gone, and that it was turned into a mere chose in action, a right to the value in damages. The court say: “But clearly, after the property is retained by the defendant on the claim of ownership and security given to the sheriff, there is no remedy at law by which the plaintiff can repossess himself of it.”

But it is unnecessary to multiply authorities. The question must mainly depend for its solution upon the provisions of the statute, and we are satisfied that the construction heretofore indicated, is the true one, and 'that the bonds, given in the suits in replevin set forth in the agreed case, as between the parties, took the place of the property to the extent of the interest of the defendant in replevin, and that the hogs, upon their delivery by the sheriff to the plaintiffs in replevin, became the property of the plaintiffs, divested of all right and interest of the defendant in replevin.

If the thing replevied is of a peculiar or factitious value, such a.s family portraits, heir-looms, personal mementos, and the like, the ■defendant will not necessarily be compelled to accept the appraisement in lieu of the article, as in such case, the chancery powers of the court might be invoked to restrain alienation and compel a return if the right thereto should be determined in his favor.

Lastly, it is insisted, that if the construction we have given to the act regulating actions of replevin, be the true one, then the act is unconstitutional, as directly «infringing the provisions of ■our (old) constitution, article 8, that “private property shall ever be held inviolate,” and also that “every person, for an injury done him in his lands, goods, person, or reputation, shall have remedy 'by the duo course of law.”

It is worthy of remark, that the cases before cited in Pennsylvania and New Hampshire, as well as those in Ohio, were all obnoxious to this objection, similar provisions being found in the constitutions of those states, and yet in none of them was this point even suggested, though in other respects the cases seem to have been severely contested and fully considered. In Arkansas, however, the objection seems to have been taken, and to have been summarily disposed of in two cases. Prater v. Frazer, 6 Eng. (Ark.) 249, and Freeman et al. v. Horen et al., 3 Ib. 355. In both these cases, it was urged that the action of replevin in the detinet, which deprived the party of his property, and afterward tried the'right of property, was unconstitutional, under a similar provision of the constitution of that state. But the court, in few words, overrule the objection, saying, “It was intended as a, speedy and efficient remedy for the cases specified in the act, leaving the rights of the parties to be settled by the subsequent adjudication of the court.” The statute of Arkansas required a return of the property, if the right thereto was determined in favor of the defendant. Still the temporary transfer of the property, and control over it, from the defendant to the plaintiff, was, pro tanto, a. violation of the constitutional right of the owner, if the permanent transfer of our statute is to be so regarded. No other cases have been cited, nor have we been able to discover any in which the-point has been raised.

The plaintiff’s affidavit of his property and right of possession, and the defendant’s possession and • claim of right to the-same property, make a case of disputed ownership to the chattel replevied. Our statute directs its seizure and delivery over to the plaintiff, if he will give bond with ^surety to pay to defendant all damages; and if ho do so, then the disputed right of the defendant to the chattel becomes a mere right in action to-recover its value from the plaintiff and his sureties; but if the plaintiff fails to give bond, then the property is returned to the defendant, and the plaintiff’s right to the chattel is changed into a mere right to recover its value, in that action, from the defendant. The Pennsylvania statute, perhaps with more propriety, confers this right of election upon the defendant who has the property in possession, but attaches the same consequences to the retention of the property and giving the bond. 25 Penn. St. 197.- See also the-cases above cited in-the New Hamj)shire reports. These statutes, in furtherance of the principle of public policy above stated, at once remove the clog upon alienation which would otherwise remain until the disputed ownership is settled, by conferring the-right of property upon one or the other claimants under certain contingencies, and a right of action for its value upon the other. To hold that such a law is obnoxious to the constitutional provisions cited by the counsel for the plaintiff, would uproot a large part of ¡our remedial legislation. It might, with equal propriety, be applied to cases where a transfer of property is effected under proceedings in attachment, or where a title is divested by a failure to comply with our registry acts. Judgment for defendant.

Brinkerhoit?, C. J., and Scott, J., concurred.

Gholson, J., did not sit in this case.

Sutlirr, J.,

dissenting.

It is not claimed, in this case, that the wrongful taking of goods from the owner by one having no right to them, by means of a false affidavit, deprives the rightful owner of his title. Nor is it pretended that the judgment for damages in replevin has any other effect than would adjudgment in trespass for wrongfully taking goods from the rightful owner. It is admitted that in neither case would the judgment, without actual satisfaction, divest the rightful owner of his title.. There remains, then, only one means—to wit, the giving of the bond—by which it can bo pretended that the title to the property, found by the jury to be in Smith, can be claimed to have been taken from him and vested in the plaintiffs in replevin. I do not perceive how the title of Smith could be thereby divested. The bond is only designed as security for the payment of the judgment, and it can only be used for that purpose. If it were of itself payment, no execution could be issued on the judgment.

Indeed, I find nothing expressed in the statute favoring a construction that any proceeding under the'statute, short of satisfaction of the judgment for its value, can possibly operate to divest the rightful owner of the property and vest the title in the wrong-doer, who, by the record, stands convicted of having wrongfully obtained possession thereof from the rightful owner.

The statute provides that if any person shall wrongfully detain' the goods and chattels of another, the owner, his agent, or attorney, may file a prajcipe, affidavit, etc.; and thereupon may have the goods so described replevied by the sheriff. See Chase’s Stat. 1722.

The object of the statute, as expressed, is to give the possession of the chattel to the party legally entitled to the possession ; and that right of possession is all that the action necessarily settles. Thus, not only may the general owner maintain the action, but a bailee may also maintain the action even against the general owner.

Nor can I perceive that the fact of the legislature having provided that the plaintiff, prior to having this summary possession of the chattel on an ex parte application, shall give security to the other party to make good his claim, the same as is required in the allowance of provisional injunctions *and other summary «orders preliminary to a trial, in anywise affects the title in con■troversy.

Again, if the statute were susceptible of such interpretation, or •even if its language admitted of no other construction, I am unable «to see how such effect can be given to it consistent with the constitutional provision, under which enacted, that “ private property ought, and shall evet be held inviolate, but always subservient to the public welfare, provided a compensation in money be made to the «owner.” Article 8, section 4, Constitution of 1802. Under this provision of the constitution it has, I believe, been uniformly held by this court, that unless a statute, by which one’s property is taken for public use, provides means by which comjiensation may with certainty be obtained, the statute is void. McArthur v. Nelly et al., 5 Ohio, 143; Foot v. Cincinnati, 11 Ohio, 408. It has also been uniformly held that the compensation for the injury actually sustained must be made in money. Brown v. Cincinnati, 14 Ohio, 175. If, then, the legislature, in the exercise of the right of eminent domain, can not, in any exigency, take from an individual his right of property for public use, I confess I am unable to see -how, even under the potent plea of public policy, we can, in the .absence of any statutory express provision, by mere construction, transfer one’s title to his property, solemnly adjudicated to be good, ;to the wrong-doer, shown, by the same record, to have no right to .the property.  