author: Smith, J. Cox, J.,

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    January Term, 1886.)
    Before Judges Cox, Smith and Swing.
    The State of Ohio ex rel. Miller Outcalt v. Jos. H. Brewster, Auditor of Hamilton County, Ohio.
    1. Sec. 1298, of the Revised Statutes, does not entitle a prosecuting attorney to receive, from the county treasury, a commission of ten per cent, on the-amount of costs received from the state, and paid into such treasury under the provisions of Secs. 7336 and 7337 of the Revised Statutes.
    Mandamus.
   Smith, J.

The question submitted to us is, whether we ought now to issue a peremptory writ of mandamus requiring the defendant as auditor to issue his warrant on the county treasurer, in favor of the relator, (who was the prosecuting attorney of this county from January 1, 1881, to January 1, 1883,) for the sum of $939.73, being 10 per cent, on the sum of $9,397.35, which it is alleged was received by said county from the state of Ohio, during his official term as such, as costs in criminal cases, tried while he was in office, and in which cases the defendants had been convicted and sent to the penitentiary. A general demurrer has been filed to the petition, and the question is thus raised.

The claim of the relator is based on section 1298 of the Revised Statutes, and the particular language on which it is founded first appeared therein. It reads as follows: “ In addition to his salary,” (which is provided for in section 1297) “ the prosecuting attorney is entitled to 10 per cent, on all moneys collected on fines, forfeited recognizances, and costs in criminal causes, provided that said commission shall not in any one case exceed $100.

And this and the preceding section are the revision of the. statute passed March 17, 1873, vol. 70 O. L., 67, which; after fixing the salary of the officer, says: “ Provided, that the county commissioners shall allow prosecuting attorneys 10 per cent, on all money collected on fines, forfeited recognizances, and costs collected of defendants in criminal cases; provided, further, that the sum to be paid to such prosecuting attorney as commission for collecting fines and forfeited recognizances shall not exceed $100 in any one case.” ■

It is admitted on all hands that under this statute of 1873, no claim of this character could properly have been made. It expressly provided- that such commission, so far as costs in criminal cases were concerned, could only be allowed, when such costs were “ collected from the defendant.” But it is urged here, that under the statute, as it now stands, it is clear that such officer has a legal and valid claim to the commission on the costs in criminal cases, received by the county from the state — that it is a collection of costs in criminal cases, and practically by the prosecuting attorney; and that there is no longer any limitation in the law that they must be collected of the defendant to entitle him to such commission, and consequently that there is no reason why the relator should not be entitled to receive the same from the county.

Is this claim well founded? There certainly can be no ques-' tion but that it is a plausible one. The omission from the revising statute, of the words before referred to, to say the least of it, has the effect to make that doubtful which was before clear and explicit, and to render it uncertain whether the same meaning is to be given to the new statute as to the old. If the change in this respect was made by the commissioners appointed to revise the statutes in force in the state, and was done in the exercise of the power conferred upon them by the law under which^they were appointed, viz., “ to bring together all of the statutes and parts of statutes, relating to the same matter,” * * * * “ and to make alterations, supply omissions, and amend imperfections in the acts, so as to reduce the general statutes into as concise and comprehensive a form as is consistent with clear expression of the will of the general assembly, rejecting all equivocal and ambiguous words, and circuitous and tautological phraseology,” then it must be admitted that the change was not a happy one.

But the legislature adopted the sections as they now stand, and, it may well be, well knowing and intending the change ; and a construction must be placed upon it as it stands, looking at the language actually used, in the light cast upon it, if any, by the statute as it was before the revision, of the acts in pari materia, and of the decisions of the supreme court, as to the manner in which revising acts should be viewed by a court called on to construe and interpret them.

There has been no decision of our supreme court as to the meaning of the statute. If there had been, of course, it would have been unnecessary to raise the question here. In the argument of the case, however, counsel for the relator has stated to us, that several courts, whose judgments and adjudications are entitled to weight, and among others the district court of Licking county, have held that under the statute as it now stands, prosecuting attorneys are entitled to commissions in such cases. In the court of common pleas of Clermont county, as one of the members of this court has personal knowledge, a different conclusion was reached. How fully the matter was presented to these different courts, we do not know, or what reasons were given for any of these holdings.

But while we concede that the question is one not free from doubt and difficulty, and which, as involving the interests of all of the counties of the state, and concerning which there is a difference in practice, ought to be passed upon by the supreme court, as at present advised, we have not been able to arrive at the conclusion, that it was the intention of the legislature, by this revision, to change the law so as to give to prosecuting attorneys a commission in such cases.

Our reasons for this, briefly stated, are these: In the first place we do not think that the reception of costs in this manner by the county from the state, is such “a collection of costs in criminal cases,” as is contemplated by the statute. And it is not a collection at all by the prosecuting attorney, and we think in reason and fairness, it should be done by him, or through his instrumentality, to entitle him to commissions thereon. It is so in all the other cases mentioned in this connection; the statute gives him the 10 per cent, on all moneys collected on fines, forfeited recognizances and costs in criminal cases.” So far as fines and costs are concerned, section 1273 provides, “ that in every case of conviction, he (the prosecuting attorney) shall forthwith cause execution to be issued for the fines and costs, or costs only, as the case may be, and faithfully urge the collection, until it is effected, or found to be impracticable; and he shall forthwith pay over to the county treasurer all moneys belonging to the state or county, which come into his possession for forfeitures, costs or otherwise.”

Here an absolute duty is imposed upon him. He is to put into operation the process of the law. If anything is collected, he it is who is to receive the money from the sheriff, or the defendant, and pay it to the treasurer, and it is for these services he is to be compensated by the commission thereon.

So as to the other collection mentioned, viz.: on forfeited recognizances. The same section, 1273, requires him to bring and prosecute on behalf of the state, all suits in which the state is a party, and section 7183, expressly requires this to be done to collect forfeited recognizances — and for this too, he is to be compensated by the commission.

But when we come to the regulation of the mode and manner in which, in certain cases, the state refunds money advanced by the county in the payment of costs, he has absolutely nothing to do with it. He renders no service — he has no voice in the matter, and the money so refunded does not pass through his hands. It is paid by the sheriff or auditor of state, directly to the clerk (sections 7336-7). If in all the other cases where the commission is allowed, the object seems to be to compensate the officer for services rendered, on the doctrine of the maxim “ noscitur a sociis,” we would conclude that the same was the case in this instance, and that the legislature did not intend to adopt a different rule as to one, and to provide for payment to an officer who had rendered no service in its collection. And the idea that it was the object of this provision, to make the prosecuting attorney zealous in the discharge of the duties of his office, and to procure a conviction for a felony in a case where the defendant, if convicted of a misdemeanor only, could not, on account of his insolvency, pay the costs, ought not to be entertained for a moment. It is not at all probable that the legislature would offer such an inducement to an officer, whose duty it is to protect the rights of the citizen as well as those of the state. We have never had such a policy in our state, and it would be a step, and a long one, I think, in the wrong direction.

2. But we are further of the opinion that the reception of costs by the county from the state, under such circumstances, is not a collection of them, in the meaning of the statute. The prosecuting attorney is the representative of the state in the prosecution of crimes and offenses; and at the same time he acts in the interest of the county in which he is elected. So far as the prosecution of offenses is concerned, the interests of the two are, and should be identical. The state in the exercise of its sovereign power has seen proper to provide that in some cases the costs should be paid by the county without any return, unless they can be collected of the defendant. In others, it provides that the county shall advance them to the parties interested, but assumes to return to it the amount thus expended, if it can not be collected of the defendant. Now, if a claim is committed to an attorney for collection, and'he recovers a judgment for his client, for the amount of the debt and costs incurred, but cannot collect either from the defendant, the payment of these costs by the plaintiff would hardly be considered a collection of them. The idea of a collection is the obtaining of the money due from the antagonist, and not from the client. It is true that in the matter now under consideration, the money received from the state for costs, comes into a treasury, distinct from that of the state, viz., of the county, a separate political organization, to carry on the business of the people residing therein, and thus puts that treasury in a better financial shape than it otherwise would have been, but this does not, under all the circumstances of the case, seem to us to be a sufficient reason for calling this a collection.

3. But looking at this statute itself as a revision of a former law, there is much reason to suppose, that the same construction should be placed upon it that would have been given to the original act. The general rule on this subject is well stated by Judge Okey, (himself a member of the commission which revised our statutes) in the decision of the case of Allen v. Russell, 39 O. S., 336. He says: “ where one or more sections of a statute are repealed, and re-enacted in a different form, the fair inference is, in general, that a change in meaning was intended, though even in such a case, the intention maj1, have been to correct a mistake or remove an obscurity in the original act, without changing its meaning. But when all the general statutes of the state, or all on a particular subject are revised and consolidated, there is a strong presumption that the same construction which the statutes received, or if their interpretation had been called for, would certainly have received, before revision and consolidation, should be applied to the enactment in its revised and consolidated form, although the language may have been changed,” and to these propositions he cites quite a number of Ohio cases — but he adds : “ Of course, if it is clear from the words, that a change in substance was intended, the statute must be enforced in its changed form.”

In the revision of this statute there was an evident attempt to comply with the law, and to bring together all the statutes relating to the prosecuting attorney, his duties and his fees, and presumably to discharge all of the other duties imposed by the law on the commissioners. .

While the phraseology of the new statute differs in some particulars from that of 1873 thus revised, and there is some transposition of sentences, it is evident, we think, that the general meaning of the two is the same. In both it is provided that the prosecuting attorney be paid a salary — in certain counties a fixed sum, and in the others a sum to be regulated by the number of inhabitants, as shown by the last proceeding federal census, and these provisious are in substance the same in both acts. In addition thereto, both provided for a commission to the officer of 10 per cent, on all moneys collected on fines, forfeited recognizances and costs in criminal cases. The only differences between the two are, 1st, the omission of the words before referred to (“of the defendant”), 2nd, extending the provision that the commission in any one case shall not exceed $100 to costs in criminal cases, and 3rd, the omission (in terms at least) of the clause, which provided for the allowance by the county commissioners of these commissions, though, as I omitted to say, both laws provide that the salary and the times and installments in which it is to be paid, are to be fixed and determined by the county commissioners; and it is a question whether under this law as revised, the action of the auditor in issuing the warrant is not on the same principle to which we have referred, to be predicated on the action of the county commissioners, allowing the same — but this is not clear to our minds, and we do not decide it.

.But in view of the fact that the commissioners of revision were not called upon to make changes in the meaning of the laws, when that meaning was clear and explicit and not in •conflict with other statutes, and of the strong presumption which it is held arises, that it was not intended by the revision to change that meaning, and of the other reasons which we have assigned, it does not seem clear to us, that a change in the meaning of the law was intended by the legislature. 'The fact that courts have differed as to the meaning of the ■statute, and that gentlemen, learned in the law, although the statute has been in force for more than five years, have not until very recently asserted such a claim, though drawing their salaries and percentages under its other provisions all the while, is one not without weight on this point, and tends to show that the construction now claimed for the statute is not the one which would naturally occur to a person,' even if interested to recover from the county all of the compensation which the law would give to him. We feel constrained therefore to refuse to issue the peremptory writ, and the petition will be dismissed.

O. Bently Matthews, for the relator.

Rufus B. Smith, county solicitor, for auditor.

Cox, J., dissented.

Cox, J.,

dissenting.

I am compelled to dissent from the opinion of the majority of the court in refusing to allow the writ in this case. I think it ought to be issued, and the auditor directed to pay the claim.

There is such a radical change made by the Revised Statutes upon this subject, as to force the idea that it was not an accidental or a mere verbal change, but one that had been considered and determined upon, to give a compensation to prosecuting attorneys different from that provided in former statutes.

By the former law this percentage was limited to that on costs collected from the “ defendant

Why shoulcj this word have been omitted from the revision if no change was intended ?

As it was before, it limited the percentage to a single source. The omission removes the limitation and extends it to costs, etc., collected from any source. It is true, in one sense, that the prosecuting attorney is the agent of the state as the prosecutor of criminal cases. But in another sense he is a local officer, elected in a county to represent the interests of the state in that county. In the cases he prosecutes, the costs are first paid out of the county treasury, and if collected, either from the defendant, or the state, are returned to the county to reimburse it for the costs so advanced. (R. S.,1305.) It is to the interest of the county that they be collected from some source. And to secure that end better; some incentive to the officer in the way of additional compensation would seem to have been in the minds of the legislators. The state only agrees to refund costs to the county in cases where there has been a conviction of a penitentiary offense, and the convict delivered to the penitentiary.

The payment of additional compensation in cases of conviction may be, and is, an innovation in-the practice of this state. But it has been the law in the U. S. Government, and in almost all the states, to give to the prosecuting attorney or district attorney, an additional compensation in cases of conviction, as a reward for his vigilance. Most of the states provide a certain annual or per diem compensation to such officers, and an additional one in cases of conviction for different offenses, the amount varying according to the grade of the offense of which the prisoner is convicted.

Why may this not be done in this state ? It is only a different manner of compensating the officers, and this may be made as well by a percentage on costs collected on conviction, as to fix a gross sum per annum. And this universal practice in the different states may well have been the reason which operated in the minds of the legislature in making the change. An additional argument may be drawn from the fact that it has been the settled law of the state for years to authorize the county commisioners to allow fees to officers in cases where the state fails, and for expenses incurred in hunting persons charged with felony who have fled the country. Rev. Stats., secs. 1308 and 1309.

But it is said that this would be ah innovation on the long established policy of the state. So it is, and, therefore, it can hardly be conceived that the law would have been so changed, unless it was so intended. I grant that the general rule is that when a statute is revised and re-enacted, with slight verbal alterations, that the same construction is to be given in the revised and consolidated form, although the language has been so changed. But where it is re-enacted in a different form, and substantial words are omitted or added, which give an entirely different meaning to it, then the only inference can be, that the legislature intends the change to be a substantial one, else it would not have been made.

But it is said that these costs were not collected. It is true that no suit was instituted, nor was there one necessary. The state has said by its statutes that whenever a convict is delivered from any county to the- state, it will repay to the county the costs which the county has expended in the conviction. If A. authorizes B. to expend money for him, and agrees to refund it, does not B. when he receives the money from A., either by himself or his agent, in reality collect it from A. ? It certainly is not necessary to institute a suit in order that the money so obtained shall come under the designation of a collection.

It is said, however, that these costs are not collected through the agency of the prosecuting attorney, and therefore he is not entitled to them.

It is admitted, however, that if the costs were collected from the defendant, that the prosecuting attorney would be entitled to his percentage. This has always been the practice. But how can it be contended under the statute, that when the costs are collected from the defendant, that it is any more through the agency of the prosecuting attorney than when repaid by the state ? While section 1273 provides that the prosecuting attorney shall issue an execution for costs and collection, it is also provided by section 7333 of the Revised Statutes, that in cases of conviction of felony the “clerk” shall issue an execution for the costs, which shall be served and returned by the sheriff, and the sheriff shall sell any property levied on, and pay out of the proceeds the costs.

Here, in the actual collection, the prosecuting attornéy does nothing, and yet he would under the old law and the present construction of the court of the revised law, be entitled to his percentage.

And so when the costs cannot be made of defendant on execution, they are refunded by the state on the certificate of the clerk. It is the execution issued by him which collects the money from the defendant, and the certificate from him which in the other case collects it from the state.

In neither ease is it necessary for the prosecuting attorney, either to issue an execution, or certificate, or personally to receive the costs. He is the actor, the efficient agent in the return to the county where, as prosecuting attorney, he procures the conviction of the offender; the subsequent sentence, delivery to the warden of the penitentiary, and collection of the costs from the state, are but the effects of his efficient action. The case of Smith v. Linn County, 55 Iowa, 232, I think settles this principle.

But it is said that the state is the client of the prosecuting attorney, and the payment to him of a percentage on money refunded to the county, is not a collection for the defendant, but for his client. Admit this to be so. So is the salary which the state pays him, and if, in addition to that, she sees proper to give him an additional reward for vigilance in the conviction, and withhold it on non-conviction, who shall complain ? If the state holds out this additional inducement to the officers for vigilance, is it not like the contract which clients in civil life often make to ensure energy and vigilance in the prosecution of private claims, and which, inducing extraordinary labor and watchfulness, often repays far more than the outlay ?

I am informed that the construction I have placed on this statute has been carried out in a number of counties of the state. ' It has also been so held in a similar action in the district court of Licking county, a court- of co-ordinate jurisdiction with this court.

It is intimated that even if the relator were entitled to the amount, it should be in another form of action, on application to the county commissioners for the allowance. I can see no reason for this. While sec. 1297 provides that the salary of the prosecuting attorney shall be fixed by the commissioners, sec. 1298 allows absolutely in addition to his salary the percentage on costs. It does not require any additional allowance. The amount is ascertained, it is in the treasury, and the auditor is the proper person to call on to draw it out.

I think the writ should be awarded.


source: Caselaw Access Project

author: Bradbury, J.

license: Public Domain

text:
    (Fourth Circuit — Pickaway Co., O., Circuit Court
    Nov. Term, 1885.)
    Before Judges Cherrington Bradbury and Clark.
    W. & S. Jacobson & Company v. The Adams Express Company.
    1. Where-a package was delivered to a common carrier m New York, to be delivered in Ohio, and was lost bynegligence, in an action forsuch loss, the place of delivery is the place of performance of the contract and the law of Ohio governs.
    2. In the foregoing case, a receipt of the company, stating that, in no event shall the holder demand beyond the sum of $50, at which the the article forwarded is valued, “ not signed by the shipper and no statement made by him as to value,” is not a valid stipulation against a loss by fraud or negligence.
    Error to the Court of Common Pleas of Pickaway County.
    The plaintiffs are a partnership of merchants, doing business at Circleville, Ohio. One of the partners, S. Jacobson, resides in the city of New York. On or about the 13th .day of November, 1882, he purchased for his firm a first-class seal skin coat of Lyon Brothers, in the city of New York, and directed them to forward it to W. & S. Jacobson & Co., at Circleville, Ohio. The firm of Lyon Brothers had an arrangement with Friedlander & Casper, to attend to the shipping of their goods. Lyon Brothers put the said seal skin coat in a package and addressed it to the plaintiffs at Circleville, Ohio. The shipping clerk of Friedlander & Casper, S. L. Solomon, received the package from Lyon Brothers on the 13th of November, 1882, addressed to W. & S. Jacobson, Circleville, Ohio, and on the same day he delivered it to the employé of the Adams Express Co., who goes about from store to store collecting parcels, and is called “ the collector.” The shipping clerk delivered the parcel containing the coat to “the collector,” who checked it off upon the receipt hereafter mentioned and wrote his name under the words, “ by whom received.” The receipt was taken from a book of receipts iff the possession of the shipping clerk, which Lyon Brothers had nothing to do with, and was as follows: .
    Not Negotiable. Domestic Bill of Lading.
    Received of Friedlander & Oasber, 374 Broadway, N. Y., the following articles, subject to the contract below:

      Which it is mutually agreed is to be forwarded to our Agency nearest or most convenient to destination only, and there delivered to other parties to complete the transportation.
    It is part of the consideration of this contract, and it is agreed, that the said Express Company ARE FORWARDERS ONLY, and are not to be held liable or responsible for any loss or damage to said property while being conveyed by the CARRIERS to whom the same may be by said Express Company entrusted, or arising from the dangers.of Railroads, Ocean or River Navigation, Steam, Fire in Stores, Depots, or in Transit, Leakage, Breakage, or from any cause whatever, unless, in every case, the same be proved to have occurred from the fraud or gross negligence of said Express Company, or their servants; nor, in any event, shall the holder hereof demand beyond the sum of FIFTY DOLLARS, at which the article forwarded is hereby valued, unless otherwise herein expressed, or unless specially insured by them, and so specified in this receipt, which insurance shall constitute the limit of the liability of the Adams Express Company. And if the same is entrusted or delivered to any other Express Company, or Agent, (which said Adams Express Company are hereby authorized to do), such Company or person so selected shall be regarded exclusively as the agent of the shipper or owner, and as such, alone liable, and the Adams Express Company shall not be, in any event, responsible for the negligence or non-performance of any such Company or person; and the shipper and owner hereby severally agree that all trie stipulations and conditions in this receipt contained, shall extend to and inure to the benefit of each and every Company or person to whom The Adams Express Company may entrust or deliver the above described property for transportation, and shall define and limit the liability therefor of such other Company or person. In no event shall The Adams Express Company be liable for any loss or damage unless the claim therefor shall be presented to them, in writing, at this office, within thirty days after this date, in a statement to which this receipt shall be annexed. All articles of GLASS, or contained in glass, or any of a fragile nature, will be taken at Shipper’s risk only, and the Shipper agrees that the Company shall not be held responsible for any injury, by breakage or otherwise, nor for damage to goods not properly packed arid secured for transportation. It is further agreed that said Company shall not, in any event, be liable for any loss, damage or detention, caused by the acts of God, Civil or Military authority, or by Rebellion, Piracy, Insurrection, or Riot, or the dangers incident to a time of war, or by any riotous or armed assemblage. If any sum of money, besides the charge for transportation, is to be collected from the consignee on delivery of the above described property, and the same is not paid within thirty days from the date hereof, the Shipper agrees that this Company may return said property to him at the expiration of that time, subject to the conditions of this receipt, and that he will pay the charges for transportation both ways, and that the liability of this Company for such property while in its possession for the purpose of making such collection, shall'be that of Warehousemen only.
    The defendants are common carriers, and had a principal office in the city of New York, and one in Jersey City. According to their rules, some parcels, when received, went directly to the principal office in'New York City, and others to the office in Jersey City. At the time the package was delivered to the collector nothing was said by anybody as to the value of the goods, and no mark was placed on the package to indicate the value.

      The package never reached its destination, and in fact never was heard of after it was delivered to the collector. It ■could not be traced to the office of the company in New York City or in Jersey City, and there was no proof to show when or where it was lost. There was testimony tending to show that the peculiar manner in which seal skin coats were always put up was known to the collector, and was sufficient to indicate to him that the package contained a valuable article.
    The action was brought against the defendants as common carriers, and a copy of the receipt was annexed to the petition. The defendants answered, admitting that they received the parcel before mentioned, in the city of New York, and executed and delivered the receipts, but had no knowledge of the •contents or value of the parcel. For a second answer, the defendants alleged that the contract was made in the state of New York and governed by the laws thereof. That by the laws of the state of New York, the shippers, Friedlander & 'Casper, were, as to the carriers, the owners of the goods, and as such, had a right to contract, and did make the contract contained in the receipt. That by the contract the defendant was in no case to be liable for any loss or damage, unlesss the claim was presented within thirty days after the date of the receipt, in writing, with the receipt annexed. That it was not so presented. And for a third answer the defendants alleged that the package was received, and the contract made and delivered in the state of New York; that the receipt was the only contract between the parties; that the'defendants under said contract were forwarders only, and were not liable for any loss or damage arising from the dangers of railroads, ocean or river navigation, steam, fire, etc., or any cause whatever, unless the same be proved to have occurred from the fraud or gross negligence of the defendants, nor shall they be liable for more than $50 in any event, at which the article is valued; that by the laws of New York the said valuation constitutes an agreed valuation of the package, and the loss, no matter how it occurred, is limited to $50; that the package at the time of delivery was not stated to be worth more than $50; that the defendants had a right to exact an additional charge, by the laws of New York, if the declared value exceeded $50; that by the laws of said state, the owner can not. prove any value exceeding $50, if the package is not declared to be more valuable than $50; that the loss occurred in the state of New York.
    In their fourth defense the defendant alleged that by the laws of New York it was the duty of the owner at the time of the delivery of the package to declare its value if they desired, in case of loss to recover more than $50; that mere silence oni the part of the shipper, without artifice, on his part, or inquiry by the carrier, constitutes a fraud, and such non-disclosure prevents a recovery beyond $50. •
    The fifth defense alleged that the defendant had no knowledge of the contents or value of the package; that the plaintiff represented to the defendants, and it was agreed between them, that the value should be $50; that defendants made-their charge accordingly, and are now willing to pay $50. That plaintiff knew the rates for transportation were regulated by the value of article shipped, and that greater care was always exercised in proportion to the value; that the defendants would have charged more if they had known the value of the sack to be $275.
    As to the second defense the paintififs pleaded a waiver,, and as to the others, a denial.
    Testimony was offered tending to prove the laws of New York, to be as alleged, also as to the waiver of the notice of loss and claim for damages, and as to other matters.
    In the court of common pleas the case was submitted to the court, and judgment rendered for the plaintiff for $50.00. A motion for a new trial was made by the plaintiffs which was overruled, and a bill of exceptions taken.

      Page, Abernethy & Folsom, for plaintiffs:
    1. The contract was to be performed in Ohio and is governed by the laws of Ohio. Story on Conflict of Laws, section 280; Curtis v. R. R. Co., 74 N. Y., 116, (30 Am. Rep., 271); Goddard v. Sawyer, 9 Allen, 78; Bright v. Judson, 47 Barb., 29; Balme v. Wambaugh, 38 Barb., 352; McFntee v. Steamboat Co., 45 N. Y., 34; - Dyke v. Erie Ry., 45 N. Y., 113; 12 Gray, 244.
    2. The stipulation that the defendants are not to be liable beyond $50, is not binding in Ohio. U. S. Express Co. v. Bach-

      man, 28 O. S., 144; Gains v. Ins. Co., 28 O. S., 438; Gault v. Adams Express Co., 48 Am. Rep., 746; Railroad v. Sympson, Kansas Sup. Ct., Nov. 9, 1883, 17 Rep., 44; Jones v. Vorhees, 10 Ohio Rep., 145.
    3. Non-delivery is gross negligence. Hutchinson on Carriers, section 31; Darling v. Younker, 37 O. S., 488; Bank v. Zent, 39 O. S., 106.

      Festus Walters, for defendant,
    cited numerous authorities not in the possession of the reporter.
   Bradbury, J.

We think the testimony shows that the conditions required by the defendant in regard to the presentation of the claim and receipt in 30 days were waived by them. We do not find that the plaintiff was guilty of any fraud by the mere fact of silence in regard to the value of the seal sidn sack, at the time it was delivered to the company. There are decisions of courts of high authority which require the carrier to make inquiry of the shipper as to the value of the goods, if he deems the value material. If the owner at the time of the delivery of the goods should, by statements or conduct, deceive the carrier this would present a different case, and might be a bar to a recovery; but we do not think that mere non-disclosure of the value of the article, in Ohio, constitutes a fraud.

There is no doubt of the truth of the general proposition that the laws of the country have no binding force beyond its territorial limits and their authority is admitted, not “ ex-proprio vigore,” but, “ ex. comitate.” 2 Kent, 457. Therefore, a court sitting in Ohio, and bound to minister the laws of Ohio, cannot be expected to adopt and enforce the laws of another state, unless compelled to do so by some cogent reason. If there is a conflict between the laws of this state and those of another state, when a contract is sued on here, which was made in the latter state, we should expect to have cause shown'.why the laws of Ohio should not be followed. In a case decided by the. highest court of the state of New York (Curliss v. D., L. & W. R. Co., 74 N. Y., 116), baggage was delivered to the said railroad company at Scranton, Penn., for carriage to the city of New York. The baggage was lost.' It was held that the contract was not affected by a statute of Pennsylvania limiting the carrier’s liability. The court said: “ One of the rules applicable to the subject, is that the lex loci contractus is to govern unless it appears upon the face of the contract that it was to be performed in some other place, or made with reference to the laws of some other place, and then the rule of interpretation is governed by the law of the place. Dyke v. Erie R. R. Co., 45 N. Y., 113; s. c., 6 American Rep., 43; Sherrill v. Hopkins, 1 Cow., 103. The place of delivery was a material and important part of the contract, and until such delivery, the same was not completed and fulfilled. Upon a failure to deliver the baggage to the plaintiff, in the city of New York, there was a breach of contract; and as the final place of performance was in that city, it would seem to follow, that within the rule laid down, the contract was to be governed, at least so far as a delivery is concerned, by the laws of New York. This certainly was to be in a different place from where the contract was made, and it is a reasonable inference that it was in the contemplation of the parties at the time, and that it was entered into with reference to the laws of the place where it was to be delivered.”

“ So, also, when it appears that the place of performance was different from the place of making the contract, it is to be construed according to the laws of the place where it is to be performed. Sherrill v. Hopkins, supra, 108, and authorities there cited; Thompson v. Ketcham, 8 Johns., 189; 5 Am. Dec., 332; 4 Kent’s Com., 459. The place of final performance of the contract being in the city of New York, although the transportation was mostly through other states, no reason exists, why a failure to deliver the baggage should not be controlled by the laws which prevail at the place of delivery. It is said that the contract is entire and indivisible, and we are referred to some cases outside of this state, which, it is claimed, sustain the doctrine that the locality where the contract was made, in cases of this character, must control. None of the cases cited are entirely similar to the one at bar, and they do not involve the precise point now considered. But even were it otherwise, they are not, I think, controlling, as no reason exists why a contract to deliver baggage should not be governed by the laws of the place, where the baggage is to be delivered.”

We are of the opinion that the law is correctly stated in the foregoing decision, and upon this subject, we have- no difficulty in arriving at the conclusion that the place of delivery, in the present case, was the place of performance of the contract, and that the law of Ohio and not the law of New York must control.

In regard to the question whether a common carrier may restrict his liability for fraud or negligence, we think the law of New York is different from the law of Ohio. The policy of our decisions seems to be decidedly against any such restriction.

In Gains v. U. T. & Ins. Co., 28 O. S., 437, Judge Johnson said:

“ It is settled in Ohio: 1. That a special exception of the liability of common carrier of goods for any loss which may arise from fire, happening without his neglect or fault, may be lawfully created by special contract between the parties, though it cannot be made by general notice known or unknown to the party engaging the services of the common carrier. Davidson v. Grayham, 2 Ohio St., 131; Grayham & Co. v. Davis & Co., 4 Ohio St., 362; Welch v. P., F. W. & C. R. R., 10 Ohio St., 65; C., H. & D. R. R. Co. v. Pontius, 19 Ohio St., 221.

2. “ That while a common carrier by a special contract with the owner of the goods entrusted to him may so far restrict his common law liability as to exonerate himself from losses arising from causes over which he had no control, and to which his own fault or negligence in no way contributed, he cannot relieve himself from responsibility'for losses caused by his own negligences or want of care or skill,,and the burden of proof is upon the carrier, to show not only a loss within the terms of the exception, but also the proper care and skill were exercised to prevent it.” Grayham & Co. v. Davis & Co., 4 Ohio St., 362.

There was no special contract in the present case, but a general notice contained in the receipt, and we have considerable doubt whether Lyon Brothers could delegate their authority to Friedlander & Casper to make a special contract, if one had been made.

In Gault v. Adams Express Co., 48 Am. Rep., 746, an action was brought against a common carrier for the loss of certain packages, and the receipt given in that case was like the receipt given in the present case. It provided that in case of loss or damage by the fraud or gross negligence of the company the holder should not demand beyond the sum of $50, at which the article forwarded, etc.

The court said, that inasmuch as this condition undertakes to provide against liability for loss or damage arising from gross negligence, the legal effect of that part of it which speaks of value is not to ascertain and adjust the value of the property, but to limit the damages — the penalty to which the law would have subjected the carrier on account of his fault. By tendering such a condition the carrier substantially says to the shipper : < * * * * J propose to exempt myself from so much of the liability as exceeds $50, by assuming that the actual damages to you occasioned by my fault is only $50, and this I propose to do by assuming that the article is worth only $50.’ This is not in good faith a valuation of property. * * * * The meaning of a clause which operates only in this way is not to be changed by giving it an arbitrary name.”

We think the court erred'in giving the plaintiffs judgment for only $50, and it will be reversed.


author: Haynes, J.

text:
    (Sixth Circuit — Sandusky County, O., Circuit Court
    Oct. Term, 1885.)
    Befobe Judges Upson, Baldwin, and Haynes.
    M. B. Lemmon, Assignee, v. A. E. Hutchins et al.
    1, A regular statutory certificate of the acknowledgment of a mortgage, is, in absence of fraud, conclusive evidence of the facts stated therein.
    2. In case of an assignment by an insolvent debtor for the benefit of creditors the rights of the assignee in the property assigned are no greater than those of the debtor prior to the assignment.
    The facts are stated in the opinion.
    Appeal from the Court of Common Pleas of Sandusky County.
   Haynes, J.

Two cases have been submitted involving the same piece of land. They are substantially one case. The question arises in regard tu the execution of certain mortgages. The case has been submitted to us upon evidence, and we have found on examination that the matter was more difficult of solution ■than we had at first supposed, and I may say in the outset that it is a case that has given us considerable difficulty, and we are uncertain that we have come to a correct conclusion in regard to the matter. But the conclusion to which we have come, and the reasons upon which it is founded, I will proceed to state.

The case, in brief, is this : Two brothers, A. E. Hutchins and Marion Hutchins, had formed a co-partnership to start in some manufacturing business at Clyde. They purchased a piece of land, executing a mortgage back upon it to the owner, and after-wards desired to borrow money from their father. They proposed to execute to him a mortgage upon that property. He had already loaned them some money, and having agreed to loan them more, steps were taken to complete the mortgage and complete the loan. After they had come to a conclusion as to what would be done, the father and one of the brothers came to Fremont for the purpose of executing a mortgage. The other brother remained at home and told his brother to go down and execute the mortgage and close the matter up. The other brother came here. The mortgage was drawn, purporting to be signed by each individual member of the firm, was taken before a magistrate, was acknowledged there by the one on behalf of the two, was then taken back to Clyde and delivered to the father, and the money that was to be loaned, $550, was paid over to the boys, and certain notes that the father already had were taken up. The mortgage was for $2,000. The mortgage was then signed by the other brother, A. E. Hutchins. That is, it was signed when the brother got back there, before the business was closed up. It purports to be acknowledged and signed and sealed in the presence of two witnesses, and is on the face perfectly regular in form.

Some time afterwards the brothers desired to obtain more money from their father, and negotiations were then had in regard to it, and he agreed to loan them $3,000. Then one brother said to the other, that he should go with the father to Fremont and close up the matter. The brother did come down here with the father, and the mortgage was drawn,.purporting to be signed in the name of each of the brothers, and was then signed by the one brother for both — that is, he signed the name of each. It was then acknowledged in due form of law, and in the presence apparently of two witnesses, and was closed up, being regular in form. They then went back to Clyde, and the other brother was notified of all that had been done. The father then paid over to them the $3,000, and the brothers received it, and the father received the mortgage. The notes in each case were payable by the firm. The mortgages were then placed upon record.

Afterwards one brother, Marion, executed to the other brother, A. E. Hutchins, a deed of this partnership property —of the real estate — for a nominal consideration, arid A. E. Hutchins then went on in business. Subsequently to that he failed and made an assignment to M. B. Lemmon in trust for the benefit of his creditors. One of the suits is brought by the father to foreclose the mortgages, and the other by Moses B. Lemmon, as assignee under the statute, to marshal the liens on the lands and obtain a sale of the lands, and he now, on behalf of the creditors, proposes, or perhaps certain creditors through him, propose, to contest the validity of this mortgage as to the interest of A. E. Hutchins in the property, upon the ground that the mortgage was never properly executed — that it was not executed in accordance with the form of the statute, and the question for us to decide is whether this mortgage is a valid mortgage or not, or one that we will enforce.

In the order of trial here the burden of proof is assumed by the assignee to show that the mortgages were not executed in accordance with the form prescribed by the statute. The proper order of proof, of course, would be for the parties to introduce the record of the mortgages, which would be prima facie evidence of the correctness of the execution of them, and then for evidence to be given by the other party. That form was not gone' through with, but that was the substance of the proceedings, and we take it to be the form in which we shall examine the evidence.

If we admit the evidence, it is, of course, manifest that the statute was not complied with, because one brother was not before the magistrate. In one instance he did not sign the paper, and in neither case was he present. It is sought to maintain these mortgages on the ground that they being executed by one of the firm for firm purposes, in borrowing money for the firm, therefore one member of the firm had the right to sign for both members, and quite a number of authorities are cited here for the purpose of sustaining that position. The principal case is a case in Wisconsin, where a mortgage was executed by one member of a firm, on behalf of the two, upon a store building which stood upon property that was owned by one member of the firm, and which, it would seem, was held by him in trust for the firm or for himself — I do not know that it states exactly which. But subsequently he mortgaged it to another party. The supreme court of Wisconsin held, that one member of a firm might sign an instrument of that kind on behalf of the firm. But the facts, as we understand them, show that the building only was owned by the firm. At least that was what he purported to convey, with sufficient land for it to stand upon — the store building and the land upon which it stood. It was said in argument here, and I suppose it is true — I do not know whether it is or not, except as stated here — that there is no law for the acknowledgment of deeds in the state of Wisconsin before a magistrate; but whether there is or is not, we hardly think that will warrant us in holding in the state of Ohio, under our statute, that a member of a firm may sign a firm name and acknowledge for the firm a deed for the conveyance of real estate.

I believe all the other cases that were cited were cases where a partner had signed for the firm, and in the firm name, writings obligatory under seal, and it was held, and has been generally held at common law, that where they are so signed by one member of a firm, with the knowledge or by the direction of the other members of the firm, they are binding upon the firm. At any rate, we do not place the holding that we shall make upon the ground that the brother as a member of the firm had a right to bind the firm by signing for himself and his brother both their names upon the deed.

The real question in the case, in our judgment, is whether the defendants here will be permitted to offer evidence for the purpose of showing that this acknowledgment was not in accordance with the statute. That brings us to an examination of. the* cases that have been decided in this state upon that question.

The case of Baldwin v. Snowden et al., in 11 Ohio State, 203, is a case that is relied upon. In that case an answer was filed by Mrs. Snowden, against whom the suit had been brought for the purpose of foreclosing certain mortgages upon land that was owned by her, and upon which it was alleged she had given a mortgage to the plaintiff, amounting in all to about $5,000, and in her answer she averred that her husband came to the house on a certain day, she having then been married about a year, and being only about nineteen years of age; that he came into the room where she was sitting with her mother, holding in his hands two or three papers; that he laid them down upon a table and said to her that he would like to have her sign those papers, or wished her to do so. Thereupon, without anything further being said, she signed in aplace pointed out by him her name, and her mother was thereupon requested to put her name to the papers. The husband then took the papers and left. He had with him a young man by the name of Smith, but nothing was said at the time, as the answer averred, as to Smith’s being a notary in any manner or form, nor did he in any way or form speak to the wife or have anything to say to her, what I have stated being all that was said at the time, and the four persons named being the only persons that were then in the room, to-wit, the wife and her mother, and the husband who entered the room with Mr. Smith, the notary. Having set out these facts, and having averred that she did not know what the papers were or what they contained, that she had no intention of giving a mortgage, nor was she informed in any manner that she was signing a mortgage, nor had she authorized her husband to make or deliver any mortgage to the plaintiffs or any other parties in the premises, and having averred that the mortgage was never executed by her, she asked that she be relieved from liability upon it. This certainly made a pretty hard case so far as the wife was concerned, and one that called for relief, perhaps, if any case would. But this is the syllabus of the case :

“A regular statutory certificate of the acknowledgment of a deed of conveyance, made by husband and wife, is, in the absence of fraud, conclusive evidence of the facts therein stated.”

I call attention to the case more particularly because of the decision afterwards reported in 36th Ohio State. The opinion is quite an exhaustive one, and was delivered by Judge Scott, who concluded by saying:

“We doubt whether a case can be found where the certificate of the magistrate has been allowed to be impeached on the ground of fraud, without evidence charging the grantee with notice of fraud, or the officer taking it with complicity therein.”

They held in that particular case, that the wife was bound by the execution of that mortgage; that if she did not want to execute a mortgage, she should have so stated at the time— she should have manifested it; and that these parties were entitled to hold the mortgage.

It should be said here that the mortgagees were not present and had no knowledge of the manner in which- the mortgage was executed, and that is relied upon to a certain extent in the case.

Afterwards, in 1881, a case was decided which will be found reported in the 36th Ohio State, 664, in which the facts were substantially these: A man by the name of John Carskadden had executed a mortgage, and had two other persons execute the mortgage with him. It would seem that the mortgage was really executed for his benefit. He then took the mortgage to the bank, and executed a note to which he signed the names of all three of the parties, and then went before a magistrate and acknowledged the mortgage on behalf of all three, the other two not being present, and never having authorized either the signing of the note or the delivery of the mortgage. The supreme court held that the execution of the mortgage, or the apparent execution of the mortgage by the two others, was not binding upon them. The syllabus of that case is as follows:

“In an action to enforce a written instrument, in the form of a real estate mortgage, and purporting to have been executed and acknowledged as required by statute, an answer setting forth that the defendant never acknowledged the execution of such instrument, is sufficient.”

Some reliance is placed in this case upon the fact of this statement, that-it was sufficient to answer setting forth that the defendant never acknowledged the execution. I suppose that would be a sufficient answer, because it,"in fact, is an answer that he never made the mortgage in any form.

The point that we are discussing really goes to the matter of proof rather than to the matter of pleading. Judge Okey, in deciding this case, made some statements, which, perhaps, tend to a little confusion of the matter, and have caused us some trouble in coming to a conclusion. He says:

“ In Pennsylvania, the officer taking the acknowledgment of a deed performs a judicial act, and in favor of bona fide purchasers, the certificate is conclusive. Williams v. Baker, 71 Pa. St., 476; Heeler v. Glasgow, 79 Pa. St., 79. In Ohio, ‘ the magistrate does not exercise judicial functions in taking such acknowledgment. . . . His act, though official, is purely ministerial.’ Truman v. Lore, 14 Ohio St., 144, 151. Nevertheless, the certificate of such officer, where the grantor actually appeared before him, is, in the absence of fraud, conclusive evidence of the facts therein stated. Baldwin v. Snowden, 11 Ohio St., 203.”

No such distinction is made in Baldwin v. Snowden. The syllabus of the case is absolute on the question that, except in cases of fraud, the acknowledgment cannot be impeached. And Judge Okey, in the case from which we have been reading, citing the rule says :

The rigid enforcement of this rule is required for the security of titles and the repose of society, and, indeed, by every consideration of public policy. Hence, where the testimony to impeach a certificate is uncertain or unsatisfactory, a court. should decline to interfere; but, according to the decided weight of authority, where fraud is clearly shown, the certificate of acknowledgment should be declared invalid.”

Another question is whether or not the assignee in this case stands in any better position than A. E. Hutchins, the assignor. It was said that authorities might be shown in which it would appear that under the decisions in Ohio he would stand in a different or better .position; but no such authorities have been submitted to us in the case. There is a case in 33d Ohio State, Hodgson v. Barrett, p. 63, where it was said by the supreme court that the assignee of property takes the property in the same condition as, or has no better rights in it than the assignor, and we suppose that to be the general rule. • In cases of fraud, however, where the assignee in insolvency seeks to set aside a sale on the ground of fraud, we have no question that he would be authorized to do it, even in cases where the fraudulent vendor or grantor himself would not be permitted to do it.

It is also true that under the chattel mortgage law the same rule holds in favor of the assignee. I thought there were some other cases, although I have not been able to find them. This 33d Ohio State is the only one I have found, and we think the general principle in a case of this kind should be, that the assignee should stand in no better position in regard to this class of property than the maker of the mortgage himself, and we so hold in the case.

Now, we are met by the point that the grantee of the mortgage, the mortgagee in this case, was present during the signing and the acknowledgment of the mortgages. In each of the cases which I have cited, the mortgage was held by a bona fide mortgagee, having no knowledge of the imperfect manner in which the instrument was executed. But we should recollect that in these cases the doctrine of estoppel, the doctrine of public policy, is invoked. Certainly no man can stand in a better position than this man stood in relation to these mortgages. There is no question about the bona fide character of these mortgages, no question about the intention of these parties to execute the mortgages, and there is an utter absence of fraud in the eases. The father, it is true, was present before the magistrate who took the acknowledgments of the mortgages, but was told there that the mortgages were acknowledged in proper form. He paid his money, or, at least, a portion of his money, upon the faith of those mortgages; and the prior debt for which they were taken was a valid, bona fide debt. It seems to us that if there is any case in which on the ground of public policy the doctrine should be enforced that, except in cases of fraud, an acknowledgment should not be permitted to be contradicted, it is just this class of cases. It seems to us that it would be a great wrong if A. E. Hutchins was permitted to come in here himself, or if his creditors, who stand in no better position than he, were permitted to come in here, and to say, after having signed the mortgage in one case, and.in both cases, after the signature and acknowledgment, having ratified the same, that he can now dispute the right of the father to recover upon these mortgages. We are aware, of course, of the statute in this state that provides that powers of attorney shall be acknowledged, and the rule of law that has been held in some cases, that the power to authorize another to sign a mortgage must be of the same class and of the same dignity as the intrument itself, to-wit, both must be under seal. But we look upon this as a case where a man has stood by, and has either signed the mortgage in one case himself, or expressly authorized a person to sign it; and one which more nearly comes to ' a case where a party does a deed himself, than one where he does it by another.

M. B. Lemmon, for plaintiff.

Richards & Heffner, for receiver of Clyde Banking Co., defendant; and Finch & Dewey and J. R. Bartlett, for M. Hutchins, .defendant.

We hold, in conclusion, that neither A. E. Hutchins nor the assignee will be permitted to dispute here the execution of these mortgages in favor of this mortgagee, and that in the cases the plaintiff have a decree of foreclosure for the full amount of his mortgages.

       Stenographic report of oral opinion, revised by Judge Haynes.


author: Shauck, J.

text:
    (Second Circuit — Darke Co., O., Circuit Court
    November Term, 1885.)
    Before Williams, C. J., and Stewart and Shauok, J. J.
    Ezra Baker et al. v. Amanda Weaver.
    1. After maturity of a promissory note, drawn payable to order, and lost without indorsement, a judgment at law may be recovered against the makers thereof without indemnity.
    2. Where the amount due upon such note is less than one hundred dollars, an action thereon is not brought within the original jurisdiction of the court of common pleas by reason of its loss without a general indorsement.
    Error to the Court of Common Pleas of Darke County.
    Amanda Weaver filed her petition in the court of common pleas against the plaintiffs in error, alleging that they were the makers of a promissory note for ninety dollars, delivered to her, and by its terms payable to her or her order; that prior to its maturity the note was lost; that it had never been indorsed by her, or delivered by her to any other person, and that at the time of filing the petition the note was past due. She offered to give such indemnity as the court might require, and prayed for judgment for the amount of the note and interest thereon for six months.
    A motion was made to dismiss the action for want of jurisdiction. This motion was overruled, the terms of a bond to indemnify the makers against further liability upon the note were fixed, and judgment was rendered according to the prayer of the petition.
    Overruling the motion and rendering judgment are assigned as errors.
   Shauck, J.

The form of the motion was appropriate to raise a question as to the jurisdiction of the court of common pleas over the persons of the defendants rather than the subject-matter of the suit. But if the record discloses that that court had not jurisdiction of the subject, its judgment must be reversed.

So far as the amount in controversy determines the question, the ease is admitted to have been within the exclusive jurisdiction of a justice of the peace. But in support of the original jurisdiction of the court of common pleas it is argued that the demand asserted, being upon a note lost before due, was of an equitable nature, and for that reason not within the jurisdiction of a justice of the peace. Thayer et al. v. King, 15 Ohio, 242, is cited as authority for that conclusion. The later decisions in this state cited by counsel for. the plaintiffs in error do not disturb the doctrine of Thayer et al. v. King, and it must be accepted as authoritative of the questions that were there determined. The notes upon which that action was founded, were payable to one Layman or order, by him indorsed in blank and delivered to the plaintiffs, and by them lost after maturity. It was held that a recovery might be had at law, because the maker was not entitled to indemnity against the demands of subsequent holders of the notes. As the notes were in the possession of the plaintiffs after maturity, their subsequent loss could not subject the maker to a double recovery, since no one could thereafter become invested with the rights of a bona fide holder of the notes. From this course of reasoning, as well as from the language of the court, it is plain that a different conclusion would have been reached in that case if the notes had been lost before maturity. Being indorsed in blank, they would have had all the essential elements of negotiability. Until maturity they would have borne no badge of dishonor, and one acquiring them for value, in the course of business, and without notice in fact of their loss, would thereby have become vested with all tbe rights and privileges of a bona fide holder. In this aspect of the case, the fact that the notes were indorsed generally was not less important than their loss before maturity. Since the reporter’s syllabus gives no consideration to this fact, it is not a correct statement of the point decided.

In this view of Thayer v. King, it is in accord with Rogers v. Miller, 4 Scam., 333; Wade v. Wade et al., 12 Ill., 89; Pintard v. Tackington, 10 Johns., 103; Moore v. Ball, 42 Me., 450; and Depew v. Wheelan et al., 6 Blackf., 485.

The doctrine of these cases is that, since courts of law can render only unconditional judgments, where the proper protection of the rights of the maker of a lost note requires, as a condition to a judgment against him, that he be indemnified against such right of action thereon as might vest in a bona fide holder, the jurisdiction of a court of law becomes inadequate, and that of a court of equity attaches. The question of jurisdiction is determined by the maker’s right to indemnity.

M. T. Allen and Devor & Allread, for plaintiff in error.

Qalderwood & Breaden, contra.

Applying this doctrine to the petition of Amanda Weaver, it becomes clear that her cause of action is of legal cognizance. The petition shows that the note was payable to her order, and that she had not indorsed it. By the terms of the note, no legal title thereto could vest in any other person except upon her indorsement. Admitting that an equitable interest in a note so drawn may be acquired without indorsement,- such interest would vest subject to all defenses, including that of a former recovery by the payee.

Judgment reversed.


author: Swing, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    January Term, 1886.)
    Before Judges Cox, Smith and Swing.
    Charles W. Dennis et al. v. Marietta C. Mullane et al.
    The testator, Richard Folger, by his will provided: * * “ On the conditions hereinafter set forth I give and bequeath to my son, P. R. F., • and my two daughters, M. B. P. <fc L. B. D., and their children, which they now have and may have hereafter, until said children shall become of lawful age, the use or rent of my aforesaid real estate, to be divided equally between them, share and share alike. But should any one or more of their children decease before they become of age as aforesaid, such deceased children’s shares of the aforesaid rent of my real estate shall become as common stock and be divided equally between parents and children, share and share alike as aforesaid; but as each one of their children shall become of age, as aforesaid, such child’s share of the aforesaid rent shall become the property of his or her parent during the natural life-time of said parent. But if either of my aforesaid children should decease and leave one or more of their children under lawful age, then shall such deceased parent’s share or shares be paid to their guardian, who shall expend the same in bringing up said minor children until they become of age as aforesaid, at which time all of the aforesaid shares shall be divided share and share alike, among the children of the aforesaid deceased parent until the last one of my aforesaid children shall have deceased, at which time I give and bequeath all of my aforesaid real estate to my grandchildren, to be equally divided among them all, share and share alike.”

      Meld, That subject to the estate granted to the children and the grandchildren, during the lives of the children, the remainder became vested in the grandchildren at the death of the testator, subject to be opened up to let in after-born grandchildren.
    Error to the Court of Common Pleas of Hamilton County.
   Swing, J.

The defendant in error, Marietta C. Mullane, filed her petition in the court below, asking for partition of certain property situated in the city of Cincinnati, in which property she claimed an interest as devisee under the will of her grandfather, Richard Folger (and also a seventh interest by purchase), who died testate in 1841, leaving three children and several grandchildren surviving him. She made parties defendant those whom she claimed to be the owners of the other five-sevenths. The clause in the will of her grandfather under which she claimed as devisee, is as follows : after disposing of the use or rents of said real estate until the death of his last child, the testator says: “ at which time I give and bequeath all of my aforesaid real estate to my grandchildren, to be equally divided among them all, share and share alike.”

The plaintiff, and those whom she made parties defendant, were the grandchildren, or their representatives, who were living at the death of the last child of the testator, who was Peter B. Folger, and who died in May, 1884. But several grandchildren of the testator had died, leaving heirs previous to the death of the testator’s last child. These heirs came in and were made parties defendant to the said petition, and set up their claim to an interest under the will. To these answers demurrers were filed and heard by the court below, which demurrers the court sustained. In this it is claimed here, that the court below erred, and this action is brought to reverse that judgment.

Did the testator intend that all of his grandchildren should have this estate, or only those who were living at the time of the death of his last child ?

By the law of our state, any person of lawful age and sound mind, and not under restraint, may, in accordance with certain forms, by last will, dispose of his real and personal property as he pleases — provided that the disposition is not an unlawful one.

The right being granted, it is the duty of the court to see to its enforcement.

The devisees must have the property. But who are the devisees? Those whom he has intended as devisees. The intention of the testator must therefore be the only object of inquiry by a court.

Many valuable rules have grown up in the law to aid courts in construing wills, but they can only be valuable as they aid the court in ascertaining the intention of the testator. Therefore, all must bend to this one object, the intention. If they cannot aid, they must be cast aside or trodden under foot.

The court should be placed as nearly as possible in the shoes of the testator. It should know his surroundings, the ties that bound him, in order that it may read his words as he read them. Then, holding the will by its four corners, the question is, what has he intended by what he has said ?

One of the leading cases in the construction of wills is the case of Smith v. Bell, in 6th Peter’s Reports. In this, case is found a splendid statement of the rules of construction of wills, and in applying them, the eminent judge who decided the case, has furnished as fine an example of common sense and reason as can be found in our reported cases. The case was certified to the supreme court of th'e United States from the circuit court of Tennessee, by reason of a divided court; but after reading the decision of the illustrious judge, there is no longer any room to doubt what the intention of the testator was.

The will under consideration in that case provided: “ I give to my wife, Elizabeth Goodwin, all my personal estate whatsoever, and wheresoever, and of what nature, kind, and quality soever, after payment of my debts, legacies and funeral expenses; which personal estate I give and bequeath unto my said wife, Elizabeth Goodwin, to and for her own use and benefit and disposal absolutely, the remainder of said estate after her decease to be for the use of the said Jesse Goodwin.” (Jesse Goodwin was his son and only child). The court held that the wife took a life estate and the son a vested remainder.

The court says: “It must be’admitted that words could not have been employed which would be better fitted to give the whole personal estate absolutely to the wife, or which would more clearly express that intention; ” but the gift to the son “ gives the remainder of the estate, after his wife’s decease, to the son, with as much clearness as the preceding words give the whole estate to his wife.” * * * “In the construction of ambiguous expressions, the situation of the parties may very properly be taken into view. The ties which connect the testator with his legatees, the affection subsisting between them, the motives which may reasonably be supposed to operate with him, and to influence him in the disposition of his property, are all entitled to consideration in expounding doubtful words, and ascertaining the meaning 'in which the testator used them.”

“If we look to the situation, of the parties, to the motives which might naturally operate on the testator, to the whole circumstances.so far as they appear in the case, we find every reason for supporting the intention which the words,.giving .effect to all, of themselves import. The only two objects of the testator’s bounty were his wife and his son. Both must have been dear to him.” * * * * “ What feelings, what wishes, might be supposed to actuate a husband and a father having so little to bestow on a wife and child he was about to leave behind him ? His affections would prompt him to give something to both. He could not be insensible to the claims of either.” * * * “ All his feelings would prompt him to make, as far as in his power, a comfortable provision for his wife during her life, and for his child after her decease. This he has attempted to do. No principle in our Mature could prompt him to give his property to the future husband of his wife to the exclusion of his only child. Every consideration, then, suggested by the relation of the parties and the circumstances of the case, comes in aid of that construction which would give effect to the last as well as the first clause in the will, which would support the bequest of the remainder to the son, as well as the bequest to the wife. It is not possible to doubt that this was the intention of the testator.”

The general principles applied by the judge in the decision .of this case, we think, are equally applicable to the case at bar.

At the time of the testator’s death he had living his three children and eleven grandchildren. He provides for them during the lives of his children as follows: “ On the conditions hereinafter set forth, I give and bequeath to my son, Peter B. Folger, and my two daughters, Mary B. Plummer and Lydia B. Dennis, and their children which they now have and may have hereafter, until said children shall become of lawful age, the use or rent of my aforesaid real estate, to be divided equally between them all, both parents and children, share and share alike. But should any one or more of their children decease before they become of age, as aforesaid, such deceased children’s shares of the aforesaid rent of my real estate shall become as common stock and be divided equally between parents and children, share and share alike, as aforesaid. But as each one of their children shall become of age, as aforesaid, such child’s share of the aforesaid rent shall become the property of his or her parent during the natural life-time of said parent. But if either of my aforesaid children should decease and leave one or more of their children under lawful age, then shall such deceased parent’s share or shares be paid to their guardian, who shall expend the same in bringing up said minor children until they shall become of age, as aforesaid, at which time all of the aforesaid shares shall be divided share and share alike among the children of the aforesaid deceased parent, until the last one of my aforesaid children shall have deceased.”

In this, the testator reveals himself as a man of more than ordinary wisdom and foresight. To this provision of the will he had evidently given a good deal of thought and his plan of providing for his children and grandchildren was well worked out.

In this provision of the will no distinction is made between any of his children or grandchildren. They were the sole objects of his bounty, and all were to share it equally. In fact, his grandchildren seem to have been as dear to him as his children, but he was thoughtful ancNconsiderate of all. In the rents and profits, children and grandchildren were to share equally. The share of the minor children to go to the parents or guardians, thus providing for their education and support; but when of age and able to support themselves, their share going to the parent who, then, would in all probability be more in need of support. ft

It was claimed by counsel for plaintiff below, that the fact that the testator provides that in case of a child dying before the parent and while under age, that its share should go to its parent and not its children, provided it should have any, indicates an intention on the part of the testator to prevent his great-grandchildren from in any way participating in the distribution of his estate. But it may be said that after the death of a child and then the death of a grandchild, that the children of the grandchild would inherit the share of the rents and profits; But we fail to gather any intention from the failure to make definite provisions in either contingency.

At the time he made his will, he had but two classes in his mind, his children and grandchildren. His grandchildren were young; he probably did not think of any of them dying ' under age, leaving children. His great-grandchildren were not objects of his bounty; if they got any benefit from his estate, it would be by descent from his grandchildren.

It was urged by counsel in argument that because the testator made no mention of great-grandchildren, or the heirs of his grandchildren, that, therefore, they were not to share in the distribution of his estate, and in passing on the demurrer the court below laid considerable stress on this point. But we fail to see any reason for this. If the estate vested in the grandchildren at the death of the testator, subject to the use to the children and grandchildren during the lives of the children, then the great-grandchildren would take, if they take at all, by descent, and not by devise.

The only question is, when did the estate in remainder vest in the grandchildren? At the time of the death of the testator, or at the time of the death of the last child? And, as a matter of course, whenever it vested, the death of a devisee would cast his estate upon his heirs; and so, if it should be held that the estate vested in the grandchildren living at the death of the last child, if any of those grandchildren should have died the next moment, their heirs would now take by inheritance. Equally so, if the estate vested in the grandchildren living at the death of the testator.

And, while it is true beyond any question, that the testator did not intend that any of his great-grandchildren should take as devisees, it is equally true, from the mere fact that he has not mentioned them at all, that he did not intend that they should not take by’ descent whatever estate they might be entitled to by inheritance.

We come now to the main clause in the will, “at which time,” (referring to the death of his last child), “I give and bequeath all my aforesaid real estate to my grandchildren to be equally divided among them all, share and share alike.”

Did the testator intend the estate, whatever it is, whether a remainder or executory devise, (and we think it makes no difference which), given by this clause, to vest in those grandchildren living at his death, or those living at the death of his last child ?

It is a rule of construction, that every devise vests at the death of the testator unless a contrary intention appears from the will, and this rule of law is not founded wholly on any rule of policy, but upon the fact that, naturally, the testator intends that his will shall take effect, and the rights of devisees under it shall be fixed, at the time of his death. The rule is not a technical one, but is founded on substance and reason. The universal idea among men, even of those who have no knowledge of the law of wills, is that a will takes effect at the death of the testator. We see nothing about this will that authorizes us to disregard the universal rule.

What is there here to show that the testator intended that this estate should not vest until the death of his last child, which, in this case, was forty-three years after his own death ? It is said that the words at which time ” I give and bequeath, clearly show such an intention. But we cannot believe that such could have been the intention of the testator. Wills should be reasonably and sensibly construed, and the other parts of this will show this testator to have been possessed of more than ordinary reason and sense. But what reason can be given why this testator should have intended that this estate should vest at the particular time when the last of his three children should die? Nothing in the very nature of things could have been more uncertain than this. It is difficult to conceive how, in any event, such a thing could ever enter a man’s head. What scheme or what purpose could the testator have had in his mind that he should desire that his estate should vest in the grandchildren that should be living at that particular time, so that if one of his grandchildren should have died the day before the death of his last child, his children should have nothing, but if one had died the day after, his children should inherit ?

There is nothing in the will to indicate such a purpose. On the contrary, the will clearly shows that he made no distinction between his children or between his grandchildren. He loved them all alike.

Why then should he make any discrimination against his great-grandchildren, and especially to base that discrimination on the longevity of their parents ?

But we think the intention of the testator is plain. His purpose was evidently to provide for his children’s and his grandchildren’s support, during the lives of his children, from the rents of his real estate. For that purpose, the real estate is to remain intact; and at the death of the last child it is to be divided equally among all his grandchildren, share and share alike. It is not at that time that he gives, but, at that time the division takes place.

This construction is reasonable, and is consistent with the other provisions of the will, about which there can be no question, and, with it, the will is a harmonious whole.

All of our reports contain adjudications on similar expressions in wills, and without an exception, so far as I have been able to ascertain, they have all been construed to vest an estate at the death of the testator; and the reason for it is to be found more from the fact that'it is the intention of the testator rather than from the fact that the law favors the vesting of estates.

The poverty of our language is such that, unless one is skilled in the law, or has had his attention called to adjudicated cases, it is almost impossible to carve out two or three estates without laying the foundation for claims like the one made in this case.

In one of these cases cited by counsel (in 10 Ohio State, page 102) the testator says: “After my debts, etc., have all been paid, I give and bequeath all the rest and residue of my property to my beloved wife, during her natural life; * * * after her decease I give and bequeath all my property to my two sons.”

Strictly speaking, there was no estate given in this case to the wife until after the payment of the testator’s debts, nor to the remainderman until the death of the wife. And if there had been any reason to have supposed that it was the inten1 tion of the testator, it would have been so held; but there was none, and the court held the estate vested at the death of the testator.

The expression here is the same. The words there were, “ * * * after the death; ” here, they are, “ at which time,” (referring to the death of the last child.) It is the same as saying, “ at his death,” or, “ after his death,” or “ then,” or “ when,” referring to his death.

This cause has been argued before us at some length by able counsel, and numerous authorities have been cited to us which we have examined. Our attention was particularly called to the case of Greyson’s Estate, in 2d De Gex, Jones and Smith’s Reports, page 428 (19th note), where a testator gave real estate to his wife for life, and directed that, after her death, it should be divided share and share alike amongst twelve persons, mentioned by name, or the survivors of them.

All survived the testator, but some died before the widow. It was held that those surviving at the widow’s death took.

The decision in that case was based wholly on the word survivors.” There is no such expression here, nor any one of similar import. The expression in that will, “ on my wife, Margaret Greyson’s, decease,” which is similar to the one here “ at which time,” seems not to have had any weight with the court. In fact it was not urged in argument, or even considered by the court.

We think it unnecessary to discuss any other of the cases cited.

We base our conclusions on the ground that taking the whole will together, and looking to the situation of the parties. the ties which bound the testator to his legatees, and the motives which may reasonably be supposed to have actuated him in the disposition of his estate, that he intended by what he has said that his estate should vest in all his grandchildren living at the time of his death, subject to be opened up to let in other after-born grandchildren.

Reuben Tyler and Prescott Smith, for plaintiffs in error.

Wm. Worthington; Ramsey, Maxwell & Matthews; Paxton & Warrington and Mallon & Coffey, for defendants.

The rule under which we have arrived at this conclusion is certainly the law. So that, if we have erred in our judgment, it has not been as to what the law is, but in its application.

The judgment will be reversed.