text:
    STALE CLAIM FOR. FIRST YEAR’S SUPPORT.
    Circuit Court of Licking County.
    Catherine Evans, Administratrix, v. William D. Evans et al.

    Decided, October Term, 1909.

      Estates of Decedents — Claims Against, Not Enforcible Years after Estate has been Closed — Repose of Rights — Waiver.
    Tbe settlement made by an administrator -will not be opened up forty years after tbe estate was closed in order to let in tbe claim of tbe widow for ber first year’s support, where no sucb claim was asserted at tbe time tbe estate was being settled.

      S. L. James, for plaintiff in error.

      Kibler <& Montgomery, contra.

      Voorhees, J; Taggart, J., and Donahue, J., concur.
    Error to Licking County Common Pleas Court.

       Affirming Evans v. Evans et al, 9 N.P.(N.S.), —

   This action is a proceeding in error; and the object of the proceeding in the probate court was to have revoked letters of administration issued to Catherine Evans, plaintiff in error, on the estate of John E. Evans, deceased.

John E. Evans died intestate in 1869. Letters of administration were granted on his estate to his brother, who filed his final account in 1870.- Upon the confirmation of said account by the court the administrator paid over the balance remaining in his hands to the widow, the said Catherine Evans. She gave her receipt to said administrator for said balance in full settlement of said account and of said estate.

During the administration of said estate no allowance of a “year’s support” for the widow was made or allowed to said plaintiff in error; no application or demand for the same was made by her or any one for her.

Forty years or more after the settlement of said estate application was made for the appointment o.f an administrator on said estate of said John E. Evans, deceased, for the sole purpose of having said “year’s support” allowed to the plaintiff in error, and upon said application the plaintiff in error' was appointed. The only purpose or object of said appointment is to have allowed to said plaintiff in error, as widow of John E. Evans, deceased a “year’s support.” No application for the appointment of an administrator de bonis non on said estate has ever been made; and the plaintiff in error’s appointment is not as administratrix de bonis non, but original administratrix upon an estate which had been fully settled for forty years.

A motion was made in the probate court by defendants in error to revoke the letters of administration granted to the plaint-" iff in error, and such proceedings have been had in the probate and common pleas courts that the case is brought to this court on error.

From the record in the case it is shown that the estate of John E. Evans, deceased, was settled by his administrator in 1870 and distribution was made according to law, and the widow, plaintiff in error, receipted to the administrator for what was coming to her.

If there had been an allowance made to the widow for her “year’s support” in the original administration, and an application for an increase had been made in a reasonable time, before the estate had been settled, it doubtless could and would have been recognized. But will either a court of equity, or law, after so great lapse of time, open up the final settlement of an estate to let in a stale claim such as this one? We think not.

In the 50th Ohio State Reports, page 1, the policy of the law in regard to a claim like this is pretty clearly indicated. At page 14, the court uses this language:

“Our law favors the prompt and speedy settlement and distribution of estates, and has provided adequate remedies and procedure for the accomplishment of that result. Limitations upon the commencement of actions against executors are not more for their protection than for the security of the estates of deceased persons, and the repose of rights and titles derived from and through them.”

Again at page 18, same case, the court say:

“We are also of the opinion, that if the plaintiff’s action was not strictly within any provision of the statute of limitations, or' if the statute was not applicable to it at all, the claim was a stale one when presented to the assignee. It has long been established that equity will refuse its aid, independent of the act of limitations, after great lapse of time. Reasonable diligence must be exercised in asserting their claims by those who seek the active aid of a court of equity.”

The plaintiff in error has slept upon her rights for forty years, and now seeks to open up this estate in regard to a claim she could have asserted at any time during the administration of her husband’s estate before it was finally settled in 1870. We think she has waived her right to have this allowance of her “year’s support” allowed to her after waiting these forty years.

The judgment of the court below is affirmed with costs. Exceptions noted.


source: Caselaw Access Project

license: Public Domain

text:
    REPEATED FINDINGS BY JURY ACCEPTED BY REVIEWING COURT.
    Circuit Court of Hamilton County.
    The Michigan Mutual Life Insurance Company v. Abner L. Whitaker, Administrator.
    Decided, March, 1910.

      Life Insurance — Judgment Against Company on a Policy Twice Set Aside hy Reviewing Court on Weight of the J2vidence — But a Third Jury Returns the Same Yerdict — Evidence for Plaintiff Strengthened and Judgment Affirmed.

    Where the allegations of the petition are such as to mate it inevitable that the evidence would he conflicting, and there have been three findings hy judges in favor of the plaintiff below, a reviewing court will not set the judgment aside for the third time on the ground that it is not sustained hy the evidence, where at the third trial the plaintiff strengthened his case by additional and substantial evidence.

      Robert Ramsey, for plaintiff in error.

      Charles W. Baker, contra.
    Smith, J.; Giffen, P. J., and Swing, J., concur.
    The error relied upon in the above case is that the verdict and judgment of the trial court is not sustained by sufficient evidence. This case has been tried three times, at each trial a verdict and judgment being rendered for defendant in error.
   The judges of the circuit courts of this and the second circuit have heretofore held that the verdicts obtained in the first and second trials of this cause were not sustained by sufficient evidence and reversed' the judgments of the trial court. The opinions of said courts appear in 7 C. C. — N. S., page 1, and 9 C. C.— N. S., page 126, respectively.

After the, case had been reversed by the judges of the circuit court of the second circuit and judgment entered in favor of the plaintiff in error, defendant in error prosecuted error to the Supreme Court, which court reversed said circuit court in entering judgment for plaintiff in error, and remanded the case to the court of common pleas for a new trial. It is the result of this third trial that is now before the court for review.

In the second trial of the case while it appeared that all of the evidence which was offered was read to the jury from the bill of exceptions which had been taken-upon the first trial, yet it did not appear that at this second trial all the evidence was offered which had been offered at the first trial. Whitaker v. Insurance Company, 77 O. S., 518.

In the present voluminous record bringing to this court the evidence offered at the third trial we find new and additional testimony therein on behalf of defendant in error that was not disclosed by the former records. The testimony of Dr. ITaerr and Dr. C. C. Agin materially differs from that given by them at the former trials of the case, in regard to the soundness of the lungs of the decedent, as to whether or not he had valvular heart lesion; that a blow upon the spleen would cause it to become enlarged in a short time and thus affect the condition of the heart; with evidence also tending to show that at the time of the post-mortem held upon the deceased these various organs with the exception of the spleen were sound.

There was also introduced evidence from another and new witness, Dr. J. B. Wilson, who testified that he had examined the deceased for admission to the Lodge of Elks in this city and that he had found his lungs healthy, and that there was no valvular heart lesion.

In the opinion of the judges of the circuit court of the second circuit in the case in which it entered judgment for plaintiff in error, the court s-aid:

"Remanding the case in the former proceedings in error for another trial would then be for the purpose only to secure to the plaintiff below another opportunity to strengthen his case by additional testimony if he could, and not for the purpose of having again reviewed by this court the same testimony and record before it in the former proceedings.”

The record before us now presents the case in a different light than in the former trials of the case, as the new and additional evidence introduced by defendant in error we think is substantial.

Under the allegations of the pleadings it is natural that the evidence would be conflicting, and in the trial of such a’ease where there has been three findings by a jury in favor of defendant in error’s claim, new evidence being introduced at the last hearing in his behalf, it would seem that a reviewing court might well hesitate to set aside the verdict thus returned upon the ground that the same is not sustained by sufficient evidence.

The court has had the evidence in this case under consideration for some time, and is of the opinion that upon the record as now presented the finding of the jury should be sustained, and as there are no errors therein the judgment will be affirmed.


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    INJURY TO A STREET CAR PASSENGER IN A COLLISION WITH AN AUTOMOBILE.
    Circuit Court of Hamilton County.
    The Ohio Traction Company v. Jennings Miller.
    Decided, April 9, 1910.

      Negligence — Liability of a Traction Company — For Burns Received by a Passenger Through Collision with an Automobile — Evidence that is Insufficient to Sustain a Judgment.

    Testimony which, tends to show that an automobile, which had taken an unexpected course, came into collision at practically the same instant with two traction cars belonging to different companies and running on parallel tracks, and as a result of the collision a passenger on the car which was probably the last to strike the automobile was burned by the explosion of the gasoline tank on the automobile, is not sufficient to sustain a judgment in favor of said passenger for damages against the traction company on whose car he was riding.

      George H. Warrington, for plaintiff in error.

      Workum & Bowdle, for Jennings Miller.
    Gtfeen, P. J.; Smith, J., and Swing, J., concur.
    The plaintiff in the original action was a passenger on a Mill-creek Valley ear owned and operated by the defendant, the Ohio Traction Company, and was burned and otherwise injured by the explosion of gasoline on an automobile which collided with a Vine-Norwood ear running south on Vine street hill while the Millcreek Valley car was running north, and it is claimed in the petition that the defendant, knowing that the collision had occurred, aud that the automobile was on the north-bound track, negligently and willfully ran its car against and upon the automobile.
   The plaintiff’s testimony and that of two of his witnesses, ait least, support his theory of the case; but one of his witnesses, Miss Cobbam, is uncertain whether the automobile collided first with the Millcreek Valley car or with the Vine-Norwood car. The great weight of the testimony, however, shows that the collision, if any, between the automobile and the Millcreek Valley' ear was almost the same instant it struck the Vine-Norwood car. It is not unexpected nor unusual that accounts of an accident of this character given by eye-witnesses vary as to time, distance and other details, especially when observed under conditions of great excitement and confusion; and we conclude from all the evidence that the plaintiff is mistaken in his recollection and recital of the facts.

It is rightly claimed by counsel that the defendant company was- bound to exercise, for the protection of its passengers, the highest degree of care consistent with the practical operation of its road; but a careful reading of the testimony fails to disclose any violation of that duty. The testimony shows that there was room for the automobile to pass the Millcreek Valley car on the left-hand or the Vine-Norwood car on the right-hand side of the street, and that there was no other vehicle or obstruction in the way. There being no necessity for the driver of the automobile to pass around the left side and in front of the VineNorwood car, the motorman on the Millcreek Valley car had no reason to anticipate such attempt; but on the contrary might well assume that he would take one of the two ways open for such travel. After the collision with the Vine-Norwood ear, the explosion followed so soon and the flames from the burning gasoline so completely surrounded the motorman and his car that he was powerless to avoid the consequences. The instinct of self-preservation would tend to restrain the motorman from .doing that which he is charged in the petition with doing, and the manifest weight' of the testimony exonerates him. The judgment will be reversed for error in overruling the motion for a new trial upon the ground that the verdict is not sustained by sufficient evidence, and the cause remanded for a new trial.


text:
    PRIVILEGE OF A WITNESS INjFEAR. OF INCRIMINATING ’HIMSELF.
    Circuit Court of Cuyahoga County.
    In the Matter of the Application of Addie Sutter for a Writ of Habeas Corpus v. The State of Ohio.

    Decided, November 18, 1908.

      'Witness — Privilege of, Where in Fear Answer will Incriminate— Witness the Sole Judge — Failure to Act in Good Faith — Court Without Jurisdiction to Punish for Contempt — Application of Section 51$9.

    Inasmuch as -the witness, and not the court, is the judge as to whether the answer to a question would incriminate him, the court is without jurisdiction to commit him for contempt in refusing to answer; hut a witness who does not act in good faith in giving such a reason for refusing to answer may he subjected to the penalties for perjury.

      O. W. Broadwell, for applicant.

      W. E. Carey, Assistant Prosecuting Attorney, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
    We reach the conclusion now which was indicated by what was said from the bench this morning. In doing so, we are not unmindful of the fact that outside of the state of Ohio a different conclusion has been reached by the highest courts in a great many other jurisdictions, but we think in Ohio, in the case to which attention was called this morning, being that of Warner v. Lucas, 10 Ohio, 336, the exact question we have here is decided. This is upon the assumption that the allegations of the relator here are true, and that she refused to answer on the ground that it would incriminate her, and we understand it to be conceded that this is the ground upon which she refused to answer certain questions put to her, therefore making the ease very similar in character to the one above cited.

       Affirmed by the Supreme Court without report, In re Addie Sutter, 80 Ohio State, 711.

   It is said, however, that the question involved here was not necessarily involved in that case. It is true that case was a suit for damages, but it is further true that counsel in the case, Benjamin F. Wade and Rufus P. Ranney, for the plaintiffs in error, and E. Wade, Joshua Giddings and Hudge Chaffee, of counsel for the defendants in error, in briefs on both sides, discussed this question, and on this point, and called the attention of the court'to authorities, and then the court, in passing upon it, and discussing the case, said that two questions seemed to be involved in the present inquiry, the first being: “Was the decision of the magistrate that the witness ought to testify so conclusive as to render his silence inexcusable and thus to authorize a suit against him for falsely and wilfully refusing to give evidence ? ’ ’ But as to the second branch of the case, the court says:

“It seems to be supposed that if the witness is in the last resort, the exclusive judge of what will be the tendency of his answers to certain questions, that this not only protects him from giving testimony, but protects him also from a suit, the object of which is to show that his refusal was without foundation, that it was both wilful and false. It is supposed in other words, that the decision of the witness is without appeal, not merely on the trial where he is offered, but in any future proceeding which may be set on foot for the purpose of elucidating the truth. Such, however, does not appear to me to be a fair inference; and the protection which is thrown around the witness as such, is rather a reason why he should be subjected to an action if he has abused that privilege. ’ ’

And so here that would be true if she has abused the privilege extended to her.

The court, in discussing the question which we have here, uses this language:

“The rule laid down on the trial of Col. Burr, 1 Rob., 242, was the first attempt to give a clear and detailed exposition of the practice of the court as to the first branch of the inquiry. It is there declared, that ‘it is the province of the court to judge whether any direct answer to the question proposed, will furnish evidence against the witness.’ The rule had before been laid down in general terms, that the witness is himself to be the judge, and it is difficult to perceive how the court can be the judge, if the bearing of the testimony which is sought to be disclosed is a secret locked up in the bosom of the witness, and if to give a reason why he declined to testify, should have the effect of partially revealing that secret. The court can only be enabled to judge when it understands the situation of the witness. To understand that, may require a disclosure from the witness of his reasons for withholding his testimony, and yet in giving these reasons he may furnish a necessary link in the chain of testimony against himself. The rule laid down in the ease of Col. Burr, therefore, must not be considered as one of universal application, because there may be cases in which the court are absolutely unable to judge. But the rule was undoubtedly correct in that particular case; for the witness did voluntarily give his reasons for refusing to testify.”

Then follows a statement of the particular matter upon which the witness was asked to testify, and in this language, quoting from the Burr case: “It was held that he might testify; the court did decide that he must testify.”

Later on, still quoting from the Burr case, the court uses this language: “If the answer may disclose a. fact, which forms a necessary and essential link in the chain of any testimony, which would be sufficient to convict the witness of any crime, he is not bound to answer it.” “In such a case, the witness must himself judge what his answer will be, and if he say on oath, that he can not answer without accusing himself, he can not be compelled to answer.”

Our own Supreme Court, in the case of Warner v. Lucas, supra, after making this last quotation from the case of Col. Burr, says:

‘ ‘ That is, inasmuch as it is impossible for the court thoroughly to understand the situation of the witness or to comprehend the bearing which his testimony may have on his past actions and conduct, he must necessarily, in the last resort, be the judge himself what will be the effect of that testimony. ’ ’

In view of this holding by our own Supreme Court, we reach the conclusion here, that the judge before whom the relator refused to testify, and by whose orders she was committed to jail, was without authority to commit her, after her statement, that to give answers to the questions propounded would tend to criminate herself; that she, and not he, knowing what the answers to the questions must be, was the final judge of what the effect of such answers would be.

It must be remembered that this witness was under oath when she gave as a reason for not answering the questions, that she believed the answers, if given, would tend to criminate her, to furnish evidence, under which she might be convicted of a crime. If so, while under oath, her statement that she believed her answers would thus tend to criminate her, she told what was not true, she committed' per jury, and if she were to be indicted for perjury, for having so stated, and it could be shown that she was not acting in good faith when she made the statement, and that she had no reason to believe that her answers would tend to criminate her, there can he little doubt that she could be convicted of perjury; so that notwithstanding the witness is permitted to judge for himself at the time he refuses to answer questions, whether the answers would tend to criminate him, he is not relieved from the consequences of so stating, if the statements can be proved to be false.

In view of the provisions of Section 5729, Revised Statutes of Ohio, which reads as' follows,

“If it appear that the person alleged to be restrained of his liberty is in custody of an officer under process issued by the court or magistrate, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appear after the writ is allowed, the person shall not be discharged by reason of any informality or defect in the process, judgment or order,”

we could not release the prisoner here without first finding that the court ordering her commitment was without jurisdiction to make the order; that is, that it had no authority to order and determine the question of whether she was acting in good faith in thus refusing to answer. Holding as we do, however, that the witness and not the court, was the judge in this matter, we are of the opinion that the court was without jurisdiction. The result necessarily is that the prisoner must be discharged, and it is so ordered.


author: By'the Court.

text:
    CONSPIRACY AGAINST TRADE UNDER THE OHIO ANTI-TRUST LAW.
    Circuit Court of Franklin County.
    State of Ohio, ex rel U. G. Denman, Attorney-General, v. The National Cash Register Company.
    Decided, April 2, 1910.

      Quo Warranto* — Sufficiency of Petition Charging Usurpation and Misuse of Corporate Privileges — Conspiracy Against Trade — Identity of the Conspiracy not Lost by Abandoning the Old Company and Organizing a New One to Continue the Unlawful Trust — Quo Warranto — Pleading—Redundant and Irrelevant Matter — Sections 6160 and 6112.

    1. A motion will lie in an action of quo warranto to strike from the petition redundant and irrelevant matter which is prejudicial to the defendant.
    2. A petition in an action of quo warranto against a corporation is sufficient which charges the defendant, in general terms, with usurping and misusing corporate privileges and franchises, and with exercising powers and privileges inhibited by law, without specifying in detail the particulars in which the corporation is usurping, misusing and exercising such powers, privileges and franchises.
    3. Where the petition in an action of quo warranto against a corporation, after charging the defendant in general terms with usurping and misusing corporate powers and franchies, and; with exercising privileges and franchises inhibited by law, also proceeds to specify in detail some of the particulars of such usurpation and misuser, such specification of particulars, if. pertinent to the inquiry, are not prejudicial and will not be stricken out on motion.
    4. When an unlawful trust or conspiracy against trade nas been formed by • a corporation and its officers, stockholders and agents, the trust or conspiracy does not lose its identity by the action of the participants in dissolving or abandoning the corporation and transferring its property and business to a new corporation organized by them for the purpose of continuing the unlawful trust or conspiracy; and if the new company so organized continues the trust or conspiracy already formed, it and its participating officers, stockholders and agents must answer for the previous acts of the old company and its officers, stockholders and agents committed in furtherance of the common design.

      5. In an action of quo warranto charging a corporation with forming and being a party to a trust and conspiracy against trade in violation of the Ohio anti-trust act, the state may inquire as to all acts committed by any participant from the time it is alleged that the trust or conspiracy was formed.
    6. A corporation and its own officers, stockholders and agents, without the participation of others, may be guilty of forming a trust and conspiracy against trade in violation of the Ohio anti-trust act, and all, including the corporation, may be counted in making up the two or more necessary parties.

      U. G. Denman, Attorney-General, for plaintiff.

      Wilson & West, contra.
   By'the Court.

(Taggart, Donahue and Voorhees, JJ., sitting in place of the Franklin Circuit Judges.)

This case is submitted to the court upon a motion to strike out parts >of the petition and to make the petition definite and certain.

While we have given full consideration to all the questions raised by this motion, we do not think it necessary or advisable at this time to dismiss them in detail in this memorandum.

The plaintiff insists that no motion will lie to the petition either to strike redundant or irrelevant matter therefrom, or to make the petition definite and certain. Section 6760 of the Revised Statutes of Ohio designates a proceeding in quo warranto as a civil action, to be brought in the name of the state. Section 6772 provides what pleadings are to be filed after the petition, and these pleadings= are the same as are authorized by the civil code. It would, therefore, appear that this motion is properly filed in this case.

The motion seeks to strike from the petition certain allegations therein contained, as being redundant and irrelevant. It is claimed, in support of this motion, that if all these matters and •things sought to be stricken out were fully proven in the trial of the case, it would not entitle the state to a decree as prayed for in its petition. In the case of State v. Canal Co., 23 O. S., 121, the Supreme Court says:

‘ ‘ The office of an information in the nature of a quo warranto is not to tender an issue of fact, but simply to call upon the defendant to show its warrant or charter for exercising the privileges and franchises named.'”

It would appear from this, as well as from many other authorities in this and other states, that whenever the state calls upon a defendant to show by what authority it exercises corporate franchises, the allegations in the petition of the Attorney-General may be of the most general character. But the Attorney-General in the case at bar has seen fit not only to set-forth the powers granted by the state, and to aver that the defendant is proceeding to abuse and misuse these corporate franchises and privileges so granted, and is assuming and exercising rights, privileges- and franchises not granted by its charter and especially inhibited by law, but has álso specified in detail the particulars in which the state claims that this defendant has violated its corporate franchises, and the particulars in which it has misused the same and wherein it is assuming to exercise rights, privileges and franchises especially inhibited by law.

It is perhaps true that the petition would have been sufficient for the purposes of this case if it had closed with the last paragraph on page 5 of the printed copy of the petition, followed by an appropriate prayer for -the relief des-ired. Yet it can not be prejudicial to the defendant that the Attorney-General in this petition, or information, has set out in detail the matters and things complained of. So that the only question is as toi whether these matters and things so set out -are pertinent to the inquiry, and, if proven, whether they would amount to such] misuse and abuse of its franchises, or to an exercise of unlawful | powers, authorizing the courts to revoke its charter.

This petition sets forth in detail the organization of prior and successive corporations in this state and in New Jersey for the purpose of conducting the business and property to which this defendant has, in its turn, succeeded; and also charges these former corporations with being parties to the original' conspiracy which has been maintained through all the life of each of said corporations, and is still being maintained by the corporation, now defendant herein. The defendant asks that all of that be stricken out for the reason that it can not be responsible for the acts of other corporations, committed before it was in existence. This, perhaps, as an abstract proposition of law, is correct; but the charge here is that this present corporation is composed of the same stockholders, having the same officers and agents as each of the former corporations, and that it is, in fact, identical in body and mind with each of the original corporations, and that this identity has been maintained at all times since the original conspiracy, .as charged, was formed. It is true that each corporation is a separate legal entity, but, as stated by the Supreme Court of Ohio, in the first paragraph of the syllabus in the case of State, ex rel, v. Standard Oil Co., 49 O. S., 137, this “legal entity, apart from the natural persons who compose it, is a mere fiction, introduced for convenience in the transaction of its business .and of those who do business with it; but when urged to an intent and purpose not within its reason and policy, may be disregarded.”

It would be absurd to say that certain individuals could organize themselves into a body politic and corporate, which fictitious entity might become a party to a conspiracy to violate the laws of the land in the creation of a trust and monoply and in the destruction of competition, that when it had contributed by its efforts and its capital largely to this end, that these same individuals might abandon that corporation lest they and it be punished for the wrong and its charter revoked, organize a new and independent corporation to take its place in the conspiracy so that the business might go on uninterrupted and unchallenged by the state and this new corporation, <or new conspirator, joining the conspirators in the furtherance of the common design, and accepting all the property, benefits and advantages already acquired for it by the united efforts of the former corporation and its co-conspirators, and yet be exempt because it had no part in the original conspiracy.

The Supreme Court of Illinois, in the case of Cooks v. People, 231 Ill., page 9, has declared that “every person who enters a conspiracy already formed is deemed, in law, a party to all acts done by any of the other parties before or afterwards in furtherance of the common design; and the entry of such person into a conspiracy already formed does not make a new and distinct conspiracy. ’ ’

We are, therefore, of the opinion that the state may inquire, and the court may be advised, as to all acts done or committed by any party to this conspiracy from the time it is charged that the same was formed; and that the state can not be restricted to the few acts and things that may have happened since the joining of a new member to the conspiracy.

True, it is this new member whose conduct is to be inquired of, and it is hot to be punished for the acts and wrongs of others unless it has become a party to the wrongs complained of and has taken its place in the conspiracy charged, and is doing and is performing the things charged against it. But, in order that its conduct may be understood, and that the court may be fully advised in relation thereto, it is perfectly proper to show not only what is being done, but what has been done by others in the furtherance of this conspiracy from the moment of its inception down to the present time; and the motion in that respect will be overruled.

The next important question raised by the motion and particularly urged upon our attention is the repeated charge in this petition that this defendant corporation has combined and conspired with divers of its officers and directors, stockholders, agents and others to create and maintain a trust and monopoly; and we are asked to strike from this petition the averment that it has conspired with its officers, directors, stockholders and agents, for the reason that a corporation can not enter into a conspiracy with those officers and agents in charge of its affairs.

If this prosecution is to be measured by the Valentine act, then we are of the opinion that these officers and agents may be counted as one of the necessary parties to a conspiracy, and the. corporation may be counted as the other. In the case of Standard Oil Co. v. State, 117 Tenn., 618, the Supreme Court of that state declared that a corporation and its officer or agent, engaging in a criminal or unlawful conspiracy, must both be held to be parties to it, and must both be considered and counted in computing the necessary number of two or more to constitute a conspiracy. We think this is the correct doctrine. Any other rule would make a conviction impossible in most of these cases, for it would only be necessary for the corporation to employ as its agent any of the individuals, firms, or other corporations to carry out the purposes and intention of the conspiracy, and that employment would then eliminate such agents from the unlawful compact, and insure immunity from all prosecutions. So that it must be held to be the law that whenever any individual, whether he be an officer or an agent of a corporation or not, joins with that corporation in an unlawful enterprise, he becomes one of the parties to that enterprise, and may be counted as such in determining whether a conspiracy existed or'not. For that reason, the motion in that respect must be overruled.

It is also insisted in support of this motion that there are a great many redundant statements and much irrelevant matter pleaded. We are inclined to the belief that there is some redundancy here that ought to have been avoided, but it would be difficult to separate now and would create more confusion than if it were permitted to remain.

The only object in striking out redundant matter is to simplify the pleadings and to make plain the issues in the case. We think no good would be accomplished here in endeavoring to strike out any statement that appears to be redundant. The petition, as it now stands, is not obscure in any particular, and does not encumber the record to any grievous extent, and we, therefore, overrule the motion in that particular.

As we have already said, this petition would perhaps be sufficient without the averment of the specific wrongs complained of, but we do not think that that is prejudicial to the defendant, or that the same are immaterial or irrelevant, or in any way embarrasses it in making its defense. Therefore, that part of the motion is overruled.

It is also asked in this motion to compel the plaintiff to make the petition definite and certain. We have already said that it is now more than can be required in that behalf. It is definite and certain, and avers and specifies, in detail, the acts and things complained of; the manner in which said defendant is charged with misusing its corporate franchises and privileges; its assumptions of powers and privileges not granted, and the exercises of powers and privileges inhibited by law.

There are other questions raised by this motion which we do not think necessary to discuss at this time. It is sufficient to' say that the motion as a whole is overruled, and the exceptions of the defendant are noted.

The defendant may have leave to further plead in thirty days from the date of the entry of the overruling of this motion.


text:
    LIABILITY FOR. PAYMENT OF CHECKS OF A SUB-CONTRACTOR..
    Circuit Court of Hamilton County.
    The Collier Bridge Co. v. Charles Lippert.
    Decided, March, 1910.

      Sub-Contractors — Promise of Principal Contractor to Take up the Checks 0f — Nature of Such a Promise — Not Within the Statute of Frauds.

    1. A promise by a principal contractor to pay the time checks issued to the laborers’employed by a sub-contractor must be interpreted ’ only as a .promise to pay such checks in the event there is something due the sub-contractor.
    2. Where, in such a case, there is enough due the sub-contractor to meet the checks presented, the promise to take them up is not a promise to answer for the debt of another, but to pay to a third party a debt due from the principal contractor to the sub-contractor, and is therefore not within the statute of frauds.

      Stephens, Lincoln & Stephens, for plaintiff in error.

      Renner & Renner and Eugene Heim, contra.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
    There is nothing on’the face of the certificates signed “W. S. Hood, Supt. ’ ’ to indicate that Hood .represented the bridge company as superintendent or manager, and the course of dealing between the plaintiff, Lippert, and the defendant bridge company indicates merely that the defendant would continue to pay the time checks issued to the laborers only so long as there was money due to Hood as sub-contractor.
   This course of dealing is also corroborative of the testimony of the president of the company that he told the plaintiff when the time checks were presented, “If we owed Mr. Hood on the final' estimate we would be glad to pay it; we would not assume them. ’ ’

Even if, as the plaintiff testifies, Collier told him that ‘ ‘ Those will be paid when they are due, the 25th of September,” it was necessarily implied, in the absence of other statements or circumstances, that they would be paid only in the event the amount was due to Hood as sub-contractor. Unless upon final estimate it was found that the money was due to Hood there could be no benefit to the company nor detriment to the plaintiff as a result of the promise to pay. The plaintiff, at the time the promise was made, said nothing and did nothing of benefit to the company or detrimental to himself. The final estimate showed that Hood’s account was overdrawn about $1,400, and the company was therefore justified in refusing payment."

The charge of the court on the statute of frauds, quoted in the brief of counsel for plaintiff in error, is qualified by the next clause as follows, “If you find therefore the leading object of the Collier Bridge Co. was to avoid a liability on its own part, then the promise to pay need not have been in writing,” which fairly states the rule announced in the case of Crawford v. Edison, 45 O. S., 239. If the Collier Bridge Co. at the time was indebted to Hood, the sub-contractor, in an amount sufficient to pay the time checks presented by the plaintiff the promise, was not to answer for the debt of another, but to pay the debt of the company, upon the order of the creditor to a third party, and therefore not within the statute of frauds.

The judgment must be reversed for error in overruling the motion for a new trial upon the ground that the verdict is not sustained by sufficient evidence, and the cause is remanded for a new trial.


author: Donnelly, J.:

text:
    AS TO TITLE OF RANDOLPH SLAVES IN MERCER COUNTY LANDS.
    Circuit Court of Mercer County.
    Joseph Moton and York Ryal, for Themselves and Others, v. Bernard Dewell et al, and Joseph Moton and York Ryal, for Themselves and Others, v. Gerard Kessens.
    Decided, May, 1910.

      Trust — Created by the Will of John Randolph — Involving Title to Mercer County Lands — Concealment of the Trust from the Beneficiaries —statute of Limitations — Laches—Failure to Bring Repudiation of the Trust Home to the Cestui que Trust — Character of the Title in the Beneficiaries — Parties—Presumption as to the Law of Another State.

    1. In an action against purchasers of real estate from an executor and successive grantees, wherein fraud is charged in the sale and alienation of said lands which were acquired by the executor with a trust fund, the fact that the executor is not represented in the action by a successor is not a fatal defect, where it appears from the facts alleged in the petition and admitted by demurrer the purchasers became quasi trustees and successors to the trust.
    2. The bequest by John Randolph, of Virginia, for the purchase of lands • in a free state, upon which his emancipated slaves were to be settled, was an absolute devise, and is capable of enforcement by a suit in equity, unless the right so to do has been lost through laches or the running of the statute of limitations.
    3. But neither laches nor the bar of the statute runs against ignorant slaves emerging into a condition of freedom, with no knowledge of property rights or such an instrument as a will, and whose rights are admitted by demurrer to have been fraudulently concealed from them by the executor of the Randolph will; but were this not true the rights of those slaves and their descendants would still be preserved, inasmuch as the bar of the statute in force in Ohio at that time was not applied as between a trustee and his cestui que trust until after knowledge of a' denial or repudiation of the trust had been brought home to the cestui que trust.

    4. The interest conferred upon those slaves was in fee simple, and successive purchasers having knowledge of the trust are bound by it.

      J. D. Johnson and W. E. Henderson, for plaintiffs.

      John W. Loree, P. E. Kinney and John G. Romen, contra.

      Allread, J.; Hurin, J., and Donnelly, J., concur.
    The plaintiffs bring these actions on behalf of themselves and the survivors and other descendants of ex-slaves of the late John Randolph, of Roanoke, Virginia, who died testate May 24th, 1833, and whose will was on December 7th, 1837, admitted to probate in the general court of Virginia at the capital.
   By the provisions of the will John Randolph gave and bequeathed to all his slaves their freedom, and in addition gave to William Leigh, as executor of his estate, a sum of money not exceeding eight thousand dollars, or so much thereof as was necessary, to transport and settle said slaves in some other state or territory in the United States, giving'to all above the age of forty not less than ten acres of land. By codicil, three thousand pounds sterling, or about fifteen thousand dollars, was bequeathed to said executor as a fund' for carrying into execution the will respecting said slaves.

The executor named duly qualified and entered upon the trust, raised the fund provided for this purpose, and on May 19th, 1846, from the fund so raised, purchased lands in Mercer county, Ohio, taking the title in fee simple in his own name as executor of said will.

Proceedings had been commenced in the general court of the state of Virginia at the capital for the purpose of releasing said slaves from the bondage of slavery, resulting on May 4th, 1846, in an order for their release, and the granting of' passports to another state. Shortly thereafter the slaves were transported by the executor from their domicile in Virginia to the southern part of the state of Ohio, and from forty to sixty miles from the lands so purchased and in a different county.

The executor on October 26th, 1846, executed a power of attorney to Joseph Plunkett to sell and convey the lands in Mercer county, and the same were sold and conveyed by said attorney in fact, one tract in 1849, and the other in 1852. The deed to the executor, the power of attorney, and the subsequent deeds of the attorney in fact, were each recorded shortly after execution in the recorder’s office in Mercer county. Re-sale of the lands by the executor was made without any order or authority of any court, and without the authority of the will.

It is averred in the third amended petition, upon which the case now stands, that the executor did not settle said slaves or any of them upon the lands so purchased, nor did he give said slaves any land, money or property in lieu thereof. The amended petition contains charges of fraud against the .executor in the re-sale of the lands, extending to the suppression of all knowledge from the liberated slaves and their descendants and the concealment of their rights; that the purchasers from the executor and their successive grantees down to the present owners took the property with full knowledge of the trust and of the fraud, and also aided in the concealment from the slaves and their descendants of all knowledge of their rights. It is also averred that the ex-slaves were illiterate, ignorant, could neither read nor write, and that neither they nor their descendants had any knowledge of the will, its terms ánd conditions, the purchase of lands for their benefit, the acts, proceedings, etc., of the executor, or the fraud; and no means of knowing, and could not and did not discover the facts or their rights until about the time suit was brought.

A demurrer was presented and sustained by the court of common pleas to the third amended petition, containing the facts above stated, and final judgment rendered against the plaintiffs, who, by a petition in error, here seek to have the judgment reversed.

Various reasons are advanced in support of the demurrer. Counsel, both in oral and written argument, have shown extraordinary research and ability pro and con.

It is contended that a successor to William Leigh, as executor, should be appointed in the courts of Virginia and made party here. We think that the absence of a successor to William Leigh is not a fatal defect, for under the facts stated and admitted by the demurrer the purchasers became quasi trustees and successors, so far as the real estate in Mercer county is concerned, to the executor.

So, also, we are of.the opinion that one or more of the ex-slaves or their descendants may bring and prosecute the action for themselves and the others similarly interested. Joseph Mo-ton is averred to be a descendant of slave parents over forty, and York Ryal, a descendant of a slave mother under forty years at the death of Randolph. Each class of slaves referred to in the provisions of the will is therefore represented.

When the executor, after having invested the funds, failed to further execute the trust by settling the slaves on the land, and conveyed it to a purchaser who took with full knowledge, the ex-slaves had the right, in due time, to appeal to a court of equity in the jurisdiction of the land to declare and enforce the trust created by the will and impressed upon the lands by investment of the funds specially raised and set apart. And inasmuch as the interests could only be assigned in severalty by the act of settling the slaves and making the allotments, the right to bring the suit is joint.

While broad discretion was confided by the terms of the will in the executor as to the manner of carrying out the benevolent object and purpose, yet the direction to purchase lands in anther state or territory and to transport and settle the slaves, giving the elder class at least ten acres, and to employ so much of the funds provided as was necessary, was imperative. The right to give or withhold as to the main objects did not rest in the discretion of the executor, but was conferred by absolute devise. Such bequest is therefore capable of enforcement by a suit in equity, unless the right thereto is lost by laches or limitation.

The plaintiffs rely upon their want of knowledge and the fraudulent concealment of the executor to relieve the bar of the statute of limitations. On -the other hand, the defendants contend that, notwithstanding the averments of the petition that the slaves and their descendants had no knowledge and could not have discovered the facts upon which their right is founded, yet the court will be forced to conclude from the general situation and common knowledge of the race and class of persons involved that they did know or could by reasonable diligence have discovered in due time to bar the action, the facts necessary to their cause. This inference, as counsel contend, is based upon the intimate knowledge and acquaintance which must be assumed of the slaves with John Randolph and his benevolent purpose during life; upon the report and reputation following Ms death and publication of his will during the thirteen years of domicile on the old plantation in Charlotte county, Virginia, of' the pendency of the proceedings to probate the will, the release of the slaves from bondage with all the attendant agitation and discussion, upon their manumission, the dissolution of bondage, passports and transportation under provision of the executor into a free state and almost within sight of the land provided for, where it may be assumed they settled, and where they and their descendants have lived for sixty years.

In consideration of this contention it may be conceded that, if the only rational deduction from the situation and admitted facts surrounding the parties is inconsistent with the special averment of want of notice and diligence as to discovery, the látter may be disregarded; but if not wholly inconsistent, the averments must be reconciled upon the demurrer. It can hardly be' doubted that the Randolph slaves, although ignorant and unlettered, spread the news of their emancipation and repeated and handed down to posterity as tradition the oft-told story of their journey to the land of freedom, but resort to common knowledge might reasonably lead to the conclusion that to the liberated slaves their freedom was the chief thought — the priceless boon — about which clustered their fondest hope and highest aspiration,' and afforded undoubtedly the chief topic of discussion. But it does not clearly and necessarily follow that, emerging from the condition of slavery and with little, if any, knowledge of property or property rights, ignorant and unable to read, the slaves knew, discussed or imparted to their descendants any knowledge of their property rights, although such rights are conferred by the same instrument which granted their freedom. It is specially urged that the proceedings of the general court of Virginia for their emancipation and the judgment and passports resulting charged the slaves with knowledge off the provisions of the will and of their rights. It does not, however, either expressly nor as a necessary inference, appear that the slaves instituted the suit or were parties.

A slave might in some of the slave states have maintained a suit against the person claiming his bondage. James (colored) v. Walker, 18 B. Mon. (Ky.), 605.

A more appropriate suit would have been on behalf of the executor to confirm the manumission provided in the will, and as the proceedings here were in the court probating the will and administering the estate, and not at the domicile of both the slaves and the executor, the inference in support of the theory of the executor having brought the suit is strengthened.

The inference of knowledge of property rights by the ignorant slaves from the judgment of the court dissolving the bondage, their passports and journey into the free state, is by no means conclusive so as to overcome other positive -averments admitted by the demurrer.

It is still further contended that the amended petition does not allege that the descendants of the slaves are ignorant or illiterate, and that, therefore, their knowledge of property rights from lapse of time and proximity of residence must be conclusively presumed. But it will be noted that about fifty of the John Randolph slaves were still living when the suit began, and as to descendants of those deceased, it- does not appear that they were in such contact with the stirring events of their ancestors’ emancipation and exodus as to lead to a necessary inference of 'knowledge of their property rights. The only means of knowledge necessarily inferred from the state of facts contained in the petition lay with their ancestors, who can not be held to have transmitted greater information than they possessed. The petition does not inform us- of the date of the death of any of the ancestors, and we can not, therefore, from the petition determine as to the beginning of the tolling of the statute of limitations as to any of the descendants.

The foundation of the present cause of action arises from the investment of the trust funds in the Mercer county lands, and specific knowledge of that fact is not necessarily deduced from any situation or set of circumstances shown in the petition, ncr from any notice charged by law of the probation and contents of the Randolph will in the courts of Virginia, in face of a distinct averment of the petition of want of knowledge or of opportunity for knowledge on the part of the ex-slaves and their descendants.

It is contended by counsel for the plaintiffs that the trust created by the will of John Randolph and transferred to the successive grantees of the real estate is a continuing and subsisting trust, and thereby excepted from the present statute' of limitations, but that is immaterial for the reason that the statute of limitations in force at the time the cause of action arose controls, and that under the prevailing practice at that time legal limitations were not applied as between trustee and cestui que trust until after there had been an open denial or repudiation of the trust brought home to the cestui que trust. Paschall v. Hinderer, 28 O. S., 568; Ham v. Kunzi, 56 O. S., 531.

It is also contended in support of the demurrer that the executor having bought the land and taken the title in his own name had an absolute right to convey and restore thereby the funds to its original form, and that the rule requiring specific authority of the court or will does not apply. The effect of such conveyance as to an innocent purchaser need not be determined, for here the amended petition charges the successive purchasers with knowledge of the trust, and they are, therefore, bound by the trust.

It is argued that there is no sufficient showing or statement of facts as to fraud, but the averments showing breach of trust, intent to defraud, and fraudulent concealment are sufficiently • broad and specific to pass the test of a general demurrer.

It is asserted that the provisions of the Randolph will were personal to the slaves and that the right did not descend. The act of March 3, 1834 (1 Curwen, 145), first brought into the statutes the rule of construction of wills holding the vesting of the estate in fee simple in the absence of words of succession. But independent of the statute, a devise was so construed even in the absence of words of succession. Nile v. Gray, 12 O. S., 320; Piatt v. Cruton, 37 O. S., 355; Flickinger v. Saum, 40 O. S., 600.

This is the law of Ohio and is presumed to be the law of Virginia in the absence of a showing otherwise, and therefore controls, whether the construction of the will for the purposes of this case be under the laws of either Ohio or Virginia.

Whether the term “settle” employed in the will is to be construed in harmony with plantation customs in slavery days, and applied as a sort of tenancy by sufferance, or in the more enlarged acceptation of the free states in which the investment was directed, it is not necessary to decide ait this stage. The laws and customs of the state of Virginia, if competent at all to be en-grafted upon the construction of the will, must be specifically pleaded and proven.

The investment of the funds in the real estate described and the -taking of the title in the name of the executor impressed thereon a trust for the settlement of the slaves, and under the facts stated in the petition, the interest so conferred upon the slaves -is one in fee simple.

The third amended petition, therefore, stating a good cause of action as .against a demurrer, the judgment of the common pleas court should be reversed and the cause remanded with instructions to overrule the demurrer, and for further proceedings.

Donnelly, J.:

I agree with the majority of the court that the third amended petition is good as against a demurrer, but do not fully agree with the reasons given by the majority of the court. . '


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    AS TO REGULATION OF THE USE OF GASOLINE.
    Circuit Court of Hamilton County.
    Clara Mildner and Benedict Keeti v. City of Cincinnati.
    Decided, March, 1910.

      Municipal Corporations — Dry Cleaning — Regulation of, Vy Ordinance— Unjust Discrimination — Section 1586-100.

    If the business of dry cleaning by the use of gasoline or other light petroleums is carried on in such a way as to become a nuisance, or is so dangerous, offensive or unwholesome as to cause injury or annoyance, it may be regulated; but an ordinance which forbids dry cleaning establishments only to use or store gasoline within the municipal limits is unreasonable because of unjust discrimination against a certain trade or business.

      David Davis, for plaintiff in error.

      Chas. E. Urban, contra.
    Giffen, P. J.; Smith, J., and Swing, J., concur.
    The plaintiffs in error were convicted and sentenced to pay a fine of fifty dollars each under an ordinance “To regulate the use of gasoline, naptha, benzole and other light petroleums, and coal tar productions in the dry-cleaning business in the city of Cincinnati, Ohio.”
   While the provisions of the ordinance are apparently intended to regulate the use of gasoline in the dry-cleaning business, they in effect prohibit such business within the city limits; but even this may be done, if the business of dry-cleaning is a nuisance or so dangerous, offensive, or unwholesome as to cause injury or annoyance. 1536-100, Revised Statutes; White v. Kent, 11 O. S., 550; Hays v. Village of St. Marys, 5 O. S., 197.

The manifest purpose of the council in passing the ordinance was to prevent injury to life and property from the use of gasoline or other inflammable material. There is no other element of danger in the business of dry-cleaning; and yet it is notorious that this same element of danger is present in other trades and businesses which this ordinance does not pretend to regulate.

Gasoline stored and used for the purpose of cleaning articles made of iron or steel is just as dangerous as the same quantity of gasoline stored and used for the purpose of cleaning cloth or clothing. At least there is nothing in the record showing any distinction. The ordinance is unreasonable, not because gasoline is harmless, nor because of any want of power in council to regulate its use, but because it unjustly discriminates against a certain trade or business.

For this reason the ordinance is void and the judgment of the court of common pleas will be reversed and the cause remanded to that court with instructions to reverse the judgment of the .police court of Cincinnati.


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    EXEMPTION FROM SERVICE OF SUMMONS.
    Circuit Court of Lucas County.
    Minnie Walsh v. Daniel M. Mooney.
    Decided, November 20, 1909.

      Service of Summons — Privilege of Senators and Representatives — Construction of the Statutory Provision Relieving Them from “Answering” — Sections 5031 and 5457, 5458 and .5459.
    A member of the General Assembly is exempt from service of summons in a county other than that of his residence; during the sessions of the assembly and the time usually occupied in traveling to and from such sessions, where the cause of action accrued ten days before the opening of the session.

      Hamilton & Kirby, for plaintiff in error.
    Kindade, J.; Parker, J., and Wildman, J., concur.
    This is an action for damages for breach of promise of marriage brought in the court of common pleas of this county by Minnie Walsh, who is a resident of Lucas county, against Daniel M. Mooney, who is a resident of Auglaize county, and service of summons had in this county. The defendant in that case appeared in court and moved the court to quash the summons that had been served upon him in this county upon the ground that he was a non-resident of the county, being a resident of Auglaize county; that he was then a member of the Senate of Ohio, that the Senate was then in session, that he was here on senatorial business only at the time he was served, and the cause of action in the case accrued more than ten days prior to the first day of the session of the Senate; and the court of common pleas, upon consideration of that motion, quashed the service, and this is a proceeding in error to reverse that action of the court of common pleas.
   Our attention is directed to Section 12, Article II, of the Constitution, to Section 5031, and to Sections 5457, 5458 and 5459 of the Revised Statutes. It is said in behalf of the defendant in error here that the action of the court of common pleas was fully justified by Section 5031 of the Revised Statutes, which reads as follows:

“A member of the Senate or House of Representatives, or any officer of. either branch of the General Assembly, shall be privileged from answering to any suit which may be instituted against him in a county other than the one in which he resides, upon a cause of action which accrued ten days before the first day of the session of the General Assembly of which he is an officer or member; and all proceedings in actions to which any such person is a party shall be stayed during such session, and during the time necessarily employed in going thereto and returning therefrom.”

Counsel for the plaintiff in error contend that this action amounts to more than privileging the member of the House or of the Senate from filing an answer in the case in which he is thus sued; that it does not relieve him from being served with summons and required at a later time to answer, but only suspends the time within which he must answer, and our attention in support of this proposition is directed to the sections I have mentioned, 5457, and incidentally 5458 and particularly 5459.

Section 5457 is the section of the statute that enumerates the persons who are exempt from arrest. It has seven subdivisions and the first mentions the members, clerks, sergeant-at-arms, door-keepers and messengers of the Senate and the ITouse during the session of the Senate or House and during the time they travel either way in attending the sessions allowing twenty-five miles per day, etc. The second subdivision mentions electors attending and returning from election, and the third judges of court while attending court, and the- time necessarily employed in going and returning. The fourth, officers of the court, including attorneys, counselors at law, clerks, sheriffs, coroners, constables and criers, and all suitors and jurors and witnesses. The fifth, females and soldiers of the Revolutionary war; sixth, Israelites, and persons observing the last day of the week, etc.; seventh, members of the militia during the time they are on duty and going and returning therefrom. Section 5458 prescribes the places in which arrest shall not be made — the Senate and the House and a court in session. Section 5459 is the general section that prescribes that none of the foregoing privileges shall apply in certain instances, and says:

“Nothing in this subdivision contained shall be construed to extend to cases of treason, felony, or breach of the peace, or to privilege any persons herein specified from being served at any time with a summons or notice to appear; and all arrests, not contrary to the provisions herein contained, made in any place, or on any river or water-course within or bounding upon this state, shall be deemed lawful.”

The particular part of the section to which our attention is directed is, “or to privilege any persons herein specified from being served at any time with a summons or notice to appear, ’ ’ and it is said that unless effect be given to this language and the service in this ease sustained by reason of this language in Section 5459, then the language must be held to have no effect in the statute at all. Our attention has been called to but one ease in Ohio which supports the action of the court of common pleas, and counsel on behalf of the plaintiff in error here contend that it is not a controlling authority and really of no weight in consideration of the question presented here. This section of the statute, 5457, is the only section which provides for this privilege from arrest, and it might .appear upon a hasty reading of the section that it refers to nothing but arrest; but an examination of the question will show that that is not the case.

This question was before the Supreme Court of Ohio in the case of Andrews v. Lembeck, in the 46 O. S., p. 38, in which a man had been brought from Virginia on a requisition from the Governor of Ohio and was in Cincinnati, and before he left there, after being released upon bail, a summons' and order of arrest was issued and served upon him. He moved that the summons and order of arrest both be quashed, and this same contention was made, that this language here did not exempt the accused from service of summons at any time he might be required to appear. But the court held otherwise, and set aside both the order of arrest and the summons, and remarked in doing so that it was not necessary to refer to the statute in order to find authority to do it, but because the man being a suitor and having been brought within the jurisdiction of the court to attend to a litigation in court, that it had been the law from time immemorial that he was exempt — not only exempt while returning to his home, but that he was likewise exempt from the service of summons — and was entitled to have the motion granted and the summons that had been served upon him quashed.

The same ruling will be found in the 77 O. S., p. 81, in the case of Barber v. Knowles, citing the 46 O. S. with approval and following it. There was no order of arrest in that case. A lawyer was journeying to Cincinnati to try a case, and stopped at Dayton and was there served with summons. If I remember correctly, the point was not made that they had a right to serve him if he was going direct to Cincinnati, but they claimed he had tarried longer than he should, and therefore the authority of the 46 O. S. did not apply, and they had a right to serve the summons upon him; but the court held that was not the case and that the summons should be quashed. It will be observed that this Section 5459 follows all the provisions exempting parties from arrest, one of the seven subdivisions of Section 5457; and it would look, upon first reading, as though while those parties thus enumerated are all exempt from arrest, none of them would in effect be exempt from the service of summons, and no very good reason appears why a suitor or witness or a lawyer or any of the other parties enumerated in these seven subdivisions, with the exception of two, should be exempt from arrest and be exempt from summons if the members of the Legislature should not. They are all put on the same ground, and the first persons enumerated as being exempt are the persons mentioned as members of the Legislature. They are exempt from arrest, and it would seem as if the Legislature had made ample provision in those sections, which have long been upon the statute book, to prevent the arrest or the summoning of a legislator while attending the session or while going or returning from it. But in addition to that we find this Section 5301 specifically provides that they shall be exempt during the session from answering to any cause of action which accrued more than ten days prior to the opening of the session.

It seems to us that the sections of the statute which I have mentioned, and taken in connection with the two eases which I have cited, clearly indicate that the Legislature did not intend to provide that a member of the Senate might be relieved from the duty of answering some petition filed against him in a county other than his residence until the session had closed and he had returned home, and then he must answer; but the section we think, clearly indicates that during the session, or during the period necessary to travel to and return from the session, and especially when the matter in question is a cause of action which arose more than ten days before the beginning of the session as mentioned in Section 5031, the privilege is that he will not be summoned at all, and that no legal summons can be served upon him excepting of course in the county of his residence, and therefore we conclude that the action of the court of common pleas must be affirmed in quashing the service.


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    DEFECTIVE LIEN FOR. MACHINERY.
    Circuit Court of Franklin County.
    Frank J. Macklin, Receiver, v. The Miller Improved Gas Engine Company.
    Decided, March, 1910.

      Mechanics’ Liens — Omission of Date from Statement Filed with the Recorder — Deficiency Gan Not he Supplied hy Parol — Paramount Importance of the Notice Feature — Equitable Rights.

    The legality of a mechanic’s lien should affirmatively appear on the face of the statement filed with the recorder; and where the lien is rendered invalid by failure to state that the work was completed within four months of the filing of the affidavit, the party holding the claim will not be permitted to supply the deficiency by parol and must submit to the loss of his lien.

      J. W. Mooney, for plaintiff in error.
    Dustin, J.; Sullivan, J., concurs; Allread, J., dissents.
    We regret that we are unable to take the same view of this case as the common pleas court. It seems a great hardship that the engine company should lose the $2,500 for a failure to state the date of the labor involved in installing the engine in question which completed the contract in “furnishing” the same.
   We find nothing in the statement of account, nor in the affidavit, nor in the contract, which shows or even hints that the contract may have been completed within four months of the time of filing the affidavit upon which the claim for a lien is based.

On the contrary the affidavit very explicitly states that the ‘‘annexed is a true and correct itemized statement of the amount and values of the labor performed and' materials, furnished. * * * at the times therein mentioned,” etc.

The statement referred to shows upon its face that the materials and labor were furnished more than four months before the filing of the affidavit. It is, therefore, prima facie invalid.

Under such circumstances should a party be allowed, by parol, to show that the'statement is incomplete, and to supply the deficiency ?

In our view such a holding would destroy the whole purpose of the statute so far as it may serve as a notice to others. If a lien, invalid on its face, may be made valid by oral testimony, the statute is a delusion and a snare to subsequent purchasers and lienholders. It would hamper commercial transactions with the owner and redound to his ultimate injury, for he would not be able to obtain financial assistance, except by settlement of the lien, which may in fact, as well as upon its face, be utterly invalid. It gives the pretended as well as the real lienholder an opportunity to “hold up” all parties concerned. It would also afford an opportunity for collusion between lienholder and owner to defraud a confiding purchaser or mortgagee. In short, the door would be open to such fraud and injustice that we can not believe that the Legislature contemplated that any such construction should be placed upon the law. As to subsequent purchasers and lienholders, the party filing an affidavit should be estopped to deny the dates or amounts therein set forth.

It may be that a creditor would have the right in equity to correct his affidavit. But this is not such a proceeding. The machine company relies upon the affidavit as it stands, and in its answer and cross-petition sets forth no errors or omissions, and seeks no corrections or additions.

The facts appeal strongly to us in behalf of the machine company. It seems to have a meritorious claim. But, to hold that it has preserved its rights by the affidavit in question, would we think be a vicious precedent, and entirely upset the notice feature of the law. We have sought in vain for some fact or phrase that would give us an opportunity to distinguish in claimant’s favor. But it must suffer for the general good of the law. The requirements placed upon it were not onerous. With the facts definitely known, it was very easy to state them. A line or two was all that was necessary to preserve the lien. Omitting the same it must take the consequences.

It is argued that the statute does not require the last date of labor or materials furnished to be given, and authorities are cited in other states holding, under similar statutes, that the date may be supplied upon the trial. We have examined the citations, and find that in every instance the affidavit itself sets forth -the fact that the labor and materials had been supplied within the statutory time for a lien. Prima facie, therefore, the lien was good, and the court held under the circumstances that the indefinite might be made certain.

In the ease at bar, however, there is no basis for a correction; for the lien is wholly invalid upon its face; and even under a “liberal construction” we do not see how we can make it good.

We think with the court, in Chappelle v. Smith, 40 Neb., 579, that the legality of the lien should affirmatively appear in the statement; the contract, or the affidavit as filed. We cite also, Behrer v. Zeigler, 3 Watts & Serg., 258; Armstrong v. Chisholm, 91 N. Y. Supp., 693. And the reasoning of the court appeals to us in Shackleford v. Beck, 80 Va., 573; where many cases are reviewed.

Reversed and remanded.


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    RECOVERY FOR. DEATH IN COLLISION BETWEEN CAR. AND BUGGY.
    Circuit Court of Hamilton County.
    The Cincinnati Traction Company v. Josephine Dorenkemper, Administratrix.
    Decided, April 23, 1910.

      Negligence — Pleading as to — Finding of the Jury Where the Question Was Glose — Motion for Judgment on the Pleadings Too Late, When —Charge of Court — Application of the Rules Laid Down in the Snell and McCormick Cases.

    1. Where the question, of contributory negligence was close and was properly presented to the jury, the finding will not be disturbed by a reviewing court.
    2. Failure to file a reply to an allegation of contributory negligence pleaded in the answer does not entitle the defendant to a judgment on the pleadings, when his demand therefor was not made until after both parties had submitted their evidence, and the case had been tried as though the allegation of new matter in the answer had been denied.
    3. A charge of court which required the jury to find the plaintiff was free from negligence before returning a verdict in his favor can not be tested by the rule laid down in the third paragraph of the syllabus of the case of Railway v. McCormick, 69 O. S., 45.

      Joseph Wilby, for plaintiff in error.

      Horstman & Horstman, contra.
    At tbe first trial of this case below recovery was had of a verdict of $8,000 as damages for the death of the intestate, which the trial court reduced to $6,000. That judgmént was reversed by the circuit court, when a second trial was had resulting in a verdict of $9,000.
    G-ifeen, P. J.; Smith, J., and Swing, J., concur.
   The plaintiff’s intestate, Henry Dorenkemper, attempted to cross the street railway of the defendant traction company at a point in Harrison avenue, about 120 feet east of the intersection of Westwood avenue with Harrison avenue (Cincinnati), the tracks on the former connecting with the tracks on the latter avenue at an angle of twenty-three degrees and over. He was driving a horse and buggy on the south side of Harrison avenue, and could see an approaching car in Westwood avenue only a short distance beyond the intersection. He waited for a car coming eastwardly in Harrison avenue to pass him, then attempted to cross behind the ear, and while on the track and after the horse had cleared it the buggy was struck by another car running in the same direction from Westwood avenue. In order to change the trolleys from the wires in Westwood avenue to those in Harrison avenue, the power was turned on and the car given sufficient speed to keep it running while the transfer was made, the lights in the car being in the meantime extinguished. The night was dark, and there is testimony tending to show that the electric street lamp was burning dimly, if at all. There is testimony also tending to show that the Harrison avenue car and the car from Westwood avenue, known as the John street car, were running at a distance of about five hundred feet apart. If the distance between them was only three hundred feet, it would not be negligence on the part of the deceased, if he attempted to cross over immediately after the Harrison avenue ear passed, even though he could and did see the John street car approaching, unless at a high and reckless rate of speed.

In the absence of circumstances warning him of the danger, he had a right to assume that the car would be run at a reasonable rate • of speed and kept under control by the mótorman. We are of the opinion, however, that he could not and did not see the car, when he started over, although he must have seen it when well onto the track and too late to retreat. It may be conceded that the question of contributory negligence presented by the record is a close one, but we think it was properly submitted to the jury, and their finding should not be disturbed.

It is claimed .further that contributory negligence as pleaded in the answer was admitted, as no reply was filed, although the plaintiff, after the case had been submitted to the jury, was given an opportunity to file one.

The cause was tried without objection as though the allegation of new matter in the answer had been denied, and a demand for judgment on the pleadings after each party has introduced his evidence is too late. Lovell v. Wentworth, 39 O. S., 614.

The following portion of the general charge to the jury is objected to:

‘ ‘ I will state to you further as to one of the elements of negligence claimed by the defendant, that if you should find from the evidence that the motorman of the defendant company could, in the exercise of ordinary care on his part, such care as an ordinarily prudent person, situated as he was, would exercise, could and should have seen Dorenkemper on the track before him in time to have stopped his car and avoid the accident, and by not seeing, in the exercise of ordinary care, what he could and should have seen, caused the accident, then your verdict would be for the plaintiff, provided Dorenkemper himself was not guilty of negligence on his part.”

This charge is within the rule stated in the case of The Cincinnati Street Railway Co. v. Snell, 54 O. S., 197, and can not be tested by the rule stated in the third proposition of the syllabus in the ease of Railroad Company v. McCormick, 69 O. S., 45.

The latter case has no application to the charge in question, because there the negligence of the plaintiff was admitted, while here the charge required the jury to find that the plaintiff was free from negligence.

The motion to strike out the answer of the witness, Boehning, in his deposition at page 4 should, we thinkj have been sustained, although the error was not prejudicial. It is manifest from all the evidence in the case, that excessive rate of speed, whereby the motorman was prevented from stopping the car in time to avoid the accident after seeing the deceased, was not a controlling issue in the case; but the negligence causing the collision was the inattention of the motorman, whereby he failed to see the horse and buggy on the track, when by the exercise of ordinary care he would have seen them, and by .controlling the speed of the car would have avoided the collision.

This latter issue was tendered by an amendment to the petition, which was filed more than two years after the right of action accrued, and to' which the defense of the statute of limitations was made. The cause of action was not thereby changed. It only described more particularly the negligence of the defendant in operating the car, which was the basis of the action. Spice & Son v. Steinruck, 14. O. S., 213; Zieverink et al v. Kemper, Receiver, 50 O. S., 208.

This is the second time the ease has been tried, and although the damages awarded in the last trial are $1,000 more than in the former trial we are not prepared to hold that at the age of the decedent, to-wit, thirty-seven years, the pecuniary loss to his wife and four young children was less than the amount awarded by the jury. Finding no prejudicial error in the record the judgment will be affirmed.


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    MANDAMUS TO COMPEL CALLING OF MEETING OF STOCKHOLDERS.
    Circuit Court of Cuyahoga County.
    State of Ohio, ex rel John Ferencz, v. The Unida Gold Mining Company et al.
    Decided, May 9, 1910.

      Corporations — Proper Procedure for Enforcing Private Rights of a Stockholder — Mandamus—Injunction—Supervisory Powers over Corporations of Other States.

    1. Mandamus is not the proper proceeding by which to require the secretary of a corporation to call a meeting of its stockholders.
    2. The courts of this state have no visitorial or . supervisory jurisdiction with regard to the management of the internal affairs of a corporation of another state.

      Hart, Canfield, & Croke, for plaintiff in error.

      Palda & Svarc, contra.
    Winch, J.; Henry, J., concurs; Marvin, J., not sitting.
    The relator filed a petition in the common pleas court setting forth that the defendant company was incorporated under the laws of the state of Arizona, but having its principal office in the city of Cleveland, Cuyahoga county, Ohio, where the defendant, George H. Palda, its secretary, and the other defendants, some six in number, directors of said company reside. He sets forth that he is a stockholder of the company and requested said secretary to call and give notice of an annual meeting of the stockholders of the company to be held on the 21st day of February, 1910, pursuant to a by-law of the said company, which he sets forth, but that the defendants wholly refused to hold said meeting. The relator prays that a writ of mandamus may issue, commanding the defendants to perform their duties, as set forth in the constitution and by-laws of the corporation, and give notice of the time and place of the annual meeting of the stockholders. To this petition a demurrer was filed, which was sustained by the common pleas court, and the plaintiffs not desiring to plead further, judgment was entered dismissing the petition; to review said judgment this proceeding in error has been instituted.
   We apprehend that there are two reasons justifying the ruling of the common pleas court in sustaining the demurrer.

First, the relator mistook his remedy. The object of the remedy by mandamus is to compel public officers and private individuals in matters relating to the public, to perform their public duties. 19 Ohio, 415.

As stated by Judge Shauck in the ease of Fraternal Mystic Circle v. State, ex rel Fritter, 61 Ohio St., 628, “This is only saying, that private actions are appropriate for the redress of private wrongs.”

So it was there held that a member of a private corporation, though unlawfully expelled and excluded from participation in its benefits, is not entitled to a writ of mandamus to compel it to restore him to membership. The proper procedure to enforce the private rights of a stockholder in a corporation is pointed out in the ease of The Cincinnati Volksblatt Company v. Hoffmeister, 62 Ohio St., 189, where it is held:

‘‘ Injunction is the proper form of remedy to enforce the right of a stockholder in a private corporation, given by Section 3254, Revised Statutes, to inspect the books and records of the corporation.”

Another cogent reason why the demurrer was properly sustained is that the courts of one state have no visitorial or supervisory jurisdiction with regard to the internal affairs of a corporation of another state which in nowise affect the rights of the citizen as such, in common with all other citizens, and distinct from his private rights as a stockholder. This view is elucidated in the case of Madden v. Electric Light Co., 181 Pa. St., 617.

In the case of Mining Co. v. Field, 64 Md., 151, it is said:

"Where the act complained of affects the complainant solely in his capacity as a member of the corporation, whether it be as stockholder, director, president, or other officer, and is the act of the corporation whether acting in stockholders’ meeting or through its agents, the board of directors, then such action is the management of the internal affairs of the corporation, and in case of a foreign corporation, our courts will not take jurisdiction. ’ ’

We subscribe to this statement of the law, and for the two reasons stated, the judgment of the common pleas court is affirmed.


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    ATTACHMENT AGAINST NON-RESIDENT CORPORATIONS.
    Circuit Court of Hamilton County.
    E. A. Rosenham Co. v. Cohen & Mack.
    Decided, March 19, 1910.

      Attachment — Averments of Affidavit — Non-Resident and Foreign Corporations Distinguished — Amendment of Return of Summons — Service upon Agent — Sections 10238, 10244, 10253, 10262 and 11276, General Code.

    1. An affidavit in attachment which alleges that the defendant corporation is a non-resident of the county is not defective because of omission to aver non-compliance with the statutory requirement as to the filing by foreign corporations of a statement with the Secretary of State.
    2. Where there are debts owing to the defendant corporation in the county, service may be had on a secretary or agent, if no other chief officer can be found in the county; and where the attachment and service of summons were issued together and returned in the same way hy the constable, the two returns may he read and construed together as showing a lawful service of summons.

      Burch & Johnson, for plaintiff in error.

      Cohen & Mach, contra.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   The ground stated in the affidavit for attachment was the-statutory ground (Section 10253, General Code; 6489, R..S.) that the defendant .corporation was a non-resident of the county of Hamilton, Ohio, and not that it was a foreign corporation. A corporation may have a place of business in one county and thereby become a resident of such county but a non-resident of the other counties within the meaning of Section 10253. The affidavit was not therefore defective because" it contained no statement that the defendant corporation had not complied with Sections 183 et seq., General Code (148c and d, R. S.). Champion Machine Co. v. Huston et al, 24 O. S., 503.

A careful reading of the affidavit shows but one statement made on belief, to-wit, "that he believes said plaintiff ought to recover thereon the amount of three hundred dollars,” which is substantially the language of the statute. The action -of the justice in striking from the files the motion to discharge the attachment was irregular, but equivalent to overruling the same. There was no error in directing the constable to amend his return to summons and order of attachment to conform to the facts, especially as the rights of no third party had intervened.

The alleged error chiefly relied upon consists in overruling the motion to quash and set aside the service of summons.

The amended return on summons is as follows:

"Received this writ June 8, 1908, and June 8, 1908, served the same on defendant by leaving a certified copy thereof, and of the endorsements thereon, with Morris L. Bettman, personally, as managing agent and secretary of E. A. Rosenham Company, a corporation under the laws of New York, defendant. ’ ’

The return on the order of attachment which was issued at the same time as the summons is as follows, and is endorsed on the same sheet of paper with the return of summons:

“Same day served Morris L. Bettman personally, as secretary and managing agent of E. A. Rosenham Company, no chief officer of defendant corporation being found in Hamilton county, Ohio.”

To make service of summons good under Section 10244, General Code (6480, R. S.), it should affirmatively appear in the return that the managing agent is such agent in this state, and under Section 10238 (6477, R. S.), it should affirmatively appear that no chief officer could be found in the county before service could be had on a secretary or managing agent of the corporation.

There were debts owing to the defendant corporation in this county, hence the action was rightly brought under Section 11276, General Code (5027, R. S.), and service could be had on the secretary and managing agent if no chief officer be found in the county. While the return on the order of attachment shows that no chief officer of the defendant corporation could be found, the return on the summons does not, but where the order of attachment is made to accompany the summons we think the presumption is that the same reason which required the order of attachment to be served on the secretary and managing agent, existed and operated in the service of summons.

Section 10262, General Code (6496, R. S.), provides as follows:

“If the order of attachment is made to accompany the summons, a copy thereof and the summons shall be served upon the defendant in the usual manner for the service of a summons, if the same can be done within the county.”

In pursuance of this provision the order of attachment and summons were issued together and returned in the same way by the constable, who evidently intended to make the same return on each; but failing to do so we think the two returns should be read and construed together as showing a lawful service of summons.

The judgment will be affirmed.