text:
    CONSTITUTIONALITY OF SCHOOL FUND DEPOSITORY ACT.
    [Circuit Court of Preble County.]
    The State of Ohio, ex rel The Board of Education of Eaton, Ohio, v. Geo. W. Rehfuss, Treasurer of the Eaton School District.
    Decided, April, 1905.

      School Funds — Mandamus io Compel Deposit of — In Official Depository —Requirement of Security Company Bond Directory Only — Section 3698 Constitutional.

    1. Inasmuch as the primary purpose of Section 3968, providing for the designation of an official depository for school funds, is to obtain a revenue from the idle moneys of school boards, the provision of the act that the depository shall give a good and sufficient bond “of some approved surety company” is incidental merely, and indicates a purpose to require a good and sufficient lawful bond, and nothing more.
    2. It follows, therefore, that the objectional provision of the act is directory only, and that the act is constitutional.
    Wilson, J.; Sullivan, J., and Dustin, J., concur.
   This is a suit in mandamus to compel the defendant, who is the treasurer of the Eaton School District, to deposit the school funds in the bank named by the board as the official depository.

The defendant answers that the depository was designated under the provisions of Section 3968 of the Revised Statutes, and that the law is unconstitutional. A demurrer is interposed to the answer raising the question. The ground upon which it is claimed the law is unconstitutional is that it requires the bank named as the depository to “give a good and sufficient bond of some approved security company.”

The decision of the court in Stale, ex rel, v. Robbins, 2 O. L. R., 373, holding Section 3446c, as amended April 20th, 1904 (97 O. L., 182) known as the Craft’s Law, to' be unconstitutional, is relied upon. The purposes of the law, as it is said by Davis, J., in the opinion of the court, was to make security by security companies exclusive and compulsory for the benefit of the security companies, and not to subserve the public welfare. Such a purpose, the Supreme Court holds, is violative of the Constitution, because it unnecessarily interferes with the right of contract.

M. Cahill, Prosecuting Attorney, E. P. Vmoghan and J. F. Gilmore, for the school board.

Risinger c& Bisinger, for the treasurer.

'That can not be said of the law which is challenged here. Its purpose is to establish a depository for school funds, under certain named restrictions, for the benefit 'of the public.

The boards of education are authorized to designate as the depository the bank offering at a competitive bidding the, highest rate of interest, in no case less than two per cent.; the deposit shall not exceed the paid-up capital stock of the bank, and shall not exceed three hundred thousand dollars; the bank shall give a good and sufficient bond of some approved guaranty company in a sum at least equal to the amount.deposited.

It is- obvious that the primary purpose of the law is to obtain a revenue from the idle moneys of the school boards. The provisions for security are incidental merely.

Two days before the passage of the school code, of which this section is a part, the Legislature had enacted what is known as the Craft’s Law, now held to be unconstitutional. If that law had been valid, as the Legislature must have assumed that it was, no other kind of security would have been lawful. Section 3968 simply followed its provisions, the purpose being to require a good and sufficient lawful bond.

It is the duty of the court to uphold the law establishing a depository for the benefit of the public if it can be done. In order that it may be done and that the deposit may be secured by a lawful bond, the court is authorized, we think, to regard the words designating the character of the security as directory 'merely and not vital to the purposes of the statute.

It can not be said, if the Legislature had known it could not so direct as to the character of the security, it would not have passed the act. The demurrer to the answer will be sustained, and a peremptory writ may issue forthwith at the costs of the defendant.

      Petition in error filed in tbe Supreme Court by Rebfuss, treasurer, on June 30, 1905; motion for. an order staying execution of the judgment below overruled July 10; cause dismissed September 26, for failure to file printed record.


source: Caselaw Access Project

license: Public Domain

text:
    UNAUTHORIZED ACT OF EXECUTOR..
    [Circuit Court of Hamilton County.]
    John Wentzel, Executor and Trustee of the Estate of Henry Wentzel, Deceased, v. Charles R. Chesley and Elizabeth Chesley.
    Decided, December 19, 1905.

      Wills — ■Title—Unauthorized Act as to, by Executor — Consent of Devisees to Unauthorized Aat — Estoppel—Statute of Limitations— Burden of Proof.

    1. Where a testamentary trustee, under mistake as to his authority, ■ has conveyed away a part of the assets of the trust estate, without consideration, there being no intervening equities, a court of chancery will compel its restitution to the body of the trust
    2. The burden of proof will be upon those endeavoring to set up facts and reasons why this should not be done.
    Jelke, P. J.; Swing, J., and Gifpen, J., concur.
   On December 18, 1883, Henry Wentzel -died testate, making J-obn Wentzel executor and trustee of his will, the portions of which will involved in this ease are as follows:

“Second. I will and bequeath to my son, John, all my real and personal estate in trust for the use and benefit of my beloved wife, Margaret.Wentzel, during her natural life, if so long she remain unmarried.
, “Third. In case my wife shall re-marry, I will and bequeath to her one-third (1-3) absolutely of all my real and personal estate; the remaining two-thirds (2-3) to be equally-divided between my four children, John, Lizzie, Therese 'and Anna. -
“Fourth. I will my beloved wife the privilege, power and prerogative to dispose of, by will at her death, a one-third interest in all the real and personal estate.
“Fifth. If my wife elects and takes against this will, I will and bequeath that the remaining portion of all my property be equally divided between my four children, John, Lizzie, Therése 'and Anna.
“Sixth. I will and bequeath, at the death of my beloved wife, Margaret Wentzel, all my real and personal property — - except the one-third above mentioned — shall be equally divided between my four children, John, Lizzie, Therese and Anna.
“ Seventh. I will that when money, which I have loaned, becomes due and the money due at my death on policy 72,619, issued by the Connecticut Mutual Life Insurance Company of Hartford, be collected and invested and re-invested, on good security, by my son John, the interest to be paid to my beloved wife. ’ ’

In March, 1885, said John Wentzel, the executor and trustee as aforesaid, invested of the funds of said estate the sum of $2,080 in a certain lot of land situate on the southwest corner of Wheeler and McMillan streets, Cincinnati, Ohio, and subsequently three thousand dollars in building a brick house thereon, making a total expenditure of about five thousand dollars.

Christina Chesley was the daughter of the widow, Margaret Wentzel, by a former husband and the step-sister of John, Lizzie, Therese and Anna Wentzel.

With the knowledge and the approbation, at the time it seems, of the widow, Margaret Wentzel, and her daughter Anna, John Wentzel, the executor and trustee, took the title of this property in the name of Christina Chesley, where the title to said property has remained ever since.

Christina Chesley has died and the property appiarently by inheritance passed to Charles R. Chesley.

Margaret Wentzel and Anna Wentzel, now Anna M. Hawkins, claim that they did not fully understand the transaction by which said title was taken in the name of Christina Chesley. Action is herein maintained by the said John Wentzel, executor and trustee, to recover and have brought back into the assets of the estate of Henry Wentzel, deceased, this property. It is manifest from a reading of the will that in doing as he did, the said John Wentzel, as executor and trustee, had no right, power or authority under the will so to do. This is admitted by counsel for defendant, but it is claimed that it was done with the knowledge and consent of the widow and children of Henry Wentzel, deceased, and that the same has been acquiesced in now so long that the transaction can not be disturbed. We do not think that this is so. This action is in no way barred by any of the provisions of the statute of limitations. This property was clearly bought with the funds of said estate, and unless there is some estoppel, we see no reason why it should not in equity be restored. Neither Christina Chesley nor her son Charles ever paid one dollar on account of said property, but on the contrary have had the use and enjoyment of the same from 1885 to the present time without paying rent of any kind therefor.

It is extremely doubtful whether the widow, with the children of Henry Wentzel, could ratify and approve this unauthorized act of the executor and trustee by verbal consent or tacit acquiescence. It seems to us that if they had any power at all, which is extremely doubtful, during the life of Margaret Wentzel, jto confirm this act, it ought to have been by deed. The power of Margaret Wentzel over the estate of Henry Wentzel or any part thereof, is clearly indicated in items fourth, fifth and sixth of said will, and her power of disposition over the same could be exercised in no other way. A reading of the will would rather disclose that the object of the testator was to provide against the impulses of maternal generosity on the part of Margaret Wentzel and the importunities of any of her children, and to insure the conservation of the estate so as to furnish her an income as long as she lived.

Mrs. Therese Hirsh and Mrs. Lizzie Paine (both nee Wentzel) testified that they did not know of the transaction at the time it was made, and that immediately upon discovery of the same they have objected to and protested against it; Mrs. Anna M. Hawkins, (nee Wentzel), testifies that she knew of the transaction and rather procured her brother to make the same, always with the understanding, -however, that it was a gift by the mother, Margaret Wentzel, out of her third to her daughter Christina, the said Anna’s step-sister, and that she had no knowledge of the lack of power in the said John Wentzel, executor and trustee; that since she learned that the same was being taken out of the general assets of the estate, and that her mother had no power under the will to take this in this manner ¡specifically out of her third, she objected and has ever since and does now object. The said John Wentzel testifies that he simply blundered.

John Wentzel, for the plaintiff.

H. L. Gordon and G. A. Ginter, contra.

In the face of the will and the admitted facts, the burden of proof to show the facts of consent, be that of such legal significance as it may, is on the defendant. The preponderance of proof, however, is plainly against the defendant in favor of the plaintiff. We see ho reason for any estoppel. Neither Christina Chesley nor her son Charles have ever parted with anything on account of this property, neither have they been induced to change their legal relation or incur any obligation 'or liability on account thereof. They simply have enjoyed a residence for a period of years without cost to which they had no legal right, for the use of which, however, there is no claim made,' and this court would not allow any. But as to the corpus of the property, it is an asset of the estate of Henry Wentzel and as such ¡ought to go back into' the hands of the executor and trustee to strictly follow the course prescribed for the assets of the testator’s estate, in his will.

There is a sentimental hardship in this conclusion, but no legal one. Margaret Wentzel, the widow, did not testify. The executor and trustee says that she is aged, and now needs for her comfortable maintenance and support the property. We therefore find for the plaintiff and decree may be had accordingly.


text:
    PROVISIONS AGAINST DANGERS ARISING AS WORK PROCEEDS.
    [Circuit Court of Lucas County.]
    William Zarembski v. The Cincinnati, Hamilton & Dayton Railroad Company.

    Decided, January 30, 1905.

      Negligence — Railway Company Employs Men to Remove Iron Ore by the Ton — Man Injured by Palling Mass of Ore — Company Not Liable.

    Z was one of a gang of laborers employed by the railway company to remove in wheelbarrows a large pile of iron ore. The men were paid by the ton, and the pay of the boss was taken out of the proceeds'o'f the work and pro rated among the men. The boss, after endeavoring for some time to loosen a mass of frozen ore, abandoned the effort, and a short time thereafter the mass fell and Z was injured.

      Held-. That no liability on account of the accident attached to the company for which the work was being done.
    Hull, J.; Parker, J., and I-Iaynes, J., concur.

       Affirmed by the Supreme Court, without report, Tuesday, October 3, 1905.

   The plaintiff in error, who was the plaintiff below, brought ‘his action against the railroad company to recover damages, which he claims he sustained on account of the negligence of the company. He complains that the company did not furnish him a safe place to work and was negligent in that regard, and that on account of that he was injured. He was employed upon the docks of the company as a common laborer, at the time of his injury, to shovel iron ore and wheel it to a place on the docks to be loaded into cars. He was injured by a frozen mass of iron ore weighing about eight or nine hundred pounds, some four feet long, and about a foot square, which had become fastened in the trestle over his head and lodged there. He was at work immediately under this trestle shoveling iron ore in March, 1903, and while at work there in the afternoon, about half-past four, this mass of ore fell and broke his leg and otherwise injured him. It is claimed that the railway company was negligent in permitting this piece of ore to be suspended in the way or lodged in this manner, on the trestle, so that it was in danger of falling upon the plaintiff, as it finally did fall.

At the close of the plaintiff’s testimony, upon motion, a "verdict was directed in favor of the defendant and judgment was entered upon the verdict, and it was to reverse this judgment that a petition in error was filed in this court. The court below held that the testimony did not tend to show any negligence on the part of the railroad company and the question is, substantially, whether the company failed in any respect or was negligent in any respect in the matter of leaving this iron ore, or in the matter of giving plaintiff a safe place to work.

Zarembski had been employed at this work since the December preceding his injury, which was in March, 1903. The ore on the docks had been taken off the vessels the summer and fall before and put onto small ears, dump cars, as they were called, and these were propelled úp the trestles and the coal dumped off .so that the ore fell down upon the dock and piled up in that way, until it extended up to the trestle, which was probably about twenty feet high at this point; and, during the winter, Zarembski and other men had been engaged in moving this ore, which had been so piled up, or stacked up, putting it on wheelbarrows and taking it away; so that it might be put into cars; they began at the bottom edge of the pile and kept moving it away, and the pile was thus gradually lowered. All of the ore had been moved away from under this trestle, except a very small pile, leaving this mass of frozen ore lodged in the trestle above, as I have said. About half-past four in the afternoon, Zarembski, with the other men of his particular gang, were directed by the gang boss, as he was called, to move that small pile of iron ore that was under 'this trestle to some other part of the dock; he had been working only a half an hour at this work when this mass of ore fell upon him and injured him.

The men were employed to move this iron ore and were paid for it by the ton; they were not working by the day but by the ton; and the gang boss, 'as he was called, a man by the name of Stump, was employed with the rest of the gang to 'do this work, and he received the same pay as the rest of the men; but instead of being paid directly for the work he did by the railroad company, when the other men were paid, his pay was taken out of what they were entitled to, was retained by the company, and he was paid with that money, so that the money that he received came really from the rest of the gang, pro rata; that is, it it was taken out of the compensation for moving this iron ore at so much a ton, his pay being secured in that way; but he was employed simply as one of the gang. He seems to have been a kind of a manager.

On the morning of the day that Zarembslri was injured, sometime during the foreno'on, the gang boss had his attention called to this mass of iron ore on the trestle by the men’ of another gang (this whole gang was divided into smaller gangs), and the boss went upon the trestle and endeavored to dislodge this piece of ore with a pick or bar of iron; and he testifies that he worked at this work a half an hour and was unable to dislodge it, and he left it and came down, and for some reason, about half-past four in the afternoon, it fell and injured the plaintiff.

The mass of frozen ore had been left on the trestle by the men who were at work and had been at. work upon the dock, in doing their work of shoveling away this pile of ore under this part of the trestle, and it had been there some four or five weeks before this injury. The record is very brief; only three witnesses were called, the gang boss, one other man, and the plaintiff himself.

We are of the opinion that the action of the court was correct in directing a verdict. The gang boss, Stump, was employed in the way that I have suggested, and, in our opinion, he was, so far as the plaintiff was concerned, and the other men upon the dock, a fellow-'servant and not a superior officer with power to bind the company by his negligence, if he was negligent in this instance. Pie came to the company with the rest of the gang, according to the testimony; he was simply their boss; he received the same pay as they did, and it may be said was their manager; he was not put in authority by the railroad company, except in so far as it acquiesced in his being appointed by the gang themselves as a gang boss, as they called him. They were all working similar to independent contractors — they were doing work by the ton. The railroad company was bound, undoubtedly, to furnish to these men a safe place to work — that rule is well established. It was bound to use ordinary care to see that the docks were safe, that the machinery with which they did the work was safe; they were bound to use ordinary care in ail those respects. But the danger here was one that came from the very nature of the work and grew out of the performance of the work by the men themselves. Here was a great pile of ore, running from the dock up to this trestle; they were gradually taking it away, shoveling it into wheelbarrows and wheeling it away; as they did their work, the ore was liable to fall upon them, if they took it away leaving a projection or overhanging' mass of ore; and the men themselves left this mass there, one of the gangs— whether the gang that Zarembski worked wdth or not; the evidence perhaps discloses that he did not work at this particular pile before the day he was hurt; but the men themselves left this mass of iron ore upon the trestle above them and above the dock. It was incident to and a result of the very work which they were doing; and, in our judgment, the railroad company was not legally required to see that the men performing the work that they were hired to do by the ton, Heft no mass of iron ore or piece of iron ore in a way that it might fall down upon some of them when they were at work.' It is held by the authorities that where a danger arises from the work itself, that men are doing such as this was, that the master is not liable". Upon this question we cite the case of Durst v. Carnegie Steel Co., 33 Atlantic Rep., 1102 (173 Pa. St., 162). The second and third paragraphs of the syllabus are as follows:

“■2. 'When the only possible clanger to an employe engaged in making an excavation is such as may arise during the progress of the work, the employer is hot bound to stand by during the work and see if a danger arises, it being sufficient if he provide against such dangers as may possibly arise, and gives the workmen the means of protecting themselves.
“3. Injuries to a workman engaged in making an excavation through the falling of earth upon him are not shown to have resulted from the negligence of the employer by the fact that he knew that a sewer ran through the place where the excavation was to be made, and failed to warn, the employe.”
This case was affirmed upon the opinion of the trial judge. In the opinion published on page 1103, this is said:
“It will be, observed that the place as it' stood when the work commenced was perfectly safe. The danger could only arise as the work progressed, and be caused by the work done. In such a ease we do not think it is the duty of the employer to stand by during the progress of the work to see when a danger arises. It is sufficient if he provide against such dangers as may possibly or probably arise, and gives the workmen the means of protecting themselves. They should look out for such dangers, and use the means provided.”

Now in the case at bar dynamite was furnished by the company and men provided to explode it and break up pieces of ore like this, if called upon to do it by the men at work. If this gang boss, Stump, should, be regarded as a foreman in the employ of the company, as such it would be difficult to say that he was guilty . of negligence in any event, for the testimony shows, as I have said, that on the forenoon of that day he had endeavored to dislodge this piece of iron and worked for half an hour with tools, but was unable to do iso. It would seem that a man of ordinary care would hardly anticipate, under the circumstances, that the piece of ore would fall during the day, and no explanation is given showing why it did fall; it was a f airly warm day in March, and it may have been melted or thawed and fallen on that account; but there is -no testimony to show that that caused it to fall. There is no evidence that can be relied on that any cars were run upon this trestle during the day. Stump thought at first that there were, but after-wards he said he did not know anything about it; he did not see any go up there, and could not tell, therefore, what it was that caused this mass of iron ore to fall on that afternoon. It is entirely unexplained in the record. For some reason it became dislodged about the middle of the afternoon and fell, and plaintiff was injured. But we are of' the opinion that the gang boss is not to be regarded as a foreman of the railroad company, so as to bind the company by his negligence, if he was guilty of any negligence. It is well settled, of course, that an employer does not insure his men against .all possible injury, and whatever dangers are naturally incident to the employment. The employe ordinarily .assumes them; and that there was some danger in doing work of this kind is clear; Zarembski testified that he did not know that this mass of iron ore was lodged on the trestle; that he did not see it. But we do not think it was necessary to go into' the doctrine of assumed risk to decide this case. For the reasons given the judgment of the court of common pleas will be affirmed.

Harvey Scribner and Cornell Schr&iber, for plaintiff in error.

Swayne, Ha/yes & Tyler, for defendant in error.


text:
    ATTORNEYS’ SERVICES NOT NECESSARIES.
    [Circuit Court of Hamilton County.]
    Karch & Quasser v. Kathryn Bacciocco.
    Decided, December 18, 1905.

      Attorneys’ Fees — Policy of the Law as to the Disallowance of — Services of Attorneys not Necessaries within the Meaning of the Attachment Statute — Review on "Weight of the Evidence.

    1. A claim for necessaries can not be based upon services rendered by an attorney in prosecuting the claim of a divorced wife against her former husband for support and education furnished their minor child, but such a claim is like an ordinary debt to be collected at the expense of the creditor.
    2. Section 6524 is broad enough to permit of a review of proceedings before a justice of the peace on the weight of the evidence.
    G-iffen, J.; Jblke, P. J., and Swing, J,, concur.
   Plaintiffs in error commenced an action before a justice of the peace to recover from the defendant in error for services rendered' as attorneys at law in consultation concerning a claim that defendant in error had against her divorced husband for support and education furnished their minor children. An attachment was issued upon the ground that such services were necessaries. The case was heard upon' evidence before the justice, a bill of exceptions taken embodying: all of the evidence and upon error, in the court of common pleas, the attachment was dissolved.

It is claimed, first, that the services rendered were necessaries and therefore not exempt from attachment,; second, that the court had no power to review the question upon the weight of .the evidence.

It will not be claimed that attorney fees, although indispensable to the successful prosecution of most law suits, are necessaries within the meaning of the attachment statute, but it is claimed that inasmuch as the liability of the husband was for necessaries furnished by the wife for the minor children, that the attorney’s services with reference to that claim are of the same nature. It does not follow, however, that because the claim sought to be collected is for necessaries the means employed for its collection are of the sdine character. The husband, although primarily liable for necessaries furnished to the minor, might have a variety of valid defenses to the claim, in which event the wife would in no sense be justified in employing counsel or taking other action for the collection of the same.

We are of opinion that such claim is like any ordinary debt,' the collection of which must be borne by the creditor, and it has always been the policy in this state to disallow attorney fees to the plaintiff except where specially provided by law. In the- case of Dorsey v. Goodenow, Wright’s Reports, 123, the first proposition of the syllabus is as follows: ' ¿

“Where a wife engages -a lawyer to prosecute a divorce against her husband, the law will not imply an undertaking by the husband to pay the fees.”

And in the case of Leavans v. Bank, 50 O. S., page 591, the court say:

“A stipulation in a mortgage to the -effect that, in ease an action should be brought to fox’eelose it, a reasonable attorney fee, to be fixed by the court, for the services of the plaintiff’s attorney in the foreclosure action, should be included in the decree and paid out of the proceeds -arising from the sale of mortgaged property, is against public policy and void.”

L. PL. Pummill,' for plaintiff in error.

G, W, Balter, contra.

In the first cas-e, t-he decision is based upon the ground that there is n-o implied agreement on- the part of the- -husband to pay for such services, and in the second case that it is against public policy.

It does not appear from the testimony that the -services performed were necessary for the sustenance or protection of the wife or of the minor child. The necessaries to which the claim related and the consultation was had, were already furnished and constituted a debt arising from an implied contract, and there was mo implied agreement to pay the expenses incurred in attempting to collect the same. If they were not necessaries for which the husband was liable because -of his relation to the minor child, neither are they necessaries as against the wife within'the meaning of the attachment law.

The other proposition advanced by counsel for plaintiff in error is answered by the ease of Seville v. Wagner, 46 O. S., 52, the first proposition of the syllabus being:

“An -order of a justice of the peace discharging or refusing to discharge an attachment, may be reviewed by petition in error in the court of common pleas, and for that purpose a bill of exceptions may be taken, embodying all the evidence upon the hearing of the motion to discharge, together with the ruling of the justice, and the exceptions thereto.”

While it is true under this decision -that the Supreme Court will mot review such question upon the weight of the evidence, it is said at page 55, that Section 6524, Revised Statutes, contains no such limit as that contended for, hut is broad enough to allow -any question to be raised by bills of exceptions taken under its provisions that may properly be presented by a .bill of exceptions.

Our conclusion therefore is that the judgment should be affirmed. ,


text:
    STREET IMPROVEMENTS IN EXCESS OF BENEFITS.
    [Circuit Court of Franklin County.]
    Margaret Murphy v. Nelson Sims, Treasurer, et al.
    Decided, October, 1905.

      Streets — Liability of Abutting Property Owner — For Assessment for Improvement of — Where Assessment Exceeds the Benefits — Bui the Abutter Participated in the Improvement — Presumption as to Signature to Supplemental Petition.

    1. A finding that an abutting property owner signed the original petition for improvement .of the street, and knew that the work was progressing, and that the property would be assessed, is not sufficient to support the conclusion that he participated in the improvement of the sidewalk in accordance with a supplemental petition; but where his name appears on the supplemental petition also, the mere fact that he has no recollection of signing it does not disprove the signature, in the absence of a motive on the part of any one else for placing his name there.
    2. A plaintiff who is active in promoting a street improvement under a statute which provides that the assessment shall be by the front foot, is not entitled to relief as to the excess of the assessment over the special benefits resulting from the improvement.
    Dustin, J.; Wilson, J., and Sullivan, J., concur.
   This cause is pending here on exceptions to the master’s report, and also on a motion to confirm the same.

The master in his finding of fact made no finding upon the claim that plaintiff had signed the supplemental petition, dated February 6, 1892. Upon the point as to whether she had actually participated in the promotion of the improvement, he found she had signed the petition dated September 1, 1892, in which she waived all claims for damages by reason of said improvement, and that an assessment would be made against the abutting property, which would include her property. There are other findings of fact, but the above are all we think necessary to be considered upon the exceptions. As the master found that plaintiff had signed the petition of September 1, 1892, asking that a change be made in the grade, for the reasons therein stated, and that plaintiff knew that the work was being done, and that her property would be assessed, it was necessary to find whether she had signed the supplemental petition of February 6, 1892, to support the conclusion that she had actually participated in the improvement.

We do not think the facts found sufficient to support the conclusion of the master upon this point, and, therefore, it is necessary for the court to determine from the testimony, whether the plaintiff signed the supplemental petition of February 6, 1892. She is positive she signed no paper, relative to the improvement, except one signed by her sister, and we think it is because her sister’s name is not to this paper, that she claims she did not sign it. Her attention had not been called to the fact of her name to this paper until the trial below, and the lapse of time furnished, we think, ample reason for forgetting it, if she had signed it. No motive is shown in any other, person to sign her name to it. At the time, this controversy could not have been in contemplation. No controversy over assessments could have suggested to any one that her signature to the paper would become important. The petition had a sufficient number of names to confer jurisdiction under the statute and authorize the commissioners to proceed. Hence all that the parties had in contemplation at the time could as well be accomplished without her name as with it. There is no reason, at least none is made'to appear, why any one should attach her name but herself. It can not be said to be unusual to forget such a fact, especially when, as in this ease, there was no imperative reason why the fact should be fixed in the mind for the purpose of remembering it. For no reason was it required she should remember it. Our opinion is she signed it, and has forgotten it. We recall counsel’s oral argument, to concede as much. This supplemental petition asked for 'all contained in the original, and in addition that the sidewalks be graded, as provided for in the so-called Taylor Law. The commissioners took no action in the matter until after the supplemental petition was filed, and then acted upon both as one petition. Plaintiff was, therefore, an active participant in the promotion of the improvement. So far as doing the work was concerned, she obtained the improvement as prayed for in the supplemental petition as well that asked for in the original petition.

It is contended by plaintiff’s counsel that admitting all these facts, the plaintiff may still challenge the assessment as to the excess of special benefits, which question is one of fact; and her counsel claims the testimony clearly shows that the amount of the assessment is in excess of special benefits. The leading case cited and relied upon by plaintiff’s counsel in support of this claim is that of Birdseye et al v. Village of Clyde, 61 Ohio St., 27. It was there held “to be the general policy of the legislation of the state to restrain the power of local assessment by fixing a limit beyond which municipal corporations may not go. The policy is the same without doubt a® to all local assessments, unless the contrary clearly appears. ’ ’ An intention to adhere to that policy will be presumed in the enactment of particular statutes relating to local assessments, and a construction given them if possible allowing the application of the general limitations. In the* application of this rule to the statutes to be construed in that case, it was held that a party petitioning for the improvement thereby consenting to the raising of a certain proportion of its cost by assessment on all the abutting property, was not estopped to maintain an action for an injunction, restraining the collection of the amount of said assessment in excess of special benefits. The assessment in that case as in this was by the foot front, and the contention of Birdseye was that, notwithstanding it was by that method, yet the limitation providing that an assessment for such an improvement could not exceed twenty-five per cent, of the taxable value of this property, applied.

The statute under which the assessment was made in that case provided that such assessment by the foot front should be made on the abutting property “as provided by the laws of the state of Ohio.” By this provision, some of those of the general statutes of the state relating to assessments' for local improvement were incorporated into and became a part of the special act and intended to govern assessments under the act. It was for this reason, fully set out in the opinion, that the owner had the right to presume, that the assessment would be made according to the provisions of said statutes, and hence he was not estopped from maintaining his action to enjoin any assessment in excess of the amount provided in the provision of former statutes incorporated into the special act. The statute here under consideration provides that the assessment shall be by the foot front upon the abutting property, not exceeding a depth of 250 feet, etc., in accordance with the provisions of law now enacted or hereafter enacted applicable thereto “and not inconsistent with this act” — Section 6, very unlike the special act under consideration in the Birdseye ease. To make the assessment upon the basis of the taxable value of the property, would be inconsistent with the provisions of the act, the plaintiff being one of the petitioners, and thereby active in the promotion of the improvement, knowing that her lands would be assessed for a part of the costs and expenses to the amount found by the commissioners per foot front. After such conduct ’and knowledge on her part, it would not be inequitable to others if she were allowed to complain of the illegality of the assessment because the statute under which the proceedings were had was unconstitutional, or that the assessment was in excess of special benefite. (Shepard v. Barron, 194 U. S., 553; 3 O. L. R., 327).

Ulric Sloane, for plaintiff.

Dyer c6 Williams, for defendant.

At the time the proceedings were instituted and the improvement made, a law of a similar nature was held to be constitutional in the case of The State, ex rel Hobbs, v. The Commissioners, 35 O. S., 458. The fact that similar laws were long afterward held to be unconstitutional wvuld not entitle her to the remedy by injunction. Shoemaker v. Cincinnati, 68 O. S., 603.

The exceptions to the master’s report are, therefore, sustained, and as a consequence motion to confirm is overruled, and plaintiff’s petition is dismissed at her costs.,


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    PROPERTY OWNER’S INTEREST IN PREMIUM ON BONDS.
    [Circuit Court of Hamilton County.]
    William C. Mudge v. The Village of Evanston et al.
    Decided, December 19, 1905.

      Street — Assessment for Improvement of — Credit to loliich Abutting Oimer is Entitled — From Premium Received on Bonds Sold.

    An abutting owner, upon whose property a street assessment was levied prior to the passage of the Municipal Code, is entitled to be credited with bis proportion of tbe premium received from the sale of bonds to meet tbe cost of tbe improvement, but this credit can only be made upon tbe interest payable on tbe deferred installments of bis assessment. (1 C. C. — N. S., 97, followed.)
    Jelke, P. J.; Swing, J., and Giffen, J., concur.
   We adhere to the law as laid down in the ease of Fridman v. Norwood, 1 C. C. — N. S., 97, where this court said:

“To even things up, whatever of a premium or surplus is yielded should be credited back on the assessments of those who have the principal and interest of the debt to pay.”

This case was affirmed by the Supreme Court in 70 O. S., page 431. The error of counsel for William C. Mudge lies in seeking to have the premium produced go to a reduction of the cost of the improvement. Thi¡s it does not do. The cost of the improvement is made by the actual expenditure of money in paying therefor. The premium goes to and affects the cost of borrowing the money for the deferred payments. If the municipal council, by some financial thermometer, could exactly know the rate of interest which would yield par for the bonds, it would be their theoretical duty to issue and. offer for sale bonds at that rate of interest. The premium bid and paid is the capitalization (with provision for its own absorption) of the margin of excess between, the market price of the money and that engaged to be paid in the bonds. To carry out the theory of the Fridman case, the municipality and the assessment-paying property owners in this deal should carry the burden evenly and without profit to either; hence the premium reduced should be credited back upon the interest payable by the property owners on the deferred assessment installments. The property owner, William C. Mudge, could have paid the cash assessment and -the whole question of interest as to him would have been eliminated. So far as anything is shown herein, he never had the right to pay anything less than the face total of the cash assessment. It is a mere matter of mathematical determination to ascertain what it cost the village of Evanston to borrow this money, be it on a three, three and one-half, four, four and one-half or five per cent, basis. The fair thing then is for the property owner to pay the amount of the cash assessment plus the interest at the rate it oost the village to borrow the money. The principal of the obligation has at all times been liquidated and fixed; hence Stephens v. Phoenix Bridge Company, 139 Fed. Rep., 248, is not applicable.

Chas. B. Wilby, for plaintiff,

Frcmh E, Ewihel, contra,

The only uncertain thing was the rate of interest, and that was ascertainable immediately upon the sale of the bonds. The plaintiff, William C. Mudge, has ever since the assessment was levied had the use of this liquidated sum, which at law is deemed a valuable thing usually estimated at six (6) per cent., and said plaintiff should not complain if the municipal credit is substituted for his personal credit to his profit and advantage.

We are therefore of the opinion that the plaintiff should pay the amount of the assessment with interest from the date thereof at the rate determined ais above indicated, to date, without compounding; or, he may, at his election, adopt the ten annual instalment plan, by paying the past instalments with their interest 'Calculated as above, without penalty, and without further interest.on the defaulted payments, and continue the instalments (into the future to the end of the ten year period, all with interest fixed as we have found proper herein.

This question can not" arise as to assessments levied since the passage of the new Municipal Code. Fortunately, the Legislature in Section 1536-292, Revised Statutes, has eliminated this complication as to the future.


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    RIGHTS OF STEAM AND TRACTION ROADS AT STREET CROSSINGS.
    [.Circuit Court of Summit County.]
    The Akron & Cuyahoga Falls Rapid Transit Company v. The Erie Railroad Company.
    Decided, November, 1905.

      Railways — Traction Crossings of, on Public Streets — Contract Betioeen Steam, and Traction Companies as to Crossing Expenses — Requirement as to a Flagman — Rights of Steam Road, as Property Owner —Evidence.

    1 The requirement that a flagman be stationed at a railway crossing can only be made where it is found that the crossing is dangerous to the public; and where a railroad company obtains the right to run its trains over a given street crossing than theretofore allowed by the ordinances of the municipality, on condition that a flagman be stationed there, the expense thus incurred can not be thrown upon a traction company occupying the street, under an agreement whereby the traction company undertook, as a condition of making the crossing, to pay all expenses which might be “lawfully required” by the municipality or the state, for maintaining a flagman at said crossing.
    2. Moreover, the requirement as to a flagman having thus been obtained for'the benefit of the steam road alone, there was no consideration moving to the traction company, and payment of the expense thus incurred can not be enforced against the traction company.
    9. There are no rights vested in a steam road as an adjoining lot owner which would enable it to enforce a contract containing such a provision.
    Laubie, J.; Marvin, J., and Winch, J., concur.
    Error to the court of common pleas.
   As one ground for the reversal of this case, it is alleged that the trial court erred in refusing to admit the evidence offered by the plaintiff in error, the defendant below, to prove its defense to the first and second causes of action of the second amended petition, in substance, that such railroad company for its own purposes, advantage and profit, bad itself applied to the Barberton, village council and the commissioner of railroads, for the order to station a flagman at the crossing, -and agreed to pay the expenses thereof, if such order would be issued.

In the opinion of this court this evidence was competent, - as was substantially held by this court at a former hearing, and should have been admitted.

The contract sued upon provides that the traction company (conceding it to be bound by said contract as the successor of the second parties thereto) should pay “all costs and expenses which may be lawfully required of the parties hereto by the authorities of said village of Barberton or of said state of Ohio * * * for maintaining flagmen at said crossings.”

This clearly refers to and includes only independent action primarily instituted and taken by such village or state, and not such costs and expenses as are incurred by such railroad company by its own primary action, and for its own profit and advantage.

If it obtained such order for the appointment of a flagman under a contract with the village council, proposed by and entered into at the request of such railroad company, by .which it promised and agreed to place a flagman at such crossing, if the village council would repeal its ordinance restricting the speed of railway trains through the village, then such appointment was in effect substantially made by itself, for its own benefit, and was not “lawfully required” within the meaning of such original contract.

• The village or .state could under the statutes (Sections 3443a and 247a), only require flagmen to be stationed at crossings which, were found to be dangerous to the public; and if this railroad company thus obtained the right to make this crossing dangerous, upon .its promise to place a flagman there, it would •be unjust to allow it to recover the cost thereof from the traction company under the terms of the contract sued upon.

Viewed in the light of these facts, if proved, such construction of such contract would do 'violence to its spirit and intention, if not to its plain letter.

There is, however, another ground of error rélied upon by the plaintiff in error, to-wit, that there was no consideration for the promise to pay the cost and expense of maintaining a flagman, and that the judgment should have been for the defendant below instead of for the plaintiff.

This court is in full accord with such claim, and finds that such promise was void for want of consideration, and so held upon the former hearing; and judgment should have been entered for the traction company and the case dismissed.

The contract in question entered into by the predecessors of the parties hereto, was peculiar in this, that it attempted by its terms to secure rights to the railroad company not vested in it by the laws of the state, while on its part it granted to the other contracting parties no right of any kind that under their franchise they did not already possess.

The contract related to one matter only, the crossing of the railroad company’s track by the traction company’s road on a public street in the village named, and not a single right or privilege was- granted to it by the railroad company that it -was not already vested with under its franchise. Instead of that, its rights were restricted by the .wording of the agreement without recompense of any kind.'

When- a municipality annexes territory embracing a county road, as was- done here, the title in fee to such part of the county road vests in the municipality in trust for the public (L. S. & M. S. Ry. Co. v. Elyria, 69 O. S., 414, 427). Therefore, such title vested in Barberton when- it annexed the territory embracing the county road, now the street in question.

The traction company had the right to lay and maintain its tracks at the grade of such street, and along its center as it did, and across the track of the railroad by virtue of the rights -it acquired from the municipality under its franchise, without being liable to pay anything to the railroad company. • But at all events, under such state of facts, if any liability could arise to the railroad company by virtue of its being the owner of adjoining property, as claimed by it, no waiver of the right to enforce. such liability or release of damages, was provided for. in such contract, so as to constitute a consideration for such promise.

The railroad company had no right to compel the traction company to build an over-head crossing — a bridge; and even if it were the owner of adjoining lands, it was not referred to as such in the contract, and did not attempt to release the traction company from liability for any damage which might result to it as such adjoining owner from the building of such bridge. Where a company, like the plaintiff in ei*ror, acquires and is granted the. right to construct and maintain a single track along and upon a street of a village, as in this case, no additional burden is cast upon the land, and adjoining lot owners are not entitled to any compensation, if the track is laid at the grade of the'street, and along its center, as was done in this instance.

As it is not disputed, it must be taken as admitted, that.the traction, company had obtained the right under the statutes relating thereto, to construct and maintain its track on the street in question, and the cases citecl, Railroad Co. v. Williams, 35 O. S., 168, and Schaaf et al v. Railroad Co., 66 O. S., 215, are not decisive of this ease, as they related to the construction of tracks upon country highways, and upon the sides thereof, not upon their center.

The precise point involved in the case at bar, was made and decided in the ease of Mary E. Simmons v. The City of Toledo et al, 8 C. C. R., 535, where it was held that-—

“The city council has the power to grant the right to the use of a public street for the purpose of constructing a railroad; and when the city grants to an electric railroad company the right to use the street for railroad purposes, the right to -erect poles for the support of electric wires goes with it. Such use is not a new or additional burden which would entitle the property owners to an injunction.”

The plaintiff, an adjoining lot owner, sought by injunction to restrain the construction of the line until compensation was made to 'her. This case was affirmed by the Supreme Court without report, 51 O. S., 626, and has never been overruled so far as we know.

The owners of adjoining lots have hut an easement in the streets in front of their lots-, and while it is regarded as property, as fully as, the land itself, it is still but an easement, and not land, and consequently whatever injury is suffered by the lot owner in such cases, it is to the easement and not to the land; as, where the track is placed on the side of the street, and interferes with the free and unlimited use of the easement in obtaining egress and ingress by the lot owner from and to his lot, which is an injury different in degree from that suffered by the public. And the same result would follow if the poles were placed in such position, or in such numbers as to interfere with and obstruct such egress and ingress.

The purposes for which the traction company uses the street are old and established street purposes — the transportation of passengers and merchandise. The method only is new. Instead of transporting them in stage coaches-, hacks and wagons, they are transported in cars, which are propelled by- electricity instead of being hauled by horses. It is true, in order to so prop-el them, iron or steel rails are laid in the street, but when -they are laid in the center, and substantially- -at the grade of the street, as the speed of the cars can be regulated by the municipality, the inconvenience to the public is or may then be no greater than would be caused by the occupancy of the street by -the number -of the ordinary vehicles required to- transport the passengers and merchandise transported on -such cars; and the inconvenience suffered by such lot -owners would be the same as, and no greater than, that of the public.

In the case at bar, however, if the rights of the railroad company as an adjoining lot owner, were in any manner infringed, no right in that respect was released or parted with on the part of such -company, regarded as a party to such oonti act, as a consideration for the promise of the other parties thereto in respect to such flagman. Indeed, the contract itself provides in express terms that such other parties- “assumed all -responsibility -and liability to any and all persons for any -and all injuries -and damages to persons and property which might arise from the. construction and maintenance of such road.” [The italics are my own].

Rogers, Rowley, Bradley & Rockwell, for plaintiff in error.

Tibiáis c& Frank, for defendant in error.

It would, therefore, have been difficult for such other parties to have escaped paying the railroad company for any injury done to its adjoining property, not by the crossing of the railroad company's tracks, but by the construction of the traction line along Cornell street, if it had suffered any.

But at all events, such right was not involved, or necessarily parted with or released by the railroad company, a® the contract related and applied solely to the crossing of the track of the railroad company, and not at all to the occupation of any other portion of the street, or of the right of the traction company to construct its track along the street.

In the case of Cincinnati & H. St. Ry. Co. v. Railway Company., 21 C. C., 391 (affirmed by the Supreme Court, without report, January 22, 1901), it was held:

“Where a steam road crosses a street, a street railway which has the right to lay its track in the street may cross the railway track without'compensation to that company.”

For these reasons the judgment is reversed, and this court proceeding to render the judgment that the trial court should have rendered, the case itself is dismissed at the costs of the Erie Railroad Company.


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    PERSONAL JUDGMENT ON SERVICE BY PUBLICATION.
    [Circuit Court of Cuyahoga County.]
    Henry W. Leman, Receiver of The Mexican Southeastern Railroad Co. v. John C. MacLennan.
    Decided, October 27, 1905.

      Jurisdiction — Personal Judgment on Service by Publication — Without Yalidity, When — Record of, can not be Contradicted by Evidence Aliunde, When — Foreign Receiver of Corporation — Can not Maintain Action in this State to Collect Corporate Assets.

    1. A personal judgment, rendered in an action for money only in a state court against a non-resident of the state, who was served by a publication of summons, without personal service of process within the state, and who did not appear in the action, is without any validity; and where the record of said judgment contains an affirmative finding that the service was by publication, and no statement that the court otherwise acquired jurisdiction over him, said record can not be contradicted by evidence aliunde.

    2. The receiver of a corporation, with no other title to its assets and property than that derived from his appointment in a suit brought in another state to adjudicate and enforce liens and subject said assets and property to the payment of the claims of creditors, can not maintain an action in this state for the collection of said assets, either in his own name or in that of the corporation.
    Winch, J.; Marvin, J., and Henry, J., concur.
    Error to the court of common pleas.
   The plaintiff brought his action in the common pleas court, and in his third amended petition alleged three causes of action against the defendant.

In his first cause of action he recites that on the 5th day of February, 1898, in a certain action pending in the District Court of New Mexico, at Santa Fe, a court of general jurisdiction, the Mexican Southeastern Railroad Company, defendant in said action, was declared insolvent and plaintiff was duly appointed its receiver, with the usual powers of receivers, and was ordered to bring suit •against the stockholders of the corporation to recover such amounts as might be due from them, respectively, on account of unpaid stock liability.

That in compliance with said order plaintiff, as receiver, brought suit in said district court against all the stockholders of said company and the corporation; defendant, John C. MacLennan, being one of the defendants in said suit, and being a non-resident of New Mexico, said defendant was served by publication, and several creditors of the corporation having filed intervening answers and the corporation having answered, that said court entered its decree which is set forth in full in the said first cause of action.

From said decree it appears that the court allowed certain claims against the corporation, aggregating $26,369, which it found due said intervening creditors; that $9,000,000 of the capital stock of the corporation was issued by it to one George E. Detwiler and one Emil B. Bary, in consideration of the transfer by them to the corporation of a certain concession from the Republic of Mexico to them, and for no other consideration; that said concession had no actual value and that its transfer to the company did not constitute payment for said stock, or any part thereof; that before the incurring of said indebtedness, to said intervening creditors, the defendant, John D. MacLennan, with full knowledge that said stock had not been paid up, became, and was, at the time of said decree, the owner and holder of 15,649 shares of said stock, of the par value of $1,-564,900, and that certain other stockholders, named in said decree, were also holders of said stock which had not been paid up.

Said decree further finds that said defendant was liable to said receiver for the use and benefit of the creditors whose claims had been allowed, for the sum of $1,564,900, or such part as might be necessary to pay the claims of said creditors, and orders the receiver to proceed to collect the amount of said claims from said defendant, John D. MacLennan, and other stockholders, or either of them, wherever they might be found,

The first cause of action concludes with an averment that by virtue of said decree there is due from defendant to plaintiff the sum of $26,369.06 with interest.

The second cause of action, after incorporating, in it all the allegations of the first defense and a statement that the pleader is uncertain as a matter of law, how far the findings of fact and law, set forth in said decree, are binding- and conclusive ag-ainst the defendant “in that the record in said cause and decree as entitled therein- shows and contains a finding that the defendant was brought into court by due publication of the pendency of said suit, as required by law, and having made default therein a decree pro confesso had been theretofore entered against him in said cause, said record and decree being silent and making no other finding whatever of any kind of service than is above stated, and being silent and making no finding whatever of any appearance in said action by said MacLennan, either in person or by attorney,” yet that said MacLennan did in fact- enter his appearance in said cause by a regularly authorized attorney who took part in the argument of said cause, and argued the cause on behalf of said defendant.

The third cause of action, reineorporating the allegations of the first cause of action with an allegation of the pleader’s doubts as to the binding force of said decrees upon said defendant, proceeds to set forth the several findings in said decrees as facts, independent of said decrees.

To each of these causes of action the defendant demurred upon the following grounds:

1st. The plaintiff, as receiver of the Mexican Southeastern Railroad Company, appointed as such by the court in New Mexico, is without authority, outside of New Mexico, and has no legal capacity as such receiver to maintain this action.

2d. The plaintiff, as such receiver, has no title to the claims described in said causé of action.

3d. The facts stated in said causes of action are not sufficient to constitute a cause of action against defendant.

4th. There is a defect of parties defendant, in that all stockholders of said company should be joined as parties defendant hereto.

The demurrer being sustained by the common pleas court and judgment entered thereon, plaintiff brought the matter to this court on error, for a review of the rulings on said demurrer.

As. to the fourth, ground of demurrer, defect of parties defendant, we think defendant’s position is not well taken. Blair v. Newbegin, 65 O. S., 425.

The third ground of demurrer, so fiar as it raises the question that the decree pleaded in the first and second causes of action has no effect or validity as a judgment against defendant, we think is well taken.

“A personal judgment is without anyp validity, i| it be ren-. dered by a state court in an action upon a money demand against a non-resident of. the state, who was served by a publication of summons, but upon whom no personal service of process within the state was made, and who did not appear.” Pennoyer v. Neff, 95 U. S., 714; Oil Well Supply Co. v. Koen, 64 O. S., 422.

The record and decree contain an affirmative finding that the service upon MacLennan was by publication and no proof that the court otherwise acquired jurisdiction over him could be made, for it would tend to contradict the record, which is not permitted. 17 Am. & Eng. Enc. of Law, 1077, 1081.

But plaintiff claims that the decree, if not good as a judgment, at least amounts to an assessment upon MacLennan as a stockholder in the company, and that a corporation can make an assessment upon its stockholders without their presence and, upon the insolvency of the corporation, a court may make a like assessment, good as such, though not binding as a judgment.

Some support to this general claim is found in the case of Great Western Telegraph Co. v. Purdy, 162 U. S., 329, but we think that case distinguishable from the case at bar. Mr. Justice Gray, in delivering the opinion of the court seemed to lay stress upon the fact that the assessment made by the court “was such as the directors might have made before the appointment of a receiver. ’ ’ Manifestly the directors of the Mexican Southeastern Railroad Company could not have made the assessment the District Court of New Mexico made in this case, for, as between the corporation and the stockholders, the issue of stock in payment for the Mexican concession was good. Orton v. Edson Reduction Co., 5 C. C. — N. S., 541.

But, if we are wrong in this conclusion, we think the whole case depends upon the authority of the receiver to maintain this suit in Ohio, a proposition raised by the first ground of the demurrer.

This question may be considered settled adversely to the claims of the plaintiff, in the federal courts. The most recent utterance of the Supreme Court of the United States upon the subject is found in the case of Great Northern Mining & Manufacturing Co. v. Harris, 25 Supreme Court Reporter, 770, advance sheets published July 15, 1905, the syllabus of which case reads as follows:

“The receiver of a corporation, with no other title to its assets and property than that derived from his appointment in a suit brought to adjudicate and enforce liens and subject the property to the payment of the claims of creditors, can not be empowered -by the court of his appointment to sue in a foreign jurisdiction, either in his own name or in that of the corporation, to realize its assets.”

Mr. Justice Day, delivering the opinion of the court, malees the following observations:

“As to the power of the court to authorize the receiver to sue, we think the case is ruled by Booth v. Clark, 17 How., 338; 15 L. Ed., 1170, in which case the authority of the court to authorize a receiver appointed in one jurisdiction to sue in a foreign jurisdiction was the subject of very full consideration-In that case it was held that a receiver is an officer of the court which appoints him, and, in the absence of some conveyance or statute vesting the property of the" debtor in 'him, he can not sue in courts of a foreign jurisdiction upon the order of the court which appointed him, to recover the property of the debtor. While that ease was decided in 1854, its authority has been frequently recognized in this court, and as late as Hale v. Allison, 188 U. S., 56; 47 L. Ed., 380; 23 Sup. Ct. Rep., 244, it was held by Mr. Justice Peckham, who delivered the opinion of the court:
“ ‘We do not think anything has been said or decided in this court which destroys or limits the controlling authority of that ease.’ * * *
“It will thus be seen that the decision in Booth v. Clark rests upon the principle that the receiver’s right to sue in a foreign jurisdiction is not recognized upon principles of comity, and tlie court of his appointment can clothe him with no power to exercise his official duties beyond its jurisdiction. The grounds of this conclusion is that every jurisdiction in which it is sought, by means of a receiver, to subject property to the control of the court, has the right and power to determine for itself who the receiver shall be, and to make such- distribution of the funds realized within its own jurisdiction as will protect the rights of local parties interested therein, and not permit a foreign court to prejudice the rights of local creditors by removing assets from the local jurisdiction without an order of the court, or its approval as to the officer who shall act in the holding and distribution of the property recovered. * * *
“ It is urged that jurisdiction in this case is sustained by the case of Great Western Teleg. Co. v. Purdy, 162 U. S., 329; 40 L. Ed. 986; 16 Sup. Ct. Rep., 810, in which it was held that the assets and affairs of an insolvent corporation being in the hands of a receiver, the court might direct the calls or assessments upon delinquent shareholders who had not paid for their shares, thereby using the authority the directors might have exercised before the appointment of the receiver. In that ease, a receiver appointed by the Circuit Court of Cook County, in Illinois, under the direction of that court brought an action in the name of the Great Western Telegraph Company, an Illinois corporation, by its receiver, against Purdy, a citizen of Iowa, to recover a sum alleged to be due from him upon an assessment 'upon his stock subscription, and it was held that the Illinois court might make the assessment and calls necessary to collect the stock which would be binding in another court. The jurisdiction of the Iowa court was not called in question in the state court of Iowa, where the original action was brought,nor was the question of jurisdiction raised in this court', or passed upon in deciding the case. While not detracting from the authority of that case as to the matter decided, we see nothing in it to .indicate that, had the question herein presented been made, it would have been decided otherwise than herein indicated. ’ ’

We think the receiver herein is of the class mentioned in the cases of Booth v. Clark and Great Western Co. v. Harris, supra; and not one vested with the property of the corporation. The petition alleges that plaintiff was duly appointed “with the usual powers of receivers and was ordered to bring suit against the stockholders,”

Smith, Beardsley & Morgan, for plaintiff in error.

Hoyt, Dxistin & Kelley, for defendant in error.

We think the rule laid down by the federal eases cited should be followed and applied in the ease before us, notwithstanding it is 'claimed by counsel for plaintiff that the rule is otherwise in Ohio, by reason of the decision of our own Supreme Court in the case of Bank v. McLeod, 38 O. S., 174.

We are not disposed, however, to apply the doctrine of that ease beyond the special facts stated and limitations, made in its syllabus, which reads as follows:

“In a suit in chancery pending in a Kentucky Court, wherein the trustees of an insolvent railroad corporation sought to enforce their rights under certain mortgages of the road and its equipment, the condition® of which had been broken, an application was made for .the appointment of a receiver to take charge of and operate the road. Pending this application, certain rolling stock covered by the mortgage was temporarily in Ohm, and while here was seized in attachment by an unsecured Kentucky creditor. • The entire property was insufficient to pay the debts secured by the mortgages, or to earn income to pay the interest. The order of the court appointing the receiver, made subsequent to the seizure in attachment, ordered him to take possession of all the property, including that seized, and authorized him to sue in his own name as such receiver, whenever necessary to perform his duties. Held: That the mortgages covered the rolling stock, though temporarily in this state, and the receiver might, under the comity between states, by an action brought in this state in his. -own name, assert his right to the possession thereof, where such right is not in conflict with the rights of our own citizens, nor against the policy of our laws.”

The case of Booth v. Clark was fully considered in the decision of the case and a careful reading of the statement of facts and opinion of the court will disclose the reasons given by the Supreme Court for not following the doctrine of Booth v. Clark in the determination of the case before it.

The common pleas court was not in error in sustaining the demurrer to the third amended petition and its judgment is therefore affirmed.


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    ASSESSMENTS IN EXCESS OF BENEFITS.
    [Circuit Court of Hamilton County.]
    Frank L. Mechlem et al v. City of Cincinnati et al.
    Decided, November 14, 1905.

      Street — Assessment for Improvement of — Benefits—Finding as to, hy the Assessing Board. ■ *
    The fact that a court divides on the question whether property has been specially benefited in the amount of the assessment, does not afford' ground for disturbing the assessment in the absence of some of the'grounds usually invoking equitable intervention.
    Jelke, P. J.; Swing, J., concurs; Giffen, J., dissents.

      ¡A. W. Bruch, for plaintiff.

      Chas, J. Hunt, City Solicitor, contra.
   We said in the case of Benham v. City of Cincinnati, 4 C. C. — N. S., page 36:

“Where, however, the assessing board hias made a finding of benefits and has made the assessment on that basis, such finding and assessment are prima facie correct, and should not lightly be disturbed or inquired into in the absence of allegations of some of the grounds usually invoking equitable intervention.”

In the case at bar, this court is somewhat divided on the question as to whether or not the property has been specially benefited in the amount of the assessment. The very fact that the court can divide on this question, leads a majority of us to hold that the assessment as levied by the assessing board should be sustained. This court does not examine into the question of benefits as a matter of course, and does so only in cases where such inequality between benefits conferred and assessments levied invite equitable intervention. This being so, we are of opinion that the assessment in this case should be allowed to stand.

Judge Giffen dissents for the reason that' the evidence shows no good ground for repaving the street.


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    FORECLOSURE ON HOUSEHOLD GOODS.
    [Circuit Court of Cuyahoga County.]
    The Economy Building & Loan Company v. W. C. Newman.
    Decided, December 1, 1905.

      Necessary Household Goods under Chattel Mortgage Law — Benefits of Section 4155-1 — Not Limited to Married Persons or Heads of Families — Character of Goods not Lost by Temporary Storage — Value of Goods which Have Been Used — Evidence.
    1. The benefits of Section 4155-1 of the Revised Statutes, regulating procedure in the foreclosure of a chattel mortgage on the necessary household goods, wearing apparel and mechanics’ tools of any person or family, are not limited to married persons or heads of families.
    2. Household goods, formerly used by the owner, but temporarily stored by him with the intention of resuming their uso within a reasonable time, do not lose their character as necessary household goods within the purview of Section 4155-1 of, the Revised Statutes.
    3. The value of household goods which have been used is not limited by the market value of such goods as second-hand articles, although such value, if there is one, should be submitted to the jury. The owner should also be permitted to show what he considers them worth, based upon his knowledge of what they cost, the character of the goods, and the uses to which he applied them.
    Winch, J.; Marvin, J., 'and Henry, J., concur.
    Error to the court of common pleas.
   Wití. C. Newman, defendant in error, brought his action against plaintiff in error for damages for the conversion of certain household goods alleged to have been wrongfully taken from -him by said plaintiff in error. The plaintiff below recovered judgment against the defendant' below, and from the bill of exceptions filed with the petition in error in this court, it appears that Newman was the owner of said household goods which he had mortgaged to the loian company. ■ While said chattel mortgage was still in force, with ;a balance due on the note secured by it, Newman’s wife died, he had no children living with or dependent upon him, and he himself being sick,- he stored .staid furniture land went to Dfeitroit Ho recuperate, with the intention, however, of returning and resuming housekeeping, as he states. Newman was gone about six months.; when he returned to Cleveland his deceased wife’s sister accompanied 'him and he married her the day after they arrived' at Cleveland. When he and hi® new wife went to the storage warehouse to get -his furniture, with which they proposed to go to housekeeping, he found that it had been replevied by the loan company in an action prosecuted before a justice of the peace and disposed of by it in satisfaction of the mortgage debt, the conditions of the mortgage having been broken.

Thereupon this .action was brought, the unlawful conversion being baaed upon the loan company’s violation of the provisions of Section 4155-1 of the Revised Statutes, which reads as follows:

“No chattel mortgage on the necessary household goods, Wearing apparel, mechanic’s tools of any person or family, except chattel mortgages given to secure the whole or some part of the purchase price thereof, shall be foreclosed except in a court of record. No such ’ household goods, wearing apparel or mechanic’s tools covered by a chattel mortgage shall be seized or taken out of the possession of the mortgagor before foreclosure, except by a sheriff, or constable, and then only after the mortgagee or his agent has presented an affidavit to a judge of some court of record or justice of the peace, setting forth that the mortgage is due, or that the morgagee is in danger of losing his security, giving the facts upon which he rielies, and after obtaining an order from such judge or justice of the peace directing such sheriff or constable to seize such household goods, wearing apparel or mechanic’s tools and hold them subject to the order of the court,” etc.

The loan company admits that it did not comply with this law, but says that Newman was not1 entitled to the benefits of the law, because at the time the loan company took his goods Newman was a single man with no family ,a:nd the household goods taken, having been stored by him upon his departure from the city, were no longer necessary household goods, as specified -in 'the statute

It will be noticed at -the -outset of this inquiry that the statute under consideration is merely remedial in its nature; it in no wise affects the rights of the parties under the chattel mortgage, but only specifies the form in which and the procedure by which tho-se rights are to- be worked out. Manifestly the statute w-as passed for the protection of those who are so unfortunate as to be compelled to pledge their necessary household goods in -order that they may procure lp-ans from those who have money to lend. The statute, then, should be “liberally construed, in -order to promote its -object.” Section 4984, Revised Statutes -of Ohio.

It -contains no- requirement that only married persons or those wh-o -are heads of families -shall be benefited by it. The language is “person -or family”;’ that includes persons of all descriptions, married -or single, with or without families; -the disjunctive “or” makes -this perfectly clear. No- exemption is provided by this law and a reference to the exemption laws of the state throws no light upon the subject. Indeed, we can see no reason why a single man should not need household furniture as much as a married man. One oan bo-ard as well as the -other, but why emphasize by law the misfortunes of many single persons who are by their circumstances -alone, and n-ot by choice, relegated -to “furnished rooms.” On the other -hand, as suggested by Judge Wile-s, in the ease -of Brown v. Wait, 19 Pick., 470, it is not necessary for even the head of a family to own household -goods -and keep house, and to say that such goods are necessary-, only when one keeps house wo-uld be a very strained construction of the statute.

But it is s-aid that these goods lost their character as necessary household g'-oods when Newman stored them and left the city. The trial judge appreciated ithe force of this- suggestion, but understood that any temporary 'abandonment of the goods to have such effect, must depend up-on the intention of the owner'; so he permitted all facts and circumstances shedding any light upon that intention, -as well as the statement of the -owner with reference -thereto, to go to the jury under a charge which fully covered' the law of the ciase, in which, ampng -other things, he said;

“If you find from the evidence .that the plaintiff stored these goods with the intention of resuming the use of them again for household purposes within a reasonable time in the future, then you should find that the same continued to- be neeeessary household goods, otherwise they would cease to be necessary household goods after he stored' them, and hence would not be within the protection of this statute.”

The jury, under this charge and the evidence, found for the plaintiff, and we are not disposed to disturb its verdict.

Something was said upon argument as to- error in permitting the plaintiff himself to 'testify -as to the value of the goods taken, although it is not urged that the verdict was excessive. It is said that these goods having been used, were secondhand goods' and as such had a value in the market easily ascertainable. The defendant below was permitted to bring such market value before the jury, while the plaintiff stated that he did noit know whether or not there w,ais. any market for the goods and could not give their market value. He was permitted to say that he knew what they cost and what he considered them worth. He may not have shown very clearly that his furniture had a peculiar value to him, but we all know that furniture that we have been accustomed to use and wearing apparel that fits us, has a greater value to us than the price they will bring as second-hand articles. “In such cases it is evident that to refer to- the market as the sole standard of value, may work serious injury to the party complainant.” Jonas v. Noel, 98 Tenn., 440.

The authorities on this subject are collected in a note to the case of Watt v. Nevada Central R. R. Co., 62 Am. St. Rep., 772, 792.

The defendant was permitted to introduce several witnesses who qualified as to their knowledge of the value in the market of second-hand household goods, and they gave their estimates of such market value.

Sedgwick on Damages, Section 243, says:

“The market price is merely one of the commonest tests by which to -ascertain this value. It is by no- means the only one. ’ ’

Foster, Foster & Howells, far plaintiff in error.

B. H. Lee, for defendant in error.

The plaintiff’s evidence together with the defendant’s evidence as to the measure of damages, was ¡all submitted to -the jury, under a charge which seems to us 'eminently fair and expressive of the law on.the subject. Said Judge Lawrence, who tried the case:

“If you find for the plaintiff you will .award to him such damages, not exceeding the sum of $1,042.50, as you may find from the evidence he has sustained. Such damages, if you find for the plaintiff, would be the reasonable value of the goods taken and disposed of by the defendant less the amount of the chattel mortgage held by the -defendant, which is the sum of $123.90.
“If you find that the goods in question had a market value at the time they were sold, that value would govern; but if said goods have no market value then you should find what was the fair and reasonable value to the plaintiff of the goods sold, at the time they were sold, having in view the character of the goods and the purpose to which they were applied 'by the plaintiff. Testimony has been offered by both sides as to the value of these goods. You are not bound to adopt the opinion or estimate of any particular witness' oh this subject. You should consider wh-at has been said by them, but in determining the value, if you come to that question, you should also consider the kind, quality and description of these goods, the uses for which they were adapted 'and were applied and all the facts and circumstances in regard to them ¡as shown by the testimony. As I have said to you, you have nio right to take into- consideration any claim for damages of the kind alleged in that portion of the petition which I excluded from your consideration, to-wit, •the plaintiff’s claim that he was deprived of the use of this property and his alleged humiliation. I say to you, gentlemen, that issue is not in this case -and should not be considered by the jury. If you come to the question of the value of these goods you should deduct the amount of the chattel mortgage, because the interest of the plaintiff in the goods was not absolute but was subject to such mortgage, and the value of his interest in the goods would be the fair and reasonable value thereof less that to which they were subject; that is, this chattel mortgage. ’ ’

We find no error in the case and the judgment is affirmed.


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    COVENANT FOR. A FURTHER ASSURANCE.
    [Circuit Court of Hamilton County.]
    The Globe Soap Company v. Louisville & Nashville Railroad Company.
    Decided, December 16, 1905.

      Lease — Discrepancy in Navies Appearing Therein — No Estoppel in Law Against the Lessor — As to After-Acquired Interest — The Rule in Equity — Covenant for a Further Assurance.

    1. At law, wliere in a lease an interest passes, there is no estoppel on the lessor as to an after-acquired interest.
    2. Equity, however, does not inflexibly follow this rule, and where, as in the case at bar, the parties in addition to the usual lease covenants have contracted specia.ly as to such after-acquired interest, their contract may be treated as a covenant for a further assurance, and the estoppel will be extended to bind such after-acquired interest, particularly as fairness and good conscience seem to require it.
    Jelke, P. J.; Swing, J., and Giefbn, J., concur.
   We are of opinion 'that for thepurpose of the consideration of this case, the Louisville & Nashville Railroad Company must stand in the shoes of Fanny J. Dickson, Caroline T. Jackson and David J. Dickson; that the record was sufficient to put said railroad company on notice as to all that was done in the execution of the lease from Fanny J. Dickson et al to the Globe Soap Company, dated the 26th day of June, 1902; that the error of the recorder in the transcription was plain upon examination of the record, and the least prosecution of the inquiry which would naturally be prompted by the apparent discrepancy between the lessors named in the beginning of the recorded lease and the names signed thereto would have disclosed the truth. We find that the Louisville & Nashville Railroad Company and its privies took title with knowledge of the facts. This brings us to the question as to the effect of this lease instrument upon the interests of Charles F. and Paul R. Dickson. The most satisfactory statement of the law in this regard we find on pages 383-4-5 and 6 of Bigelow on Estoppel, 4th. Edition. The law is well settled that where in a lease, an interest passes, there is no estoppel on the lessor as to an after-acquired interest. This seems to be so, irrespective of any question of intention which might be deduced from the covenants of warranty. The case at bar, however, stands alone and differs from any case cited to us by counsel, or from any that we can find by reference to any of the text-books.

In the case at bar the parties, realizing the insufficiency of the instrument, executed as a binding lease upon the interests of Charles F. and Paul R. Dickson, have undertaken, aside from the usual special warranty contained in the lease, to make an additional contract having the interests of these minors, Charles F. and Paul R. Dickson, particularly in contemplation. Said contract is in words as follows:

“And the said lessors, Fanny J. Dickson, Caroline T. Jackson and David J. Dickson, for themselves, and for their heirs, executors, administrators and assigns, further covenant and agree with said lessee, its successors and assigns, that, they and each of them guarantee the performance of the terms of this lease by Charles T. Dickson and Paid R. Dickson, minor children of Charles T. Dickson, and each of them, and that said minors, and each of them, on arriving at their full age will confirm this lease made by their guardian, and will save harmless and indemnify said lessee, its successors and assigns, against any interference or attempt at interference by said minors, or either of them with the possession of said lessee, its successors or assigns, according to the terms of this lease. ’ ’

This case, as between plaintiff and defendant herein, turns upon the question whether or not at the conclusion of the partition proceedings, after Fanny J. Dickson, Caroline T. Jackson and David J. Dickson had acquired the two-fifths interests of said Charles F. and Paul R. Dickson, specific performance could have been decreed against the said Fanny J. Dickson et al to compel them to execute a further lease making binding upon these after-acquired interests, the terms of the original lease. In all honesty, the original lease should have been duly carried out by further legal assurance. The gravest doubt, however,_ exists as to whether this is as contended by counsel for the Louisvilie & Nashville Railroad Company a mere personal agreement to hold harmless and indemnify and respond in damages, or is it an undertaking of such a nature that specific performance could be decreed upon it. We note in Bigelow, the following sentence:

“It is to be observed, however, that Mr. Preston says that in equity, if the lessors afterwards acquire an interest sufficient to make good the lease he may be compelled to give effect to the instrument by way of a further assurance. ’ ’
“At law no lease, or other assurance, which operates in the first instance, as and by way of conveyance can be used by way of estoppel to bind any estate subsequently acquired, though the lease, or conveyance, does not confer the degree of interest it imports. * *
“But in equity, if a man who has a term for ten years, makes a lease for twenty years; or a person who has an estate for life, or in tail, make a conveyance in fee, and afterwards acquires the fee, he will, if the transaction be founded on a' valuable consideration, be bound by way of further assurance to give effect and confirmation to the original lease or alienation.” — Preston on Abstracts, p. 217.

This expression is consonant with the trend of our opinion. It is in the power of equity to compel the performance of that which parties ought to do and can be fairly held to have contracted to do, or have intended to do, or have led others to believe would be done, when it is in the power of such parties to do the thing, and where recourse for legal indemnity is not plain and may not be fully adequate and satisfactory.

This is an action in chancery, appealing to the conscience of the court. We therefore feel constrained to resolve our serious doubt on this legal proposition in favor of doing that which seems to us right, and which ought to have been done.

We therefore conclude that when Fanny J. Dickson, Caroline T. Jackson and David J. Dickson acquired the interests of the minors, they ought to have assured the terms of this lease to the Globe Soap Company, and we will consider that which ought to have been done for the purposes of this case as done, and looking on it in this light, we feel that this obligation fused into and affected the title of this land and went with it into the hands of the assigns of Fanny J. Dickson, Caroline T. Jackson and David J. Dickson.

Joseph Willy and U. L. Gordon, for plaintiff.

Ellis G. Kinkead, Challen B. Ellis and H. K. Rogers, for defendant. o

However, as wre have said in the beginning, all that controls us in coming to this conclusion, was suggested by the record, and was easily ascertainable upon diligent search by the Louisville & Nashville Railroad Company when they made their purchase.

We therefore find for the plaintiff, and decree may be had accordingly.


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    MARSHALLING OF LIENS AND DISTRIBUTION.
    [Circuit Court of Cuyahoga County.]
    The Dieboldt Brewing Co. v. Walentz Grabski et al.
    Decided, June 26, 1905.

      Judgment Lien — Execution Against Surviving Debtor — Subrogation— Purchase of an Equity of Redemption — Distinguished from Purchase of Land in Fee.

    1. Where judgment is rendered against two, and one dies, execution thereafter issued against both is valid against the survivor, and keeps alive the judgment lien upon the survivor’s lands.
    2. A grantee of land subject to a mortgage, who agrees with'the grantor to pay said mortgage as part of the purchase price, after payment of the mortgage is not entitled to be subrogated to the rights of the mortgagee as against the lien-holders.
    Winch, J.; Marvin, J., and Henry, J., concur.
    Heard on appeal.
   This case was brought to foreclose a mortgage, was heard on appeal and the sole question for the consideration of the court is the determination and marshalling of liens as between the defendants, Loew & Sons and Walentz and Maryanna Grabski,

From the evidence it appears that on November 20, 1897, Loew & Sons recovered a joint judgment in the Common Pleas Court of Cuyahoga County against Maciej Stasiak and Katarzyna Stasiak, his- wife, in the sum of $444.80; at that date the husband was the owner of the premises in question; no execution was issued on said judgment until June 9, 1899, when execution was issued against both said defendants and levied on said lands. At the date of said execution Mrs. Stasiak was dead, although the fact was unknown to the judgment creditor, and the first proposition is, that such fact vitiates said execution and leaves the judgment without valid execution for five year's, whereby said judgment has become dormant and ceased to be a lien upon said lands.

The authorities seem to rule against this proposition.

“Where a judgment is rendered against two, and one dies before the issuance of the execution, the writ for the sake pf conformity should be issued against both the deceased defendant and the survivor, although in law it is an execution against the survivor only, and his goods alone can be levied on.”_8 Enc. of PL & Pr., 422; Freeman on Execution, 936; Martin v. Branck Bank, 50 Am. Dec., 147; 15 Ala., 587; Wade v. Watt, 41 Miss., 248; Harden v. McCame, 53 Mo., 255; Reed v. Garfield, 15 Ill. Apps., 290.

The next proposition involves a consideration of the law of subrogation, under the following facts:

On October 26, 1898, the premises in question were subject to a mortgage for $600 to the Union Building & Loan Company, and on said day Mr. and Mrs. Stasiak united in a quit-clapn deed of said premises to their nephew, Grabski and his wife, in which a consideration of $1,200 was recited as received by the grantors from the grantees, but no money actually passed between the parties. The evidence shows that the property was then worth $1,200.

The following language occurs in the deed:

“The conditions of this deed are such that the said grantees hereby agree to give the said grantors a lease on the above described premises to live there during their natural life, and furthermore the said, grantees hereby agree to furnish the grantors with the necessary food and clothing during their natural life if necessary, and it is agreed by said grantors and said grantees that all assessments and taxes that now and after shall be due or become due shall be paid by said grantees, and if the said grantees shall not perform the above agreement the said d$ed shall be void. ’ ’

Grabski also testified that he agreed with his uncle at the time he delivered the deed, that he would pay the mortgage to the Union Building & Loan Company, and also informed said company that he had so agreed.

Mrs. Stasiak lived in the premises until she died on February 4, 1899; then the -Grabskis moved into the place and Mr. Stasiak continued to live there with them until he died, on October 4, 1900.

Grabski says he didn’t furnish Mrs. Stasiak with any food or clothing, and she didn’t need or ask for any; he furnished part of his uncle’s food, until he died, and paid his funeral expenses. lie also paid the taxes and assessments, -and some time after the death of Mr. Stasiak and before the bringing of this suit, Grabski paid the mortgage referred to. By reason of such payment he claims to be subrogated to all rights under said mortgage and to have a lien on the premises prior to the judgment.

¥e think the facts in this case show that Grabski agreed with his grantor that he would' pay said mortgage as part of the purchase money. If we are right in this conclusion, the transaction was not a purchase of the equity of redemption, subject to the mortgage, but of the land in fee, and the mortgage debt became Grabski’s debt. If it was his own debt and he paid it, the doctrine of subrogation has no application to the case.

The following Ohio eases fully elucidate the law applicable to such situations: Thompson, Admr., v. Thompson, 4 O. S., 333; Brewer v. Maurer, 38 O. S., 543; Emmitt v. Brophy, 42 O. S., 82.

We are therefore of the opinion that the case of Joyce v. Dauntz, 55 O. S., 538, cited by counsel for Grabski, is not in point. That case holds that “subrogation arises by operation 'of law, whenever a mortgage debt is extinguished by one entitled to redeem, other than the mortgagee or person ultimately liable for the mortgage debt. ’ ’

We think Grabski by' his promise to pay the mortgage became ultimately liable therefor and the view we take of the facts of the ease renders- any further consideration of authorities eittjd by counsel unnecessary.

John M. Pindras, for plaintiff in error.

Ilerrich & Hopkins and H. 'DuLaurence, for defendant in error.

Decree may be drawn finding the Loew & Sons’ judgment a lien upon the property and marshalling the liens in their order, as agreed by counsel, with no relief awarded Grabsld under said mortgage which he has paid.