text:
    WHEN RENTS PASS TO THE DEVISEE OF THE LEASED PREMISES.
    Court of Appeals for Trumbull County.
    William H. Loveless v. The Erie Railroad Company et al.
    Decided, February 19, 1914.

      Devise — Where of Lands Under Lease, the Rents Belong to the Devisee —Landlord and Tenant.

    Rent accruing after the death of the testator, under a lease made by him, passes to the devisee of the premises leased, unless otherwise disposed of by the will, and if paid to the executor of the will, he becomes liable to the devisee for money had and received.

      D. J. Hartwell, for plaintiff.

      Washington Hyde, contra.
    Pollock, J.; Metcalfe, J., and Norris, J., concur.
    Heard on appeal.
   Plaintiff claims that he is the owner of about forty-three acres of land in this county; that under a grant made by Edward Moore, the then owner of this land, the Erie Railroad Company-entered upon this land, erected a dam thereon, and are using water therefrom, the railroad company agreeing to pay therefor $100 per annum. Plaintiff claims this money by reason of the devise of this land to him by will of Edward Moore.

The plaintiff brought this action to recover from the railroad company the amount due under this contract after the property vested in him. Ele made Samuel Q. Marsh, executor of the will of Edward Moore, a party defendant with the railroad company.

The defendant railroad company by its answer alleges that it had paid the money claimed by plaintiff to its co-defendant, prior to the beginning of this action.

Samuel Q. Marsh, as executor of Edward Moore, .answered admitting that he had received this money from the railroad company but alleged that both plaintiff and Frances Gleason claimed the money, and .asked that Frances Gleason be made a party defendant.

Frances Gleason answered that she was the residuary legatee in the will of Edward Moore, and claimed the money by reason thereof.

Such proceedings were had that the money in the hands of Samuel Q. Marsh, executor, was paid into court, and the railroad company and Marsh were dismissed from the further proceedings in this ease, leaving the plaintiff and Frances Gleason to contest the right to the money.

In 1903 Edward Moore was the'owner of this forty-three acres 'of land; and prior to that time there had been a co,al mine on adjoining lands, the water from this mine discharging through the entry was collected at the mouth of the entry by the railroad company and piped to its water tank.

After the railroad company had used this water for some time, a new opening near the lands of Moore was made into this mine which changed the course of the water and caused it to flow through this new opening on to the forty-three acre tract owned by Edward Moore.

The railroad company about 1903 then entered into a. verbal contract with Edward Moore by which he granted to the railroad company the right to build a dam on his land, and force the water back through this new opening and cause it to flow through the old opening, and for this right the railroad company agreed to pay Edward Moore one hundred dollars per year.

Moore agreed to embody this verbal agreement in a letter directed to the company, which he afterwards did, and the letter was received by the railroad company. No other agreement was ever made between Moore and the railroad company, and the letter written by Moore was lost prior to the trial of this case in the court below. From the time this contract was made until the bringing of this action, the railroad company continued to use these premises under this contract, and until the death of Edward Moore paid him the contract price, and after his death it continued to pay to his executor.

The amount of money that accrued after the death of Edward Moore is claimed by both the plaintiff and Frances Gleason in this action, under the provisions of the will of Edward Moore. Edward Moore died in March, 1909, leaving a will which was probated. By the third clause of this will he devised this forty-three acres of land to the plaintiff. Frances Gleason is the residuary legatee under the will of Edward Moore, and all the debts and special legacies of the estate have been paid.

The plaintiff cláims that the money paid by the railroad company for the right to occupy the premises devised to him by the will of Edward Moore, and which accrued after the death of Moore, should go to him by reason of this devise; while Frances Gleason claims that the money paid by reason of this grant, whether it accrued after or before the death of Edward Moore, is part of his personal estate and should be collected by his legal representative and distributed to her as residuary legatee.

This brings us to the question whether rent paid as consideration for a grant or lease of real estate made in the life time of the testator, but which accrues after the death of the testator, goes to the devisee of the leased premises, or is an asset of the testator’s estate.

Rent may be defined to be the consideration agreed to be paid by one party for the use and occupancy of the real estate of another. Clark v. Cobb, 121 Cal., 600 (54 Pac., 74); Fish v. Brayman, 21 R. I., 195 (42 Atl., 878).

The right to receive rent by one from another arises by privity of estate rather than by contract. A contract fixes the amount of land, and the terms of payment, and the manner of the use of the estate, but the right to recover the rent depends upon the ownership of the reversion. West Shore Mills Co. v. Edwards, 33 Pac., 987.

A transfer of the reversion, during the term of the lease, carries with it the right to the unearned- rent, and the transferee can prosecute an action for its recovery, unless it is specifically reserved. Watson v. Penn, Guard., 8 N. E., 363; Evans v. Enloe, 36 N. W., 22; 1 Washburn on Real Property, Section 699.

Rent accruing after the death of the testator under a lease made by him belongs to the devisee, unless specially excepted by the terms of the will. American Law of Administration (Woerner), Section 300; Lightner v. Speck, 28 S. E., 326; Anderson v. Richards, 37 S. W., 62.

Rent paid to the grantor under a lease made by him accrued after his conveyance of the real estate, if collected by the grantor can be recovered from him by the grantee as money had .and received.

In the case of Van Wagner v. Van Nostrand, 39 Iowa, 422, the court said:

” Unaccrued rent, under a lease existing at the date of a conveyance of the real estate, passes to the grantee, and he can collect it by .virtue of the grant; and' the grantor has no right to receive rent becoming due after such conveyance; but his liability to the grantee for such rents collected would be for money had and received, and not for a breach of the covenant.”

Rent collected by an administrator or an executor which accrued after the death of the testator is held by him in trust for the heirs of the estate or the devisee, and they can recover from him. 1 Washburn on Real Properly, Section 699; American Law of Administration (Woerner), Section 513.

This grant by Edward Moore was not executed with the formal-ties required by the statute and did not provide the time for which it was to run. For these reasons Mrs. Gleason claims that the grant made by Edward Moore to the railroad company was a mere license to the railroad to go upon his land for the purpose of securing this water, and so long as he permitted it to use the land for this purpose he should be paid $100 per year.

The railroad company took possession of the land under this grant and all its terms were fully carried out and complied with by both the grantor and grantee during the life of Edward Moore. This created a tenancy at will which existed until the death of Edward Moore. It is true that on the death of the lessor the tenancy at will terminated, and it became a tenancy by sufferance. The only change this made in the rights of the parties was that the devisee would have a right to terminate the lease without giving the notice required by a tenancy at will, but his continuance of the lease by acquiescence in the lessor’s possession and demanding the consideration converted it again into a tenancy at will.

But we need not further consider the rights of the devisee and the railroad company, after the vesting of the reversion in these premises in the devisee, for the reason that no change in their relations could inure to the benefit of the estate of Edward Moore.

The devisee would have a right to all the rents which accrued after the death of Edward Moore, whether they arose from the grant made by Moore to the railroad from the new relations created after his death between the devisee and railroad company.

An order may be made directing th& clerk to turn over the money now in the hands of the plaintiff, and a judgment entered against the defendant, Frances Gleason, for the costs.


source: Caselaw Access Project

license: Public Domain

text:
    AS TO THE VALIDITY OF GIFTS INTER. VIVOS.
    Court of Appeals for Columbiana County.
    Zilpha R. Ambler, Administratrix, et al v. J. C. Boone, Administrator.
    Decided, April 9, 1914.

      Gifts — Test as to the Validity of, Where Made Inter Vivos, is Surrender of Dominion — Retention of Dominion Over Money by Talcing Conditional Promissory Notes Upon Which Suit Was Brought by the Administrator.

    1. When money is given intending to make a gift, but at tbe same time tbe donee’s note is taken for tbe amount given payable to donor on demand, and containing therein a stipulation that tbe note was not negotiable and void in tbe bands of any other party, except tbe payee, and in case no demand is made by payee before her death, it shall be considered paid in full and void as against her estate; and providing that the only way demand for payment can be made by payee hereof shall be by leaving this note with the cashier of certain banks with instructions given in person by payee to collect the same, does not make a valid gift inter vivos, where the payee retained possession of the note at her death, but it becomes an asset of her estate.
    2. To constitute a gift inter vivos, there must be an immediate and " irrevocable delivery of the property and a relinquishment of 'all ' dominion over or right to recall the gift.

      Carey & Armstrong, for plaintiffs in error.

      J. C. Boone and C. S. Speaker, contra.
    Pollock, J.; Metcalf, J., and Norris, J., concur.
   The defendant in error brought an action in the court of common pleas of this county against the plaintiff in error on two promissory notes. The first note reads as follows:

“Salem, Ohio, November 23, 1898.
4 4 On demand after date for value received, we promise to pay Frances Ann Phillips, the sum of seventy-seven hundred and fifty ($7,750) dollars without interest.
“This note is not negotiable, and is absolutely void in the hands of any other party than Frances Ann Phillips, ias against the maker thereof. In case no demand is made for the payment of this note by Frances Ann Phillips, the payee herein, before her death, this note shall be considered as paid in' full, and after the death of said Frances Ann Phillips, payee herein, shall be void as against the makers herein or his estate. The only way in which demand for the payment of this note can be made by the payee herein before her death, shall be by leaving this note with the cashier of the First National Bank of Salem, Ohio, or the cashier of the Farmer’s National Bank of Salem, Ohio, with instructions to said cashiers, given in person by said payee herein to collect the same.
“Hannah L. Tolerton,
“Sarah E. Buck,
“Zilpha Roselle Tolerton.”

No payments are endorsed on this note.

The second note is the same as the first mentioned except that it calls for $3,000, with interest at the rate of five per cent, per annum, payable annually. Payment of interest is endorsed on this note up to November 23d, 1903.

One of the makers of these two promissory notes, Hannah L. Tolerton, is the widow of James Tolerton, and the remaining makers are the daughters of James Tolerton. James Tolerton died about December 17th, 1897, leaving a will, and by his will he devised all of his property to his" wife and two daughters— the makers of these promissory notes.

Frances Ann Phillips, the payee of these notes, was a sister of James Tolerton, and she was married to A. H. Phillips in 1866. They continued to live together as husband and wife from that time to the time of her death in November, 1904. At the time of her death she had no children living, nor their direct heirs. Prior to the death of James Tolerton, Mrs. Phillips gave to him the .amount of money represented by these two notes, and took from him two promissory notes exactly like the notes signed by the defendants below.

After the death of James Tolerton, Mrs. Phillips told the defendants below that if they were going to divide up the estate of her brother she wanted live notes, and the present notes were then given by the defendants in lieu of the ones she held given by James Tolerton.

Mrs. Phillips gave this money to her brother intending, unless it should be demanded by her during her lifetime, that it should be a gift to him. About the time that she gave this money to her brother James, she gave something near the same amount to her remaining brother, taking from him notes similar to the ones in suit. She said that she gave this money to her brothers because she wanted her money to remain in the Tolerton family, and did not want any of it to go to her husband. She even sought legal advice whether she could make a will and deprive her husband of all rights in her property. At the time the notes in suit were executed by the defendants below no money was paid to any of them, and the only consideration for the giving of these notes was the release by Mrs. Phillips of her claim against the estate of James Tolerton. The making of these notes was intended by Mrs. Phillips, and the widow and daughter, as a transfer of the gift made to James Tolerton to his widow and daughters, upon the same conditions ¡as he had received the money.

The notes involved in this action, after the death of Mrs. Phillips, were found in her private box in the Farmers’ National Bank in Salem, Ohio, with other private papers belonging to Mrs. Phillips. These notes were in a sealed envelope marked, “H. L. Tolerton.” Mrs. Phillips died while in the city of St. Louis. Before leaving home she had given Mrs. Ambler, one of the defendants below, the key to this private box, and an order on the bank to deliver the box to Mrs. Ambler, with directions to Mrs. Ambler that in case of her death Mrs. Ambler should secure the box and destroy these notes. These directions were not carried out by Mrs. Ambler.

A. H. Phillips, the husband of Mrs. Phillips, had no knowledge during her lifetime that she had given her money to her brothers. Neither had he any knowledge of the notes given by her brothers, or of the notes given by the defendants below to her as evidence of this money. James Tolerton left an estate sufficient to pay all of his indebtedness, including the notes held by Mrs. Phillips referred to above.

A jury was waived in the court below and the case submitted to the court, resulting in a judgment in fai'or of the plaintiff below.

In giving this money to her brother, Mrs. Phillips intended to make a gift to him, unless during her life she should for some reason change her intention and should personally demand the payment of these notes. She was unwilling to part with her property at that time, or to surrender her right to demand its return. The question then arises, did the giving of this money unrevoked by the personal act of Mrs. Phillips prior to her death, make a valid gift, or did the retention by Mrs. Phillips of the right to demand payment destroy the necessary elements of the gift inter vivos, and leave nothing more than the intention to make a gift?

In order to make ,a valid gift inter vivos there must be a voluntary and absolute delivery of the property, and all control and dominion over the property must be relinquished. Phipps v. Hope, 16 O. S., 586, 595; Flanders v. Blandy, 45 O. S., 108, 113; Worthington v. Redkey, 86 O. S., 128.

In the case last cited Justice Davis, in the opinion on page 134, says:

“Whether a gift is inter vivos or caMsa mortis * * * there must be such a distinct .and absolute delivery of the property as to show a relinquishment of all dominion over the property by the donor.”

Of the many cases in other jurisdictions which have affirmed this rule we will only note the following: Dauhispeck v. Biggs, 71 Ind., 255; Richardson v. McNulty, 24 Cal., 139; Walsh Appeal, 122 Pa. St., 177 (15 Atl., 470); Liebe v. Battman, 55 Pac., 179, 180; Lusenbigler v. Gourly, 59 Pa. St., 166 (94 Pa. Amer. Dec., 51) ; Smith, Admr., v. Dorsey, 38 Ind., 541 (10 Amer. St., 118); Calvin v. Free, 71 Pac., 823.

In the opinion in this last case’ on page 825 the court, after quoting the definition of a gift inter vivos as given in the 14 American & Eng. Ene., second edition, 1015, Say:

"This definition implies that the donor must, at the time of making the gift, part with all dominion over it; that he can not make a valid gift of this character and yet retain to himself the right to recall or redirect it. The gift must be absolute and irrevocable.”

Again, in the case of Rodemer v. Rettig, 71 Southwestern, page 869 (Kentucky), which was an action on a note after the death of the payee, containing a provision that the note should become null and void on the death of the payee, it was held that it did not constitute ,a gift inter vivos. Tn the opinion in that case on the same'page the court say:

"It is essential to the validity of a gift inter vivos or causa mortis that there shall be a delivery to the donee, and the property or thing given must immediately pass and be irrevocable by the donor.”

Without doubt, Mrs. Phillips when she gave this money to her brother intended that it should become her brother’s at heir death, and to deprive her husband of his fight to inherit it; but she was unwilling to surrender her personal right to demand and retake possession of this money at any time during her life. From the time she gave the money to her brother, up until the moment of her death, the money which the notes represented w,as her property, and she never relinquished her ownership in it. Her act in giving the money to her brother was nothing more than an attempt to make' a testamentary disposition of her property without following the legal requirements of this state. It did not become a gift during her life' for the reason that she was not willing to, and did not, lose control of'it. While she delivered the money to her brother, yet she retained a right to recall that delivery and retake the property at any time.

But it is urged that she delivered the money to her brother without retaining the right to repossess herself of this money; that all she did was to retain the right to demand and receive the equivalent of what she had given. But we must remember that money is not itself property, but is only a circulating’ medium which represents property. When she retained the right to compel her brother to pay her back .an equal amount of money, she was retaining the right to repossess herself of the thing given, just the same as if she had given a specific article of personal property with the right to demand a return of that property. She gave that which represented property, and received the right to demand the return of that which represented property.

Our attention has been called to the cases of Perrin Ex’s v. Chandler, 17 L. R. A. (New Series), 1239, which was an action by an executor to collect a note, with a forfeiture clause, on the death of the payee, something similar to the notes in this action; and also to the case of Sabrell v. Couch, 55 Ind., page 122, which w,as an action upon a mortgage, after the death of the mortgagee, containing a provision that it was only to be paid when demanded by the mortgagee in person.

In both of these cases it was held that they could not be collected after the death of the payee and mortgagee, but in neither of these cases does the court discuss the proposition as to what is required in order to constitute a valid gift inter vivos; but in these cases the court seems to have overlooked the rule that in order to make a gift not only delivery must be made, but the delivery must be irrevocable, and all control and dominion over the property must be surrendered.

The rule requiring an irrevocable delivery and a surrender of all control over the thing given, in order to make a valid gift inter vivos, has been applied without exception by the Supreme Court of this state whenever that question has been before the court.

In addition to the failure to deliver this money irrevocably, and to surrender the right to retake it, there is the further element of fraud in the act of Mrs. Phillips upon her husband. She gave her property to her brothers in order to keep it in her family, and deprive her husband of his marital rights in it. And in order to better secure the carrying into effect of this intention at her death, she provided for the destruction of the evidence of indebtedness in case of her death while away from home.

The law recognizes the right of the owners of personal property to dispose of it as they think best during their life, even to the making of a bona fide gift of it, providing the gift is not made in expectation of death, and with a view to defeat the husband or wife of their right in the property. Stone v. Stone, 18 Mo., 390; Tucker v. Tucker, 19 Mo., 350; Manikee v. Beard, 85 Ky., 20.

“A conveyance by the husband shortly before his death of all his property, both real and personal, to his children, without any valid consideration and with the intent to defraud his wife of her dower and her share of the personal estate, securing at the same time to himself the possession, use and control of it during his life, is fraudulent against the claims of the wife and will be set aside. Thayer v. Thayer, 14 Ver., 107.

While our own Supreme Court has not passed directly upon this principle, yet in the opinion in the case of Doyle v. Doyle, 50 Ohio St., 345, it is referred to favorably. Courts will not lend their assistance, by relaxing the rules required to make a valid gift, in order to carry into effect the intention to make a gift where the result would be to deprive the husband or wife of their rights in the property of the other.

‘ ‘ Our laws relating to written and nuncupative wills, and our laws of descent, should not be defeated by such gifts unless in a very clear case.” Miller v. Anderson, 43 Ohio St., 473.

But it is urged that even if the giving of this money by Mrs. Phillips to her brother was an attempt to make a gift which has failed, yet the transaction between the defendants below- and Mrs. Phillips was a contract by which she agreed to surrender her claim against the estate of James Tolerton on 'condition that these defendants, who were the beneficiaries under his will, should enter into the agreement evidenced by these two notes.

Without doubt parties could enter into an agreement, for á proper consideration, by which they agreed to pay the amount evidenced by such an instrument, if demanded according to the terms of the instrument, and should not be required to pay under any other conditions; but an examination of the testimony in this case develops the fact that that was not the transaction that these parties were entering into. All Mrs. Phillips was doing, or the defendants were accepting, was a transfer of the intended gift to them that she had previously made to her brother, and on the same terms and conditions that she had attempted to' make it to her brother.

. Mrs. .'Phillips looked upon this transaction as an'intended gift, unless she should desire to use the money otherwise.during her-lifetime, and these people accepted it and made the two notes in this suit with that same object in view;

For these reasons we think they stand in the same relation to this' transaction that James Tolerton would have done had he .outlived his sister.

Our conclusion is that -however clear the intention of Mrs. .Phillips may appear to have been to give the money represented by these notes to her brother, and after his death tó his wife and children, the transaction lacks the necessary -elements to establish a valid gift; The judgment of the common pleas court is affirmed; no penalty. Defendant excepts.


text:
    AS TO EVIDENCE OF THE VALUE OF HOUSEHOLD GOODS DESTROYED BY FIRE.
    Circuit Court of Cuyahoga County.
    The German Fire Insurance Company of Pittsburgh, Pa., v. Duncan Burke.
    Decided, November 27, 1911.
    In an action on a fire insurance policy,.covering household goods, the owner may give his opinion as to the value of his own property and evidence of its cost is some evidence of its actual value.

      C. W. Fuller and L. R. Canfield, for plaintiff in error.

      R. E. McKisson, contra.
    Winch, J.; Marvin, J., and Henry, J., concur.
   In this .action wo are asked to reverse a judgment on a fire insurance policy.

It is claimed that the judgment is not supported by the evidence in that the insured failed to show that he made proper proof, of loss under the terms of the policy and that he failed to show, by any competent evidence, what was the value of the goods destroyed.

The company had immediate notice of loss and sent a man the same day to investigate it; the insured appears to have gone to the office of the state fire marshal, and testifies that he there made proof of loss, swore to it and delivered the same to the .man who came to inspect the loss. The agent- of the company says he never received this. Notification of loss and list of goods destroyed and their value was made out by counsel for the insured, and mailed to a soliciting agent of the company. While at first denying receipt of these letters, the original turned up at the trial in the hands of the proper .agent. The clerk of insured’s counsel testifies that the list was sworn to by the insured, as he does himself. The company fails to produce this sworn statement, but does produce the list, without affidavit attached.

On a careful reading of the evidence, we think the jury might well have found, as it did, that the insured furnished proof of loss as required by the policy.

And the only evidence as to value of the goods destroyed was given by the insured and his wife and one Fay, a mover, whose testimony was objected to. Fay was qualified by the cross-examination of the company.

An owner can .always give his opinion as to the value of his own property. This the insured did, giving the cost of the various items destroyed. The wife testified to the same. This was some evidence of the actual value of the goods. These witnesses could have been cross-examined as, to how long the insured had owned them and their condition, showing wear and tear, etc. The company could have introduced other evidence tending to show .a lower value to the goods, due to depreciation. This it did not choose to do.

The evidence seems to fully sustain the verdict, and finding no prejudicial error in the record, we are able to certify, as required by law, that substantial justice was done, by the complaining party.

Judgment affirmed.


text:
    CONSTRUCTION OF THE SAFEGUARDING OF MACHINERY STATUTE.
    Circuit Court of Cuyahoga County.
    Pietro Spano v. The Brookside Brick Company.

    Decided, November 27, 1911.

      ■ Employers’ Liability Act — Common Law and Statutory Cause of Action May be Joined — Section 1027, General Code.

    1. In Section 4364-89e, Revised Statutes, which provides for the enclosure, with substantial railing, of all openings through floors, through, or in which wheels or belts may operate, the words “other kind of machinery,” means “other machinery of the wheel kind.”
    2. The common law and statutory cause of action for damages resulting from the negligence of an employer may both be set up and joined in the same petition.

      H. F. Payer, D. B. Nicola and Ulmer & Bernstein for plaintiff in error.

      Russell & Eichelberger, contra.
    Winci-i, J.; Marvin, J., and Henry, J., concur.

      Affirmed without opinion, Brookside Brick Co. v. Spano, 87 Ohio State, 515.

   This was a personal injury damage case, with verdict'directed for the defendant, at the dose of plaintiff’s evidence.

Counsel for plaintiff states the facts of his ease as follows:

“The pláintiff was employed by the defendant in its brick plant located near Brookside Park in the city of Cleveland.' The room to which the clay is brought for the purpose of being made into brick is about 20 feet long and 11 feet wide, in the floor of which are two openings .about 9 feet apart. These openings are near a track running the length of the room and raised about two and one-half feet above the floor of the room, over which track the cars of clay are drawn by cable. In the operation of the said plant, when the cars reach one or the other opening in the floor the clay is dumped into said opening and on the surrounding floor space.
“These openings are about iy2 feet wide and 2 feet long in which, about 9 or 10 inches below the surface, are two wheels. One of these wheels is about 9 inches and the other is about 18 inches in diameter, the said wheels being close together underneath said opening. The nearest point of one wheel to the other directly under said opening is 18 inches below the level of the floor. The smaller wheel has teeth running its full length, which teeth or knives are 5 or 6 in number and are one inch in thickness and one inch in height. In the operation of said plant the wheels rotated rapidly in opposite directions and the teeth of one wheel would catch the clay as it was thrown down on top of them and cause the%.sanie to be crushed and pushed between the two wheels and down below where it was conveyed to other parts of the plant.
“In the operation of said plant, one workman would work at one ópening and the other at a second opening, and it was at one of these openings that the plaintiff worked when he was injured. The evidence showed that in the operation of said plant and on the day that the plaintiff was injured, the room was full of clay and as the clay went down into the opening, it left a funnel-shaped opening above the floor; that the plaintiff, who had gone to work at this place two days before the injury happened, had been merely told to shove dirt in the. opening; that he first cleaned some of the dirt around the edge of the opening and then was standing by the edge of said opening pulling the dirt into it, when he reached for a pick about a foot and a half from him. As he did so he slipped and his leg went into the opening, was drawn between said wheels and crushed, necessitating amputation about 5 inches from the hip. There was no railing-or anything else over or around the opening wherein the plaintiff was injured.”

Manifestly no case was made under the common law rule of assumed risk. Plaintiff claims, however, that he made a case under the statute, then Revised Statutes, Section 4364-89c. which abolishes the rule of assumed risk as to factories and workshops, and limits the recovery to $3,000.

The .part of that statute which requires construction here reads as follows:

“Owners and operators of factories and work shops, which terms shall mean all manufacturing, mechanical, electrical and mercantile establishments, and all places where machinery of any kind is used and operated, shall take ordinary care and make such suitable provisions as to prevent injury to persons wbo. may come in contact with any such machinery or any part thereof; and such ordinary care and such suitable provisions shall include the enclosure of all exposed cog.-wheels, fly-wheels, hand-wheels, all main belts transmitting power from engine to dynamo, or other kind of machinery, and all openings through floors, through, or in which such wheels or belts may operate, with substantial railings.”

We do not think, as claimed by plaintiff, that the machinery in question can be called cog-wheels, but we are of opinion that it comes under the class of “other kind of machinery,” as used in the statute. That phrase, used after the words “cog-wheels, fly-wheels, band-wheels,” means “other machinery of the wheel kind. ’ ’ This was machinery of the wheel kind; the statute provides for the enclosure of all openings through floors, through or in which such wheels may operate, with substantial railing; there was no such substantial railing around the opening in the floor in which the wheels were operating which injured plaintiff; it is apparent from the record that there could and should have been such railing in this case, and that if it had been there, Spano would not have been hurt.

The statute was violated and therefore Spano was entitled to recover under it, not exceeding $3,000. He prayed for a judgment in the sum of $10,000, which would indicate that he also hoped to recover under the common law.

If the petition is to be held as an attempt to join the common law and the statutory causes of action, we see no objection thereto. Labatt, in his work on Master and Servant, at Section 734, says that such joinder is customary in England, and has never been questioned in Massachusetts and -Alabama, jurisdictions where they have had the statutory action longer than we have had it in Ohio.

For error in directing ,a verdict for the defendant, the judgment is reversed and the cause remanded for a new trial.


text:
    WANT OF PROBABLE CAUSE FOR. PROCURING ARREST.
    Court of Appeals for Pickaway County.
    Frank S. Jennings v. Charles Shepherd.
    Decided, May 28, 1914.

      Malicious Prosecution — Discharge of Accused by Examining Magistrate Prima Facie Evidence of Want of Probable Cause.

    In a suit for malicious prosecution, proof that the defendant filed an affidavit, in a'mayor’s court, charging the plaintiff with forgery and that, in consequence, he was arrested and imprisoned, and that, on the preliminary hearing, after witnesses were sworn and . examined he was discharged, is prima facie evidence of want of probable cause
    Error to the Court of Common Pleas of Pickaway County.
    Plaintiff in error, defendant in the court of common pleas, filed an affidavit, in the mayor’s court of Circleville, charging Shepherd with forgery.
    The defendant in error was arrested and imprisoned, and after a trial by the mayor, in which witnesses for the state and defendant were examined, he was discharged. He thereupon brought this action for malicious prosecution and recovered a judgment for $400.

      C. A. Leist and G. G. Adkins, for plaintiff in error.

      George W. Morrison and Charles Gerhardt, contra.
    Sayre, J.; Walters, J., and Jones, J., concur.
   The trial court charged the jury as follows:

“The fact that the mayor discharged the plaintiff bcause he did not find him guilty of the charge on which he was arrested is prima facie evidence that said criminal prosecution and arrest was without probable cause, but it is not conclusive evidence thereof. By prima facie evidenee.it is meant such evidence as creates’ a presumption that these facts are established by it in the absence of any evidence to the contrary. In other words, it is a sufficient way to establish the disputed facts until they are rebutted or overcome by evidence to the contrary.”

It is contended on behalf of plaintiff in error that proof of a discharge by an examining magistrate is not prima facie evidence of want of probable cause and that the question has been decided by the case of John v. Bridgman, 27 O. S., 22-39. But it will be seen that the statement of Judge Whitman, who wrote the opinion in that ease, is an obiter dictum, because when he used the language that “the mere fact of acquittal and discharge by 'the magistrate was not enough” to show want of probable cause, he was discussing the question as to whether the plaintiff in the suit for malicious prosecution could show that no evidence was offered, before the magistrate, by the complainant to establish the charge contained in the affidavit. The question as to whether -such discharge is prima facie evidence of want of probable cause was not one of the assignments of error and did not arise in the case.

Section 13511 provides:

‘1 When the accused is brought before the magistrate and there is no plea of guilty, he shall inquire into the complaint in the presence of said accused. If it appear that an offense has been committed and that there is probable cause to believe the accused guilty he shall order him to enter into a recognizance * * * otherwise he shall discharge him.” * * *

By virtue of Section 4542 the mayor of Circleville had the jurisdiction conferred in Section 13511 on a charge of forgery.

Hence, the question inquired into, by the magistrate, and the one he had authority to determine, was the one as to probable cause, and a finding was made that there was no probable cause to believe that Shepherd was guilty of the crime of forgery.

Was this finding prima facie evidence of a want of probable cause in this case?

The decisions of courts of last resort on this question are not in harmony. The following is a partial list of those holding that the discharge, by the magistrate, on a preliminary hearing, is prima facie evidence of the want of probable cause: Stubbs v. Mulholland et al (Mo.), 67 S. W., 650, 658; Jones v Finch (Vir.), 4 S. E., 342; Brown v. Vittur (Lou. Ann.), 17 So., 193; Ross v. Hixon, 46 Kan., 550 (26 Am. St., 123) ; Smith v. Clarke (Utah), 106 Pac., 653; Frost v. Holland, 75 Me., 108; Munns v. Dupont et al, 1 Am. Lead Cases, 184; Johnson v. Chambers, 32 N. C., 287; Vinal v. Core, etc., 18 W. Va., 42; Eggett v. Allen (Wis.), 96 N. W., 803; Barlight v. Tammany, 158 Pa., 545; 28 Atl., 135 (38 Am. St., 853).

The case of Davis v. McMillan (Mich.), 105 N. W., 862, reviews a number of decisions on the subject and especially those holding that the discharge by the magistrate is not prima facie evidence of the want of probable cause, and among them is the ease of Israel v. Brooke, 23 Ill., 577, in which the writer of the opinion undertakes to state the reasons for holding that ,a discharge, by the magistrate, is not prima facie evidence of the want of probable cause, thus:

“ * * * How many justices are there in obscure localities who are as little capable of determining what is probable cause for a criminal prosecution as they are. of explaining any of the phenomenon of nature? How many do we find prejudiced against a public accuser, how many in sympathy with the accused? The decisions of such an official on intricate questions of law or fact should not weigh against the accused and they do not practically; for, if he is committed, the grand jury pay no attention to the finding of the magistrate. It is not p>rima facie evidence of his guilt, and how preposterous it is to say the discharge of a criminal is prima fapie evidence of want of probable cause. It is not so and should never be so regarded! ”

This line of reasoning, which is quoted in Davis v. McMillan, supra, with approval, leads to an entirely erroneous conclusion.

Public officers are presumed to do their duty and their acts are presumed to be regular. While courts .of general jurisdiction and of review may not indulge these presumptions in all respects as to courts of inferior and limited jurisdiction, yet they will presume that magistrates have intelligence enough to pass upon the questions which they are required to pass upon and that they do act honestly. Where a court of limited and inferior powers has acquired jurisdiction, its acts are presumed to have been rightly and honestly done. The fact that some magistrates may be ignorant and liable to be prejudiced does not overthrow the presumption. When a public officer, charged with the duty of determining a controversy, per-. forms that duty the inference naturally and logically arises that Ms determination was .just. Hence, since magistrates in our state are charged with the duty of determining the question of probable cause in criminal cases, such determination, in the absence of .any other evidence, ought to be and is prima facie evidence of the fact determined. But this is true only when such magistrate has held a preliminary trial and has heard the evidence produced, because only then can he pass upon the question of probable cause.

The charge of the trial court in this respect was not erroneous.


author: By the Court

text:
    NO APPEAL FROM THE SUPERIOR COURT.
    Court of Appeals for Hamilton County.
    The Postal Life Insurance Co. v. Horace W. Harmeyer et al.

    Decided, March 14, 1914.
    There is no right of appeal from the Superior Court of Cincinnati to the Circuit Court-of Appeals.

      Frank H. Kunkel, for motion to dismiss appeal.

      Thos. L. Michie, contra.

      For opinion below, see Postal Life Insurance Co. v. Harmeyer, 15 N.P. (N.S.),476, and opinion following.

   By the Court

(Swing, .0. B. Jones and E. H. Jones, JJ.)

It was held in the case of Thompson, Adm’r, v. Gest St. B. A., 13 C. C., 250, that as the law then was there was there was no right of appeal from the Superior Court of Cincinnati to the circuit court. There has been no change in the law, organic or otherwise, since the decision in that case, affecting the question.

The motion to dismiss the appeal is sustained. Case above cited followed and approved.


text:
    CONSTRUCTION OF THE STATUTE SAVING A CAUSE IN CASE OF REVERSAL.
    Circuit Court of Cuyahoga County.
    Pasquale Piscopo, Administrator, v. The New York, Chicago & St. Louis Railway Company.
    Decided, November 27, 1911.

      Wrongful Death — ^Failure Otherwise than on Merits — Ambiguous Phrases in Petition — Admissions in Reviewing Court'.

    1. Under Section 11233, General Code, if a plaintiff in an action for wrongful death fails otherwise than upon the merits, he may commence another action upon the same cause of action within one year thereafter.
    2 When the statements in a petition are ambiguous as to whether a former action was dismissed by the plaintiff or by the court, without prejudice, admissions in brief and oral argument made in a reviewing court that the dismissal was voluntary, will preclude said reviewing court from reversing a judgment on demurrer based upon such meaning of the ambiguous words.

      J. V. Zottarelli, for plaintiff in error.

      John H. Clark, contra.
    Winch, J.; Marvin, J., and Henry, J., concur.
   Counsel for plaintiff in error gives the history of this case as follows:

“Umberto Giordano, deceased, was run over and' instantly killed by the defendant on or about the 28th day of April, A. D. 1907. The plaintiff in error herein was duly appointed and qualified as administrator of said estate and filed against defendant in error, on the 6th day of December, A. D. 1907, his petition in the court of common pleas, said cause being known as No. 115577. Said action was duly dismissed by said plaintiff in error in■ open court upon the ground that the petition did not state sufficient material averment to ‘ constitute a cause of-action. On the 21st day of September, A. D. 1909, said plaintiff in error ivas allowed to dismiss said action without prejudice to a further action. That a petition by the same plaintiff in error against the same defendant in error, in the same cause of action was filed on the 28th day of October, A. D. 1909, within less than a year from the time of the dismissal of said action. On September 26th, A. D. 1911, the demurrer of defendant in error was sustained, and judgment rendered in favor of defendant in error. On October 7th, 1911, plaintiff in error filed his petition in error in the circuit court.”

The demurrer was upon the ground “that the cause of action, if any is stated, is barred by the laws of Ohio.”

When the present action was begun, more than two years had elapsed after the death of plaintiff’s intestate, and so his right of action was gone unless saved under General Code, Section 11233, formerly Revised Statutes, Section 491, and ciriginally Section 23 of the Code of Civil Procedure, which provides that if the plaintiff fails otherwise than upon the merits of an action commenced by him, and the time limit for the commencement of such action at the date of failure has expired, the plaintiff may commence a new action within one year after such date.

In answer to this, counsel for the railroad company cites a dictum of the Supreme Court, found in the case of Railroad Co. v. Fulton, Admr., 59 Ohio State, 575, 577, as follows:

“Much can be said in favor of the proposition that the provisions of Section 4991, Revised Statutes (G. C., 11233), do not apply to a case of this hind. For whilst it may be admitted that the plaintiff failed in the circuit court otherwise than on the merits, still there is much reason and authority for saying that the limitation of two years, fixed for bringing an .action for causing death by wrongful act, is a part of the right of action itself, and not merely a limitation of the remedy, and that the action can not therefore in any case be brought after the time limit has expired.”

•As sustaining this doctrine, the court cites Railway Co. v. Hine, 25 Ohio State, 629, 634, and says: “as apparently contra, see Meisse v. McCoy, Admr., 17 Ohio State, 225, though the point was not there made. But as we do not dispose of the case on this ground, no further consideration will be given it.”

What is now Section 11233 was not before the court in the Hine case; it was before the court in the McCoy case, and said ease is in point and applicable here, unless what is said in the Fulton case discredits the authority of the McCoy case.

Later, however, we find the Supreme Court speaking of the McCoy case with favor. On page 35 of the opinion in the case of Railway Co. v. Bemis, 64 Ohio State, 26, Judge Spear says:

“That the code generally is to be liberally construed to pro-' mote the ends of justice, and that Section 4991 (now G. C. 11233), is entitled to the same liberal treatment, see Meisse v. McCoy, 17 Ohio State, 225,” and other cases cited.

We therefore conclude that Section 11233 authorized the plaintiff to bring this action within a year after the dismissal of his former action, unless, for some other reason, he.is forbidden the advantage of said section.

In the case of Siegfried v. Railroad Co., 50 Ohio State, 294, it was held:

“Where an action which has been commenced in due time, is dismissed by the plaintiff after the time limited for the commencement of such action has expired, a new action for the same cause, thereafter commenced, is barred, though commenced within one year after the dismissal of the former action. Such dismissal is not a failure in the action, within the purview of Section 4991 of the Revised Statutes. ” (Now G. C., 11233.)

The petition in this case is equivocal. It says that “said action was on the 21st day of September, A. D. 1909, dismissed without prejudice to further action.” Whether it was dismissed by the court or by the plaintiff is uncertain. If' by the court, it would be a failure in the action, within the purview of General Code 11233; if by the plaintiff, it would come under the rule laid down in the Siegfried ease.

Were it not for the brief of counsel from which we quoted the history of the case and which solemnly states that “said action was duly dismissed by plaintiff in error in open court,” we would apply the rule laid down in Loudenbeclw. Collins, 4 Ohio State, 251, and presume that the action was dismissed by the court.

Not only does plaintiff’s brief in this court show that he himself dismissed said action, but his counsel made the same admission orally,^and it appears that, from briefs in the files and from his .admissions in open court, the same statement was made to the court below when it passed upon the demurrer.

The court below, having sustained the demurrer to the petition, should have dismissed the petition, not alone on that ground, but upon the statement of counsel that he had voluntarily dismissed the former petition, .and so was barred from filing a new petition because of the ruling in the Siegfried case.

We find no good reason for reversing the judgment herein on the equivocal language of the petition. Counsel has furnished an interpretation of that language, both to the court below and to this court, upon which he must stand. Interpreting it as meaning what he says it means, there was no error in sustaining the demurrer to it, and the judgment therein is affirmed.


text:
    APPEAL TO THE COMMON PLEAS IN A CASE INVOLVING EQUITABLE JURISDICTION.
    Circuit Court of Cuyahoga County.
    L. S. Bing and Sol R. Bing, Partners, v. The B. & O. R. R. Co.
    Decided, January 22, 1912.

      Appeal from Justice — Now Cause -of Action — Waiver of Objection.

    1. A justice of the peace having no equitable jurisdiction and plaintiff requiring equitable relief in the reformation of a bill of lading before he can recover, on appeal to the common pleas court, though it would have had jurisdiction of the case had it been brought there originally, that court can not entertain jurisdiction unless the parties consent thereto, or waive said objection.
    2. A motion by defendant in such an appealed case that the plaintiff .be required to separately state and number his causes of action, is an entry of appearance by the defendant, and waives objection to the jurisdiction of the court.

      Max P. Goodman, for plaintiff in error.

      J. M. and Charles Lessick, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.
   Plaintiffs in error brought suit against the railroad company before a justice of the peace for damages for breach of contract to safely carry goods shipped by plaintiff in care of the railroad company.

Judgment being for the plaintiffs, an appeal to the common pleas court was taken by the defendant, and there it became necessary for the plaintiffs to ask that the bill of lading, or contract between the parties, be reformed so- as to show that the plaintiffs were the real consignors of the goods, it reading by mistake, or inadvertance, in the name of some other person.

Not being satisfied with the form of plaintiff’s.amended petition, the defendant filed a motion to require the plaintiff to separately state ahd number his causes of action, which motion was granted, and plaintiffs complied with the order of the court, filing another amended petition setting up in one cause of action facts showing that the bill of lading did not express the real contract between the parties and asking its reformation, and another cause of action setting out the facts as to the shipment of the goods, payment of charges and damages to the goods in transit.

This amended petition, was stricken off on motion of the defendant on the ground that it set up a different cause of action from that sued upon before the justice of the' peace, and one of which the justice did not have jurisdiction.

A justice having no equitable jurisdiction, and the plaintiffs requiring equitable relief in the reformation of the bill of lading before they could recover, the common pleas court, though it would have had jurisdiction of the case had it been brought there originally, could not entertain jurisdiction of the case on appeal, unless the parties consented thereto or waived said objection.

This we think 'they did, the plaintiffs by filing their petitions in the common pleas court, and the defendant by filing its motion to separately state and number, as will appear from an examination of two eases cited by counsel. •

On the case of O’Neal v. Blessing, 34 O. S., 33, the plaintiff had brought suit for damages by trespass to. real estate, beyond the jurisdiction of the justice, and the Supreme Court held that the common pleas court could not take appellate jurisdiction of the action, but that where an appeal was attempted and the plaintiff filed a petition ,and the defendant, without objecting to the jurisdiction, by motion obtained an order of the court requiring the plaintiff to amend his petition and then demurred to the petition as amended, the defendant thereby entered his appearance as in an original action in the court of common pleas.

It is interesting to read what the court says on the subject on pages 36 and 37 of the opinion, for there it appears that the case turned upon the question whether or not the common pleas court had obtained jurisdiction of the persons of the parties, not of the subject-matter:

“The subject-matter of the action was one over -which the court of common pleas had original jurisdiction; and the parties, either by express consent, or by acts which the law regards as equivalent thereto, could submit themselves personally to its jurisdiction. The question is: Did the parties by their acts give the court of common pleas complete original jurisdiction of the action? We think they did. The filing of his petition in the action, by plaintiff, was an act that was subject to no equivocal construction. It was an appearance on his part. To this petition, and also an amended petition filed by leave of the court, the defendant interposed motions raising questions as to the sufficiency of the petitions respectively. * * *
“By the filing of these petitions respectively, and invoking the rulings of the court thereon, the defendant impliedly waived the issuing ,and service of process, and submitted his person to the jurisdiction of the court in the action. It was, in legal effect, precisely as if the plaintiff had filed his petition and the defendant had expressly waived process and filed his answer.
“The papers on file in the attempted appeal had no force or validity for any purpose, and were, therefore, properly stricken from the files:”

In other words, the service made in the justice court does not hold over and bring the parties, by the appeal, into the common pleas court, as it does in appealable actions, but, if the latter court has original jurisdiction of the subject-matter, and service is there had upon the parties, or is waived by them, its jurisdiction is as complete as if there had been no attempt to sue first before a justice of the peace.

In the case of Long v. Nexohouse, 57 O. S., 348, it was held:

“In order to enable a defendant to object to the jurisdiction of the court over his person, the objection must be made at the earliest opportunity of the party. If before making such objection, the party appears and makes a motion that the plaintiff be required to attach an account of the items of his claim to his petition, or, that he be required to separately state and number his causes of action, or, .that he be required to strike certain matter from his petition, in either of these cases, the party voluntarily submits himself to the jurisdiction of the court, and he can not afterwards be heard to object thereto.”

In the light of these cases it seems that the common pleas court’s jurisdiction was completed by the defendant’s filing its motion-requiring the plaintiffs to .separately state and number their causes of action, and it was error for the court to thereafter strike the amended petition from the files.

The fact that this was done twice for the same reason, both as to the second amended petition and the third amended petition, makes no difference; the doctrine of res ad judicata does not apply to various steps in the same action. The trial judge who struck the third amended petition from the files was not bound to do so simply because it was identical with the second amended petition, which another judge of the same court had stricken off, if the first judge had erred in" his ruling. Of course, courtesy between co-ordinate judges and deference as to each other’s opinions lead to such results, but there is no law requiring such rulings.

For error in striking the third amended petition from the files, the judgment is reversed and the cause remanded for further proceedings.


text:
    ACTION FOR. DAMAGES FOR. THE BRINGING OF A SUIT IN MANDAMUS.
    Circuit Court of Cuyahoga County.
    Charles Brenner v. F. V. Faulhaber et al.
    Decided, January 22, 1912.

      Mandamus — Judgment Conclusive as to What — Malicious Prosecution of Writ.

    1. A judgment awarding a writ of mandamus is conclusive, in collateral proceedings, as to the truth of the facts stated in the application therefor and of the authority of the attorneys representing the applicants for such writ.
    2. An action will not lie for maliciously and without probable cause suing out a writ of mandamus, so long as judgment awarding the writ stands unreversed.

      Geo. A. Grooi and H. Preusser, for plaintiff in error.

      M. P. Mooney, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.
   This was an action brought by Brenner, who ivas a justice of the peace, to recover damages from the defendants growing out of their causing ninety-seven proceedings in mandamus to be brought against him, to require him,- as such justice, to accept appeal bonds in ninety-seven cases brought before him in which he had rendered judgments in favor of one S. A. G-rossner.

Objection by the defendants to the introduction of any evidence under the petition was sustained by the trial court, and the question for review here is whether or not the-petition shows a cause of action.

It sets forth that judgment in all the mandamus cases was .against the plaintiff and, so far as appears, said judgments are still in force and unreversed.

The plaintiff says that the defendants were not the plaintiffs in said mandamus proceedings, and were not authorized to represent the plaintiffs therein, but “maliciously conspiring to injure plaintiff in his good name and reputation and for the purpose of causing it to be believed that plaintiff was guilty of malfeasance in his said office as justice of the peace, intending to harass and oppress the plaintiff, falsely.and maliciously and without probable cause therefor, caused” said mandamus proceedings to be brought, "using the names of others as plaintiffs therein.”

The petition then sets forth the allegations of the applications in mandamus and says that the statements therein contained were false in fact; that one of the defendants, as attorney for the respective plaintiffs, swore to the truth of the allegations in the applications.

It is further alleged that upon these applications in mandamus the defendants induced the common pleas court to issue peremptory writs of mandamus against the plaintiff, without notice to him, and that he was never served with any notice or process to appear or return and .answer said writs. Judgment for costs was also rendered in each of said cases against the plaintiff.

So long as the judgments in the mandamus case stand unreversed, there appears to exist no cause of action against the defendants. . ’.

The judgments in said actions are conclusive as to the truth of the facts stated in the applications therefor. They are conclusive as to the authority of the defendants to represent the plaintiffs therein.

The question of service in said proceedings upon the plaintiff is hot open to question in this collateral proceeding, and, in any event, the court had a right to grant a peremptory writ without notice. General Code, Section 12288.

It does not appear that judgment for costs in said cases was rendered without notice to plaintiff,'nor do we find any allegation that defendants in .any way prevented plaintiff from having a review of said judgments.

The petition herein does not warrant recovery for the malicious prosecution of a civil action, for there was not any arrest of the person or seizure of property, nor did the proceedings terminate favorably to the plaintiff.

The case of Pope v. Pollock, 46 O. S., 367, has been cited as sustaining plaintiff’s petition. Tt holds that an action may be maintained for maliciously, and without probable cause instituting and prosecuting an action in forcible entry and detainer. The extraordinary character of: that action is set forth, and the decision seems to be bottomed upon the proposition that one action in forcible entry and detainer is not a bar to subsequent actions. It further appears in the ease that the plaintiff had prevailed in the forcible entry and detainer case. Here he lost out in the mandamus proceedings.

The provisions of Section 12848, providing that any attorney 0]' counselor at law, who encourages, incites, or stirs up a suit, quarrel or controversy between two or more persons with intent to injure any of such persons, shall be fined not more than $500, is for the protection of society, but it does not lessen the elements required by the law to be established in making out a case for the malicious prosecution of a civil action, nor does it make any difference that the same attorneys brought ninety-seven suits against the plaintiff, each for different persons, in all of which it appears that plaintiff was justly ordered to do a duty enjoined upon him by statute.

Judgment affirmed.


text:
    INTEREST OF ASSIGNEE OF AN INSURANCE POLICY.
    Court of Appeals for Hamilton County.
    Horace W. Harmeyer v. The Postal Life Insurance Co.

    Decided, April 10, 1914.

      Life Insurance — Determination as to the Interest of an Assignee in a .Policy of Insurance.

    Under the assignment of a life insurance policy, set out in the opinion, the assignee is entitled to recover out of the proceeds only the amount of his insurable interest.

      Charles C. Kearns and Thos. L. Miohie, for plaintiff in error.

      Frank E. Kunkel, contra.
    Swing, J.; O. B. Jones, J., and E. H. Jones, J., concur.

      Affirming Postal Life, Insurance Co. v. Harmeyer, 15 N.P.(N.S.), 476; see also opinion on page 297; writ of certiorari applied for and refused by the Supreme. Court June 9, 1914.

   This is an action in this court on error to the judgment of the Superior Court of Cincinnati. The action arose out of a policy of insurance issued by the Postal Life Insurance Company on the life of Adolph Schmidt. The life insurance company filed its petition in said court setting forth the policy and stating the amount due on the policy and brought the money into court making Carrie Schmidt, administratrix of Adolph Schmidt, deceased, and Horace W. Harmeyer defendants, alleging that both parties claim the proceeds of said policy.

Plarmeyer and Schmidt both filed answers, each claiming to be entitled to the proceeds of said policy, excepting from it the amount paid by said Harmeyer, which was admitted by Mrs. Schmidt as being due to said Harmeyer, having been paid by him on said policy during its continuance.

Plaintiff below'pleads that Schmidt took out a policy for $5,000 on his life, in the Provident Savings Life Assurance Society of New York on the 27th day of April, 1896, and that he continued to pay the annual premiums on same until the 22d day of April, 1911, when he assigned said policy to Horace W. Harmeyer. The assignment is as follows:

“For value received I hereby assign and transfer unto Horace W. Harmeyer, No. 519 Main street, Room 208, Lincoln Inn Court, in the city of Cincinnati, state of Ohio, Policy of Insurance No. 76,203 issued by the Provident Savings Life Assurance Society of New York upon the life of Adolph F. Sehmidt of Cincinnati, Ohio, and duly reinsured in the Postal Life Insurance Company, all dividends, benefits and advantages to be had or derived therefrom, subject to the conditions of the said policy and to the rules and regulations of the company, and subject and subordinate to any indebtedness to the company.
“ It is expressly agreed that before any payment shall be made by virtue of this’ assignment, satisfactory proofs of the insurable interest of the assigned shall be furnished to the company, and the company shall not be liable for any sum in excess of such insurable interest.
“Witness my hand and seal, at Cincinnati, Ohio, this 22nd day of April, 1911.
“(Signed) Adolph F. Schmidt.”

The policy contained this provision:

“Any assignment of' this policy must be in writing, and a duplicate- thereof must be furnished the society. Any claim arising under an assignment shall be subject to satisfactory .proof of insurable interest existing at the death of the insured or at the date of such claim, if prior thereto, and the society shall be liable to the assignee to the extent of that interest only; but the society will not assume any responsibility for the validity of an assignment.”

On the back of the policy there was also written, at. the same dime, the following:

“Cincinnati, 0., April 22d, 1911.
‘ ‘ The consideration for which this agreement was made, having been fully paid and satisfied, I hereby relinquish all right, title and interest in Policy No. 76,203, on the life of Adolph F. Schmidt (and my estate as beneficiary) of Cincinnati, Ohio, as provided by this agreement. That said Horace W. Harmeyer, his heirs, assigns, becomes the beneficiary under said policy No. 76,203.
“Witness my hand and seal on the day and date above mentioned.
“Adolph F. Schmidt, Assignee.
“Signed in the presence of Ediuard L. Heckel, Witness.”

It being a printed form, with that part which is here italicized being inserted in ink on the original document.

As stated, Harmeyer by virtue of this assignment claimed to be the sole beneficiary, whereas Mrs. Schmidt claimed that he was entitled to receive only the amounts paid on said policy together with the interest accruing thereon.

Under these pleadings the case was tried in said court and the following judgment rendered:

“This cause coming on to be heard on the petition of the plaintiff, the answer and cross-petition of the defendant Horace W. Hjarmeyer, and Carrie Schmidt as administratrix of the estate of Adolph F. Schmidt, deceased, and the evidence, and the court being fully advised in the premises finds that the Provident Savings Life Assurance Society of New York issued a policy of insurance in the sum of five thousand ($5,000) dollars on' the life of Adolph F. Schmidt, and that the plaintiff the Postal Life Insurance Company assumed the payment of -said policy; that among other conditions in said policy it was provided that in the event said policy is assigned by the insured, that the company shall be liable to the assignee to the extent of that insurable interest only; that said policy was assigned by the insured to one Horace W. Harmeyer subject to the conditions of said policy, and to the rules and regulations of the company, and it was further agreed in the said assignment that before payment shall be made by virtue of the assignment satisfactory proofs of the insurable interest of the assignee shall be furnished to the company and the company shall not be liable for any sum in excess of such insurable interest.
“The court further find that the plaintiff deposited with the clerk of the court the sum of $4,533.19 which was the amount due under said policy after deducting an indebtedness of the insured in favor of said company.
“The court further find that the defendant Horace W. Harmeyer refused to furnish the plaintiff any testimony as to his insurable interest in the life of Adolph F. Schmidt, deceased, .and that as a matter of fact the said Horace W. Harmeyer had •no insurable interest in the life of Adolph F. Schmidt excepting as to the premiums and interest paid by him to the said company after said assignment of said policy by Adolph F. Schmidt to said Horace W. Harmeyer, which said premiums and interest are hereinafter referred to and ordered paid to said Horace W. Harmeyer.
“The court further finds that because of the conduct of the defendant Horace W. ITarmeyer, through correspondence with the Insurance Department of New York and the Post Office Department at Washington, and through other acts whereby the plaintiff was being greatly injured, the said plaintiff was forced and did, as a matter of defense and protection to its interests, and in order to prevent further injury to its business, deposit said money with this court; that the depositing of said money under such circumstances did not constitute a waiver on the part of the company of the provision and terms of the policy providing that the said Horace W. Harmeyer shall establish his insurable interest in the life of Adolph Schmidt.
“The court further find on consideration of the answer and cross-petition of the defendant, Horace W. Harmeyer, that the said defendant Horace W. Harmeyer is not entitled to the entire fund deposited so .as aforesaid with the clerk of this court; that the said defendant Horace W. Harmeyer is entitled to the premiums paid by him to said company, to-wit: April 22, 1911, $88.80; April 27, 1912, $88.80; April 27, 1913, $88.80; with interest thereon from said respective dates up to the date of this decree, amounting in all to $294..53, and the further sum of $72.75 interest paid by the said Horace W. Harmeyer on the loan of $485 obtained by Adolph F. Schmidt in his lifetine from the plaintiff with interest thereon to date amounting in all to $12.15, making a total of $379.43, which amount the clerk of the court is hereby ordered to pay to said Horace W. Harmeyer or to Thos. L. Michie, his attorney.
“And the court coming now to the consideration of the answer and cross-petition of the defendant, Carrie Schmidt, as administratrix of the estate of Adolph Schmidt, deceased, and the evidence, finds that the plaintiff was at all times and still is willing to pay the difference between the amount so found to be due to said Horace W. Harmeyer and the .amount deposited with the clerk of this court to Carrie Schmidt, as administratrix of the estate of Adolph F. Schmidt, deceased, and the court doth now, therefore, order, adjudge and decree that the clerk of this court pay the balance of said fund remaining in his hands amounting to the sum of $4,153.76 to the said Carrie Schmidt as administratrix of the estate of Adolph F. Schmidt, deceased, or to Frank IT. Kunkel, her attorney. ’ ’

To which decree exception is taken in the following language:

“To the foregoing decree Horace W. Harmeyer, by his counsel, duly excepts, and gives notice of appeal to the Court of Appeals of Hamilton County,- Ohio, and the court hereby fixes the appeal bond at $1,000.”

No motion for new trial was filed, "and no bill of exceptions was taken. The case is therefore before this court on the pleadings and the judgment entered.

At the conclusion of the argument in this court, the court announced that the judgment would be affirmed, without stating any reasons for the affirmance.

The legal question presented to us seems so clear that we hardly thought it necessary to consider the case further, or to give any reasons why the judgment should be affirmed.

The motion, for re-hearing is now filed, and elaborate arguments have been presented to us, asking that the former judgment be set aside and judgment rendered for the defendant in error.

After giving the matter full consideration, we see no way by which we can reverse our former judgment. The issúes were squarely made as to whether Harmeyer was entitled to the whole amount of the policy or whether he was limited to recovering the amount of his insurable interest. "We are bound by the judgment that evidence was offered which would fully sustain the finding in favor of Mrs. Schmidt.

Judgment affirmed.


text:
    TRUST COMPANY DIRECTOR. LOSES HIS LIEN.
    Circuit Court of Cuyahoga County.
    The Cleveland Trust Company, Assignee, v. E. H. Klaustermeyer.

    Decided, January 22, 1912.

      Equitable Lien — Agreement for Collateral — Collateral Not Identified or Set Aside.

    A trust company being in failing condition its directors were called together and reguested to deposit with the company at least $5,000 each, it being agreed that if they would do so, each should have collateral security therefor “from the securities then owned by and in the possession of the trust company.”' Only two of the directors complied with the reguest, one depositing his money and receiving collateral as security therefor. The other (plaintiff), deposited $5,000 but neglected to get his collateral at the time and let the matter go until after the failure of the bank a few days later. No particular securities were ever set aside for him; Held: He was not entitled to an eguitable lien upon all the securities of the trust company which came into the hands of its assignee in insolvency.

      Blandin, Rice & Ginn, for plaintiff in error.

      Ford, Snyder & Tilden, contra.
    Winch, J.; Marvin, J., and Niman, J., concur.

      Reversed with opinion, Klaustermeyer v. Cleveland Trust Co., 89 Ohio State, -,

   This action originated in the Insolvency Court of Cuyahoga County upon an application of Klaustermeyer to have a preference allowed him in the sum of $5,000 and interest out of the assets of the defunct Euclid Avenue Trust Company, in the hands of the Cleveland Trust Company, its assignee.

The insolvency court disallowed the claim; on appeal to the common pleas court it was allowed, and the judgment of the latter court is here for review on a finding of facts which seems to be sustained by the evidence given on the hearing.

It appears that a few days before it failed a meeting of the directors of the Euclid Avenue Trust Company, of whom Klaustermeyer was one, was held at which it was stated that the national bank through which the trust company cleared would refuse to clear longer for it unless a large sum in cash was raised by the trust company. The .directors were requested to raise this money and deposit with the trust company, ,at least $5,000 each, it being agreed that if they would do so, each should have collateral security therefor “from the securities then owned by and in the possession of the trust company. ”

Only two of the directors complied with the request. A director named Oram deposited $5,000 and received collateral as security therefor. Mr. Klaustermeyer deposited $5,000 but neglected to get his collateral at the time, being in a hurry, and let the matter go until after the failure of the bank a few days later. No particular securities were ever set aside for him.

On his application to the insolvency court he claimed an equitable lien upon all the securities of the trust company which came into the hands of its assignee.

The doctrine of equitable lien is recognized in Ohio, and is thus stated by Pomeroy in Section 1235 of his third volume on Equity Jurisprudence:

“The doctrine may be stated in its most general form that every executory agreement in writing whereby the contracting party sufficiently indicates an intention of making some particular property, real or personal, or fund, therein described or identified, a security' for a debt, or other obligation, or whereby the party promises to convey or .assign or transfer the property as security, creates an equitable lien upon the property so indicated, which is enforcible against the property in the hands not only of the original contractor, but of his heirs, administrators, executors, voluntary assignees, and purchasers or encumbrancers with notice. Under like circumstances, a merely verbal agreement may create a similar lien upon personal property. The doctrine itself is clearly an application of the maxim, ‘equity regards as done that which ought to be done.’ In order, however, that a lien may arise in pursuance of this doctrine, the agreement must deal with some particular property, either by identifying it, or by so describing it that it can be identified, and must indicate with sufficnent clearness an intent that the property so described, or rendered capable of identification, is to be held, given or transferred .as security for the obligation.”

This case appears to come within the rule thus stated, except in one particular: the agreement relied upon does not “deal

with some particular property, either by identifying it, or by so describing it that it can be identified.”

Had the agreement been that Klaustermeyer was to have a lien on all the securities then owned by and in the possession of the trust company, the description of the collateral would have been sufficient under the holding of the leading case of Countess of Mornington v. Keane, 2 DeGex & J., 292, where the covenant was that all the lands which the covenantor should have on a certain day should be charged, or be security, for a certain debt.

In the case of Atlantic Trust Company v. The Carbondale Coal Company, 99 Ia., 234, the agreement was that “all the coal company’s accounts for coal sold,” should be assigned to the bank.

We have examined all the authorities cited by counsel on both sides, and find that the agreements construed in each case where a lien was sustained were respecting specific property, or all of the covenantor’s property of a certain kind or some aliquot portion of it.

The facts in this case show that Klaustermeyer was not to have a lien on all the securities of the trust company, yet that is what he is -asking. He was not to have a lien on the securities delivered to Oram, nor was Oram to have a lien upon more than sufficient to secure his own deposit. The offer was made to all the directors at the same time, and they were not to have liens in common and undivided upon the securities of the trust company, but each understood, as Klaustermeyer must have understood, that when each made his deposit, each was to pick out, or have assigned to him, collateral enough in each case to be sufficient security for the amount deposited.

With this view of the facts, the judgment of the common pleas court is erroneous. Nor is it to be sustained upon the theory of a trust, expressed by Judge Phillips, who passed upon this case at one stage in the proceedings as follows:

“Treating this as a loan of money, when Klaustermeyer delivered his five thousand dollars to the bank in pursuance of the agreement that he was to be secured for his loan of five thousand dollars, and did not then receive his securities but was to call at another time and get them, thereafter the bank held the securities in trust for the benefit of the security of Klaustermeyer. I think that created a trust relation between the bank and Klaustermeyer with reference to these securities, to the extent and effect that he would have therefrom what would secure his loan of five thousand dollars.”

This is only stating the theory of an equitable lien in another way and in a way criticised by Pomeroy in Section 1234 of his work already referred to, as follows:'

“It (the equitable lien) is sometimes, although I think unnecessarily and even incorrectly, spoken of as a' species of implied trust. If any reference to the theory of trust is made, it is more accurate to describe these liens as analogous to trusts; for while the two have some similar features, they are unlike in their essential elements.
“The very essence of every real trust — express, resulting or constructive — is the existence of two estates, in the same thing a legal estate vested in the trustee, and an equitable estate held by the beneficiary.
“In an equitable lien there is a legal estate with possession in one person, and a special right over the thing held by another; but then here the resemblance which at most is external, ends. This special right is not an estate of any kind; it does not entitle the holder to .a conveyance of the thing nor to its use; it is merely a right to secure the performance of some outstanding obligation, by means of a proceeding directed against the thing which is subject to the lien. To call this a trust and the owner of the thing a trustee for the lienholder,'is a misapplication of terms which have a very distinct and certain meaning.
“It follows, therefore, that in a larger class of executory contracts, express and implied, which the law regards as creating no property right, nor interest analogous to property, but only a mere personal right and obligation, equity recognizes, in addition to the personal obligation, a peculiar right over the thing concerning which the contract deals, which it calls a ‘lien/ which though not property, is analogous to property, and by means of which the plaintiff is enabled to follow the identical thing and to enforce the defendant’s obligation by a remedy which operates directly upon that thing.”

It has been suggested that Klaustermeyer is- entitled to a preference as to his $5,000 on the theory that the bank received his money after it knew of its own insolvency.'

The answer to this is that there is no .evidence in the record that the officers of the bank knew it was insolvent when the deposit was made, and if they did, or ought to have known, then Klaustermeyer himself, being a director and conferring with them as to its condition; knew, or ought to have known of its condition.

The judgment being erroneous upon the facts as claimed by defendant in error, it is reversed and judgment is rendered for plaintiff in error.


text:
    CONTEMPT IN INDUCING JUROR TO VISIT THE PROSECUTING ATTORNEY.
    Circuit Court of Cuyahoga County.
    J. A. C. Golner et al v. State of Ohio.
    Decided, January 22, 1912.

      Contempt of Court — Tampering with Juror — Privilege of Counsel.

    1. To entice a juror in a criminal case from his-home late at night and by falsehood induce him to put himself in a position which would appear compromising both to him and to the prosecuting attorney, with witnesses placed in such position that they could see the unsuspecting juror and be able to testify to his apparent, but not real, wrong-doing, is an interference with the due administration of justice and a contempt of court, punishable as'such.
    2. A lawyer is not privileged from testifying in a case against his client, as to a conference between him and his client in which future wrong-doing' of his client was discussed.

      P. L. A. Leighley aud F. A. Henry, for plaintiff in error.

      John A. Cline and W. D. Meals, contra.
    Niman, J.; Winch, J., and Marvin, J., concur.
   The plaintiffs in error, in an action in the Court of Common Pleas of Cuyahoga County, in which they were defendants, and the defendant in error was plaintiff, were found guilty of contempt of court. The plaintiffs in error, J. A. C. Golner and Charles Woodward, were each sentenced to serve ninety days in jail, and the plaintiffs in error, Ed. S. Goldstein and Frank Noonan, were each sentenced to serve sixty days in jail, and the costs of prosecution were adudged against said parties.

A reversal o£ the judgment of the court of common pleas is sought by the plaintiffs in error. A consideration of the errors assigned requires, first, a determination of the question whether the information,- on which the plaintiffs in error were attached and brought to trial, charges facts sufficient to constitute contempt of court. Demurrers to the information were filed on behalf of the various parties charged with contempt, which were overruled, and the overruling of these demurrers is one of the errors assigned.

The information is in the following language:

"Now comes John A. Cline, the duly elected, qualified and acting prosecuting attorney of Cuyahoga county, Ohio, and informs the court as follows, to-wit:
"That at the September term, 1911' of said court, the grand jury of said county and state duly returned to said court an indictment against the defendant, J. A. Golner, duly charging the, said defendant Golner with having obtained by false pretenses, certain property belonging to one E. Q.-Reeves; that on the 17th day of November, 1911, said indictment was duty filed in said court in the case of the State of Ohio v. J. A. C. Golner et al, being case No. 313 on the criminal docket of said court.
"That the said defendant Golner was duty arraigned and entered a plea of not guilty to said indictment; that thereupon, said case, against the said defendant Golner was set for trial at the September term, 1911, of said court, to-wit: on the 27th day of November. 1911; that on the 27th day of November, 1911, a jury was duly summoned, impaneled and sworn in said case; that whereupon, a. trial of said case against the defendant Golner was duly had, which trial commenced on the 27th d.av of November. 1911. and ended on the 11th day of December. 1911, when the jurv in said case, as aforesaid, returned a verdict to said court finding the defendant. Golner, guilty as charged in said indictment.
"That John A. Oline, prosecuting attorney as aforesaid, participated as one of counsel for the state in the trial of said case, and that one Samuel Glass was duly summoned, impaneled and sworn as one of the jurors in said ease, .and sat as such juror on the trial of said case, as aforesaid.
“That on the 10th day of December, 1911, and while said ease against the said defendant Golner was pending and on trial, the said defendants, J. A. C. Golner, Ed. S. Goldstein, Frank Noonan and Charles Woodward, agreed and comsipired ‘to-; gether with the intent then and there to interfere with, obstruct and defeat the administration of justice in said case; that on the said 10th day of December, 1911, the said defendants, J. A.
C. Golner, Ed. S. Goldstein, Frank Noonan and Charles Woodward, in furtherance of said unlawful design, did then .and there falsely pretend and represent to the said Samuel Glass, one. of the jurors in said ease, as aforesaid, that the said John A. Cline, prosecuting attorney and counsel in said case, as aforesaid, wanted to see him, the said Samuel Glass, at his, the said John A. Cline’s residence, for the purpose of having a personal interview with him and that the said John A. Cline had sent them to convey him, the said Samuel Glass, by automobile to his, the said John A. Cline’s, residence.
“That said representations made by said defendants to the said Samuel Glass, as aforesaid, were all and singular false and untrue, which the said defendants then and there well knew.
“That thereupon, to-wit, on the said 10th day of December, 1911, the said Samuel Glass, believing that said representations made to him by said defendants, as aforesaid, were true, accompanied said defendants in an automobile to the residence of the said John A. Cline, at No. 2276 Murray Hill avenue, S. E., in the city of Cleveland, said county and state.
“That said defendants, J. A. C. Golner and Ed. S. Goldstein, Frank Noonan and Charles Woodward, in furtherance of said conspiracy to obstruct the administration of justice in said case through fraud and deception, procured four men, who were without knowledge of said conspiracy, to be present at or near the said residence of the said. John A. Cline, so as to be able to see the said Samuel Glass enter and leave said residence, and give testimony thereof in said case for the purpose of causing a mistrial of said ease, or, in the event that a verdict of guilty were returned by the jury in the ease, for the. purpose of obtaining .a new trial thereof.
“That by reason of the premises, as aforesaid, said defendants, J. A. C. Golner. Ed. S. Goldstein, Frank Noonan and Charles Woodward were then and thereby guilty of obstructing the administration of justice, and of contempt of this court, contrary to the statute in such case made and provided.
“John A. Cline,
“Prosecuting Attorney.”

Section 12136 of the General Code provides:

“A court or judge at chambers summarily may punish a person guilty of misbehavior in the presence of, or so near the court or judge, as to obstruct the administration of justice.”

In Oswald on ‘1 Contempt of Court, ’ ’ page 8, it is said:

“To speak generally, contempt of court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrepute or disregard, or to interfere with or prejudice parties litigant or their witnesses during the litigation.”

In Hole v. State, 55 O. S., 213, it was held that removing a witness from the county of his residence where he was under subpoena to attend upon the trial of a cause pending, with the purpose .and effect of preventing his appearance upon the day. of trial, was a wrongful act which obstructed the administration of justice, and was a contempt of court.

The information here charged facts constituting a conspiracy-on the part of tlic plaintiffs in error to interfere with and obstruct the administration of justice and a carrying out of that conspiracy’-. The necessary result of the acts attributed to the plaintiffs in error would be to bring the authority and adminisr.ation of the law into disrespect and disregard and hamper and cripple the agencies through which it acts. The information, therefore, states facts which constitute a contempt of court.

Another error assigned by the plaintiffs in error makes it necessary to consider the evidence on which the conviction' in the court below was based. It is claimed by the plaintiffs in error that the evidence did not establish their guilt as charged in the information, but on the contrary, proved an innocent and laudable course of conduct on their part. •

The evidence shows that while the plaintiff in error J. A. C. Golner was on trial in the criminal branch of the Common Pleas Court of Cuyahoga County, charged with obtaining property under false pretenses, he, with the other plaintiffs in error, entered into an arrangement whereby a juror in that case was to be induced by a fictious message to go to the house of the prose-ting attorney engaged in trying the case on behalf of the state. The plan contemplated the presence of witnesses who should see the juror enter the prosecutor’s house. The plaintiff in error Charles Woodward, seems to have been the author of this program. Sunday night, December 10, 1913, was the time chosen for its- execution. On the evening of that day a meeting was held by the plaintiffs in error at AYoodward’s office, at which Horace Neff, an attorney at law, was present. -Mr. Neff had previously been retained by the plaintiff in error, J. C. A. Golner, in connection, it appears, with the criminal ease then on trial, and at this meeting the plan was unfolded and his advice sought on the legality of the transaction. He testifies that in substance his opinion, as given, was that no statute would be violated. Later that evening, the plaintiff in error, Frank Noonan, in an automobile hired for that purpose, and operated by one who had no knowledge of the plan being carried out, went to the house of the juror, told him that Prosecutor Cline wanted to see him on important business, and taking the juror into the car, drove across the city to the home of Mr. Cline, where the juror was directed by Noonan to go to the door and call for the prosecutor. In the meantime the plaintiff in error, Ed. S. Goldstein, in another automobile and accompanied by Mr. Neff and four other men, who knew nothing of what ivas to happen, until later at least, had driven to the vicinity of Mr. Cline’s house and were waiting the arrival of the other car. As soon as the prosecutor came to the door in answer to the call of the juror, .all the other parties rapidly disappeared from the neighborhood.

It is claimed by plaintiffs in error that their only purpose in conceiving and executing this affair was to test the juror whom they believed, on reasonable grounds-, to be subservient to the prosecuting attorney to such an extent that he would come at any time and to any pla'ce that official might summon him, and thereby demonstrate that he was disqualified. They assert that they acted only after they had obtained legal advice, and point to the fact that no use was made in the criminal case of the visit of the juror to the home of Mr. Cline as evidence that no improper motives animated them.

In a case like this the character of .the acts of the parties involved, and the apparent purposes to be accomplished, indicate more accurately the motives of the actors than their own protestations.

The whole scheme as conceived and executed was wrongful, and there is no room for doubt that the parties who engaged in it were well aware of its doubtful character. A juror was enticed from his home Late at night and by falsehood induced to put himself in a position which would, on its face, appear compromising both to him and to the prosecuting attorney. Witnesses were placed in such a position that they could see the unsuspecting juror and be able to testify to his apparent, but not real, wrongdoing.

If this elaborate scheme had no other purpose than to demonstrate the juror’s subserviency to the prosecutor, it is difficult to see the need of so many witnesses as were engaged for the occasion. The evidence shows that some other motive than the mere testing of the juror, of whose allegiance to the prosecutor they seemed satisfied, was back of their plan.

In our opinion, the conviction was justified by the evidence, unless the court erred in permitting the witness, Horace Neff, to testify against the objection of the plaintiffs in eirror. It is claimed that Mr. Neff was, at the time of the meeting in Woodward’s office, acting as attorney for the plaintiff in error, that he was consulted by them upon this occasion as their legal adviser with respect to the whole transaction,'and that he is disqualified from testifying.

Under Section 31493, General Code, an attorney is prevented from testifying concerning a communication made to him by his client in that relation, or his advice to his client.

The principles of Law decisive of the question involved in the action of the trial court in permitting Mr. Neff to testify, are thoroughly and learnedly discussed in Volume 4 of Wigmore on Evidence, Section 2298. In this section the author discussing the privilege between client and attorney says:

‘ ‘ It has been agreed from the beginning that the privilege can not avail to protect the client in connecting with the attorney a crime or other evil enterprise; and for the logically sufficient reason that' no such enterprise falls- within the just scope of the relation between legal adviser and client.”

Again, after discussing the reasons for the rule protecting confidences of persons who have already committed crimes or wrongs, imparted to their attorneys, the author says:

“But these reasons all cease to operate at a certain point, namely, where the desired advice refers not to prior wrongdoing, but to future wrongdoing. From that point onward, no protection is called for by any of these considerations.”

In Mathews v. Hoagland, 48 N. J. Eq., 455 (21 Atl., 1054), the rule is stated as follows:

“If the client consults the lawyer with reference to the perpetration of a crime, and they co-operate in effecting it, there is no privilege, for it is no part of an attorney's duty to assist in crime; he ceases to be counsel and becomes a criminal. If he refuses to be a party to the act, still there is no privilege, because he can not properly be consulted professionally for advice to aid in the perpetration of a crime. In the ease of frauci, if it is affected by the co-operation of the attorney, it falls within the rule as to crime, for their consultation to carry it out is a conspiracy which, on its accomplishment by the commission of the overt act, becomes criminal and an indictable offense.”

In view of the inherently wrongful enterprise concerning which Mr. Neff was consulted, and his own participation in its execution, the claim of the plaintiffs in error that he was im- . properly permitted to testify over their objection is not well founded.

Another assignment of error is based on the claim that the punishment is excessive. The punishment in contempt proceedings of this character rests within the discretion of the court. As was said in Myers v. The State, 46 O. S., 491: “The discretion here given is a sound, reasonable discretion, and its exercise in a case of this kind is reviewable.”

The punishment inflicted by the trial court was undoubtedly severe, but the offense was of such a character as to merit severity, and it can not be said there was any abuse of discretion by the court.

We find.no error prejudicial to-the plaintiffs in error in any of the matters assigned for error, and the judgment of the court of common pleas is affirmed.