author: Parker, J.

text:
    THE COVERING OF REVOLVING SHAFTING, WHEELS, Etc.
    [Circuit Court of Lucas County.]
    George W. Crossman v. P. & T. Degnan Sand, Dredging & Lighterage Co.
    Decided, March 7, 1903.
    94 O. L., 42 — Providing for the Boxing of Revolving Shafting, Wheels, Etc. — Not Applicable to the Reciprocating Parts of an Engine— Contributory Negligence of a Fireman.

    1. The statutory requirement that guards or casings be placed over revolving shafting, etc., and providing that keys, bolts and set screws projecting unevenly from revolving wheels shall be enclosed, does not include the reciprocating parts of a steam engine.
    2. One employed about an engine, who falls among the moving rods while attempting to perform a duty not required or expected of him while the machinery is in motion, is guilty of such contributory negligence as will prevent his recovery for the injuries received.
    Haynes, J.; Parker, rJ., and Hull, J., concur.
    Heard on error.
   This is an action brought by Crossman to recover for damages which he suffered in the employ of the defendant in a machine that they were operating on the dock, which was used for the purpose of unloading sand. Upon the trial the case was taken from the jury and a verdict directed for the defendant.

The plaintiff was an employe of the defendant as a laborer. The defendant was engaged in- unloading sand from a scow it had at docks near Water street, in the city of Toledo. It used for that purpose a Macmiller machine for unloading the sand. This consisted of a rotary wheel, communicating with the boat by a chain, an engine and boiler — two engines, I think — connected with machinery outside, and was used for the purpose of taking the sand from the vessel to the dock. On the evening of the day of the injury, about the time the plaintiff was leaving for home, Degnan said to him, or asked him, if he wouldn’t go over to the building and help operate the machine, as the fireman wanted to go away. They had a load of sand which had to be unloaded by ten o ’clock that evening. The plaintiff consented to go, and did go. He had before worked on that machine, and the engineer says fired before. He asked the plaintiff when he came if he knew about the business, and he said yes, he was well acquainted with it. He went over and was engaged in firing during the evening. His work brought him near the door and not to any other part of the building. Pie was simply moving coal from a box by the door into the furnace. It was his duty, as alleged in the petition, after the work was done, to close certain windows or openings in the building. There were four of them. They were kept open for the purpose of ventilation, and closed by sliding wooden doors. Instead of waiting until the work was completed and closing these after the work was finished, the plaintiff, when there were some two buckets to be moved from the boat to the dock, started out to close these windows, evidently thinking to have them closed by the time the work was practically done. He went to the other side of the building and stepped upon something to reach up to the door or window. That particular window bound a little, and thereupon he stepped up higher on a ladder, and from there, with one foot at least, attempted to step over on to a shelf that was about five feet above the floor, immediately over some part of the machinery of the engine, and he stepped his foot on some movable substance, and his foot turned a little, and slipped, and he fell down in the machinery, and one of his legs at least went down through to the floor where there was an opening at that time, between the connecting rod and what is called the eccentric rod, and the motion of the machinery injured his leg, and there was a little key on one side of the rods that was countersunk into the machinery that cut his knee. They stopped the machinery, of course, immediately, and he was taken out. The result was, he brought this suit.

The petition sets out that the defendants failed in a great many respects in the performance, of their duty towards this plaintiff: They omitted guards to this machine, and they failed ■ to furnish a reasonably safe place for the plaintiff to work; failed to furnish proper light, and several other matters of that kind that counsel very ingeniously thought that the defendants should have done in this matter in order to protect this plaintiff.

It seems to us very clear that defendants had given him a safe place to work, if he had stayed where he belonged and continued to work until the machinery was stopped, and after it was stopped, to have then proceeded to perform the duty that was incumbent upon him in closing these windows, when in doing so there would have been no danger at al. It is very apparent, it seems to us, that this man received this injury through his own negligence and carelessness in going to a place where he ought not to have gone when the machinery was in full operation, and climbed over the machine, and stepped from one point to another, in doing which he received the fall and injury.

The court, however, took the ease from the jury on the ground that there was no negligence on the part of the defendant; that the statute which had been invoked by the plaintiff did not apply to the machinery. We have examined this statute and endeavored to ascertain its meaning, and also to ascertain the character of the machinery directly at the point where the plaintiff fell. The statute (94 O. L., 42) requires:

“That owners and operators of * * * all places where machinery of any kind is used or operated, shall take ordinary care, and make such suitable provisions as to prevent injury to persons who may come in contact with any such machinery or any part thereof; and such ordinary care and such suitable provisions shall include the casing or boxing of all shafting when operating horizontally near floors, or when in perpendicular or other position operating between, from, or through floors, or traversing near floors, or when operating near passageway, or directly over the heads of the employes.”

This man was in no way injured, as we understand the operation of this machinery, by any shaft that was in motion at the time. Further it says:

“The enclosure of all exposed cogwheels, flywheels, band-wheels, all main belts transmitting power from engine to dynamo, or other ldnd of machinery, and all openings through floors, through, or in which such wheels or belts may operate, with substantial railing; the covering, cutting off, or countersinking of keys, bolts, set-screws, and all parts of wheels, shafting, or other revolving machinery, projecting unevenly from and beyond the surface of such revolving parts of such machine. ’ ’

We are unable to see where that statute in any manner relates to the machinery that was in use at this point. This covering, as we understand it, has reference to a bolt or a set-screw or some other article that projects from a revolving wheel, because, when the wheel is in motion, it might not be seen, and it might very easily catch in the clothing, or something of that kind. But there was nothing of that kind in operation at this point, so that the statute which has been invoked does not cover the ease, as we think. It is said we ought to give a very liberal construction to the statute. We are of opinion that no fair and liberal construction of the statute would be of any benefit to this plaintiff in that respect. In short, we fail to see where these defendants have been guilty of any negligence whatever in regard to the work that was being done or the machinery that was being used and operated at that time; that they did all that prudent men would properly and fairly do. This plaintiff was sent there, and near the close of work hurried because he was evidently very anxious to get away, and undertook to do that whieh should have been done after work was stopped, before it was stopped, and it was through his own act of negligence in doing this that he received his injury. The judgment of the court of common pleas will therefore be affirmed.

It is suggested by Judge Parker that even if there was any nut or set-screw there that might have contributed to this injury, there was nothing in the pleadings that covers that cause of action in any manner or form, and it was not relied upon in the trial of the case as a ground for recovery.

Parker, J.

There was no reference made to it, and it was not sought to be brought out in any way. It is a little difficult to get at exactly what this machinery Avas, or whether or not the key AAdiich fastened the connecting rod to the disk may not have been a key of a piece of machinery that required to be sunk, and as Judge Haynes says, it is not alleged as negligence.


source: Caselaw Access Project

license: Public Domain

text:
    FIRE INSURANCE.
    [Circuit Court of Harrison County.]
    Connecticut Fire Insurance Co. v. J. Lyle Clark, Receiver of Clark Bros.
    Decided, May Term, 1902.

      Insurance — Books of Account Necessary to be Kept — Under an “Iron Safe Clause’’ Covering Merchandise in a Country Store — Charge of Court — Error in, Cured by Special Verdict.

    1. Where the hooks of account kept hy the proprietor of a country store are such as would fairly show to a man of ordinary intelligence the business transacted, including the stock on hand and the purchases and sales made, the provision known as the “iron safe clause” in a policy of insurance covering the stock is satisfied.
    2. An erroneous charge of the court to the jury is not a ground for reversal of the judgment, where it appears from a special verdict that the charge was not prejudicial.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Heard on error.
   Defendant in error recovered a judgment in the court of common pleas against plaintiff in error upon a policy of insurance for loss sustained upon a stock of merchandise caused by fire. The principal controversy below, and also in this court, is upon the provision of the policy known as the “iron safe clause,” the provision being as follows:

“The insured in this policy hereby covenants and agrees to take an inventory of the stock covered by the policy at least once every twelve months during the life of this policy, and unless such inventory has been taken within one year prior to the date of the issuing of this policy, one shall be taken in detail within thirty days thereafter; and the insured further covenants and agrees to keep a set of books showing a complete record of the business transacted, including all purchases and sales both for cash and credit during the life of the policy; keeping them securely locked in a fire proof safe at night and at times when the store mentioned in this policy is not actually open for business, or in some secure place not exposed to fire which would destroy the building where the business is carried on; and that in ease of loss the insured is to produce said books and inventory, and in the event of failure of the insured to produce the same the policy shall be null and void. ’ ’

It is claimed that the boobs kept were not such as were required by this provision of the policy. Counsel insist that there must be a strict compliance with the conditions: “That the boobs must show a complete record of the business transacted,” and that the insurance company is entitled to a literal interpretation of the words of the policy.

Policies of insurance should be construed as other written contracts. Reasonable interpretation is all that is required. In Turley v. Fire Ins. Co., 25 Wend., 374, 377, Nelson, C. J., in referring to a condition of a policy of insurance requiring the insured, if damage by fire was sustained, to procure a certificate under the hand and seal of the magistrate or notary public most contiguous to the place of the fire, setting forth certain facts in regard to the fire and the insured, said:

“This clause of the contract of insurance is to receive a reasonable interpretation; its intent and substance as derived from the language used should be regarded. There is no more reason for claiming a strict literal compliance with its terms than in ordinary contracts. Full legal effect should always be given to it, for the purpose of guarding the company against fraud or imposition. Beyond this, we would be sacrificing substance to form— following words rather than ideas. ’ ’

In the case of The Liverpool & L. & G. Ins. Co. v. Kearney, 180 U. S., 136 (21 Sup. Ct. Rep., 326), Justice Harlan, in delivering the opinion of the court, says:

“Turning now to the words of the policies in suit, what is the better and more reasonable interpretation of those provisions so far as they relate to the issues in this case ?
“The covenant and agreement ‘to keep'a set of books showing a complete record of business transacted, including all purchases and sales, both for cash and credit, together with the last inventory of said business, ’ should not be construed to mean such books as would be kept by an expert bookkeeper or accountant in a larger business house in a great city. That provision is satisfied if the books kept were such as would fairly show a man of ordinary intelligence all purchases and sales both for cash and credit.”

The policy issued to Clark Brothers, as far as the personal property was concerned, was upon a stock of merchandise in a country store situated in a small village. The books kept, it is true, were not very methodical. There was, however, the inventory book, showing the inventory taken within a year; and a book showing all sales, both for cash and upon credit. Some goods were exchanged for produce, but the amount of such exchange and its effect upon the stock purchased could be ascertained with reasonable certainty from the sales book. There was an invoice boob. True, the invoices were not all copied in the book, some original invoices being pasted in the book without copying. A large number were not pasted in the book at the time of the fire, but were placed in afterwards, they being kept in the safe. There was no claim that there was any fraud or that any invoices were placed in the book for goods not actually purchaser since the inventory made in January previously.

We, therefore, are of opinion that the books kept were such as would fairly show to a man of ordinary intelligence the business transacted; the stock on hand in January and the purchases and sales, both for cash and credit subsequently made.

The other question made is upon the charge of the court. The court submitted the question to the jury as to whether .or not the books kept by Clark Brothers were in accordance with the iron safe clause of the policy, and properly so submitted the question. It was a question of fact to be determined by the jury, under proper instructions of the court as to what would be a compliance with this provision.

The averment of the petition was that plaintiff had duly kept and performed all the conditions of the policy, except as to furnishing proofs of loss, and that that condition had .been waived by the insurance company.

In the charge the court, inadvertently no doubt, stated to the jury that it was necessary for the plaintiff to satisfy the jury by a preponderance of the evidence that they had kept the necessary books, and also furnished the necessary proofs of loss, unless they should find the company had waived the same. There being no allegation in the pleadings that the company had waived the keeping of the necessary books under the iron safe clause, and no proof of any waiver, that part of the charge was clearly erroneous and would be fatal to the judgment, provided it was prejudicial.

Special interrogatories were submitted to the jury at the request of defendant below, one of the interrogatories being as follows :

“Were the requirements of the iron safe clause in the policy complied with ? ’ ’

The jury answered:

‘ ‘ They were. ’ ’

The question was direct, specific and certain; not were the provisions complied with or waived, but were the necessary books kept and preserved; and the answer was:

“They were.”

The error of the court in the charge could, therefore, have had no effect upon the jury, and plaintiff in error was in no manner prejudiced.

In the case of Chase v. Brundage, 58 Ohio St., 517, the court held:

“It is the province of the jury and not of the court, to determine whether there was such agreement, which must be done •from all the evidence; but error in the failure to submit that question to the jury by the general charge of the court or refusal to charge, is cured, where it is submitted at the request of a party by interrogatories calling for a special finding of the fact, and is determined by such special finding returned by the jury, consistent with the general verdict.”

On page 526, Williams, J., says:

4 4 The special findings are consistent with the general verdict, and cured the error in the general charge of the court, and in its refusal of the instruction requested. They find the essential facts which fix the legal rights of the parties, and cover the questions that the plaintiff desired to have submitted to the jury by the instructions which were refused.”

Mooney McCoy, for plaintiff in error.

Hollingsworth & Cunningham, for defendant in error.

Applying the same principle to this case the error was not prejudicial. The judgment will be affirmed.


text:
    BILL OF EXCEPTIONS.
    [Circuit Court of Sandusky County.]
    Frank A. Knapp, Trustee, v. Barbara Scherck.
    Decided, 1903.

      The Terms “Testimony” and “Evidence” Not Equivalent — Bill of Exceptions Must Contain All the “Evidence” to Secure a Review of the Case on the Weight of the Evidence.

    The word “testimony” can, not be accepted as synonymous with “evidence” in the recital that a bill of exceptions contains all the evidence submitted in the case; and where it appears that documentary matter of any kind was offered at the trial below, a reviewing court will decline to hear the case if it does not affirmatively appear from the bill of exceptions that all the “evidence” is- included which was submitted at the hearing below.
    Parker, J.; Haynes, J., and Hull, J., concur.
   This is a proceeding brought to obtain a reversal of an order of the court of common pleas, refusing to discharge an attachment. It is contended that upon the evidence submitted to the court below, it should have discharged the attachment, and that it erred in not doing so.

To present that question, of course, it is necessary for the’ plaintiff in error to bring up the evidence by a bill of exceptions, and that he has attempted to do.

It is contended by defendant in error that the bill of exceptions does not show that it contains all of the evidence submitted upon the hearing of the motion to discharge the attachment.

The bill of exceptions, after setting forth various affidavits and testimony in other forms which was submitted, contains the following statements:

“And thereupon the defendant rested. The foregoing is all of the testimony that_was offered by either party to said action to discharge said attachment.”

It is the law generally, throughout the Union, and is settled in this state by a long line of decisions, beginning as far back as Hurley v. State, 6 Ohio, 399, that where a court of error is asked to set aside an order or judgment of a lower court, upon the ground that it is not sustained by sufficient evidence, or is against the weight of the evidence, the bill of exceptions must set forth affirmatively that it contains all the evidence submitted to the lower court. This must appear expressly, and it must appear from the bill of exceptions. It can not be made to appear otherwise, and therefore the reviewing court is not at liberty to regard statements of counsel or other extraneous evidence, that the bill of exceptions in truth contains all of the evidence submitted to the lower court.

The question presented here is whether a statement that the bill of exceptions contains all the testimony submitted is equivalent to a statement that it contains all the evidence submitted.

Our code does not distinctly define the terms “evidence” and “testimony,” and yet there is some language in the code that we think throws a side light upon the question.

Section 5305, Revised Statutes, the sixth clause, provides that a new trial may be granted on the ground, “That the verdict, report or decision is not sustained by sufficient evidence, or is contrary to law.”

There the term “evidence” is used as comprehending every form of evidence, every form of admissible information to a court, and includes testimony as well as documentary evidence, exhibits, which may be of a corporal character, and every other thing which may properly give information to the court upon the issues presented.

Chapter 3, Title 1, Division 3, of the code, dealing with “evidence” has various subdivisions; one on the competency of witnesses; one on the means of securing attendance; one on the mode of taking testimony and exceptions to depositions; one on the admission and inspection of documents, and one on variances.

In the special division on the mode of taking testimony, we find this in Section 5261, Revised Statutes :

‘1 The testimony of witnesses may be taken.
!! 1. By affidavit.
‘ ‘ 2. By deposition.
“3. By oral examination.”

Section 5262, Revised Statutes, provides that:

“An affidavit is a written declaration under oath made without notice to the adverse party; a deposition is a written declaration under oath, made upon notice to the adverse party; and oral testimony is that delivered from the lips of the witness. ’ ’

So that the word “testimony,” by these two sections and other provisions of the statute, is made to include not only the oral statements of witnesses in court, but the statements of witnesses by way of affidavit or deposition.

The fourth subdivision of the chapter treats of the subject of the admission and inspection of documents in a,way to indicate that in the minds of the codifiers documentary evidence would not properly come under the descripion of testimony, and nowhere in the statutes or in the reports do we find such use of the word “testimony” as would include anything but the statements of witnesses either by way of affidavit or deposition or orally.

We are of the opinion that the word “testimony” is a word which does not include documentary evidence, or various forms of evidential matter, such as photographs, etc., which may be introduced as evidence, and which must be made a part of the bill of exceptions, if it is to include all the evidence submitted.

Therefore the statement that the bill of exceptions contains all the testimony submitted, does not necessarily carry with it a statement that it contains all of the evidence submitted.

This bill of exceptions shows that there was oral testimony, and testimony in the form of a deposition, taken upon some other occasion, but read upon this hearing, and that various affidavits were submitted; that this testimony (for it all comes under the description of “testimony,”) was introduced, and was considered by the court, but for aught that appears there may have been a very great deal of other evidence of a very persuasive character, which was considered by the court.

We are not disposed to be technical or to place a hindrance in the way of bringing these cases into this court for review. We have been disposed to be liberal in the consideration and decision of questions presented to us along this line, and yet, in view of the repeated utterances of our Supreme Court upon this question, we do not feel at liberty to hold that a statement that a bill of exceptions contains all the testimony submitted is sufficient.

In Hall v. Reed, 17 Ohio, 498, in the syllabus the word “testimony,” is used as the equivalent of evidence, but that was at a time when the syllabus was not prepared by the court, and in looking into the opinion we find that the court used the word, “evidence.”

In Pittsburg, Ft. W. & C. Ry. Co. v. Probst, 30 Ohio St., 104, the court says that a bill of exceptions must show that it contains all the testimony in the ease. In that case, the only question was about the omission of certain testimony. While it is true that it must contain all the testimony, it is equally true that, as said in a great many decisions, it must also contain all the evidence, and we find no decision or no utterance of any court that supports the contention that the statement that it contained all the testimony would be sufficient. •

In Miller v. Fuller, 52 N. E. Rep., 101, decided by appellate court of Indiana, in 1898, a paid of the syllabus reads:

“A statement in a bill of exceptions ‘that this was all the testimony given in the cause’ is defective, ‘testimony’ and ‘evidence’ not being synonymoús. ”

And in the opinion the following eases are cited as supporting this holding: Kleyla v. State, 13 N. E. Rep., 255; Harvey v. Smith, 17 Ind., 272; Brickley v. Weghorn, 71 Ind., 497; Sandford Tool & Fork Co. v. Mullen, 27 N. E. Rep., 448; McDonald v. Elfes, 61 Ind., 279; Gazette Printing Co. v. Morss, 60 Ind., 153; Ingel v. Scott, 86 Ind., 518; Ehrisman v. Scott, 32 N. E. Rep., 867.

In Wyoming, L. & Tr. Co. v. Holliday Co., 24 Pac. Rep., 193, 194, decided by the Supreme Court of Wyoming in 1890, the syllabus reads in part as follows:

“The sufficiency of the evidence to sustain the finding will not be reviewed, on appeal, where the bill of exceptions only purport to contain ‘All the testimony offered by either party.’ ”

And in the opinion this is said:

“Testimony embraces only the declarations of witnesses made under oath or affirmation (Revised Statutes, Wyo., Sections 2609, 2610, Bouvier Law Diet., title ‘Testimony,’) while ‘Evidence, in legal acceptation includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved’ (1 Greenleaf Evidence, Section 1). Testimony is but one of the several instruments of evidence, and can not be considered the equivalent thereof; for evidence embraces not only testimony, but also private writings and public documents.” Abbot’s Law Diet., title “Testimony”; Thompson Trials, Section 2784; Central Union Telephone Co. v. State, 12 N. E. Rep., 136.

These cases are in point and sustain the contention of counsel for defendant in error, and the views of this court herein-before expressed, and we are cited to and find no authority to the contrary.

Because it does not appear affirmatively in this bill of exceptions that it contains all the evidence submitted upon the hearing, we feel bound to sustain the objection, and we must decline to review the decision of the court below upon the weight of the evidence.

And no error otherwise appearing, the judgment of the court below is affirmed.


text:
    DAMAGES TO ABUTTER. FROM IMPROVEMENT OF STREET TO ESTABLISHED GRADE.
    [Circuit Court of Hamilton County.]
    Elizabeth Ross v. City of Cincinnati.

    Decided, December 21, 1902.

      Street — Improvement of, to Establish Grade — Grade Found to be Reasonable — Extent of an Abutting Property Owner's Right to Damages — Rights of the Municipality Resulting from a Dedication —Are the Same as from an Appropriation.

    1. An abutting property owner has the right to make an improvement with reference to a grade established by ordinance, by improvement, or by user, and if such grade is thereafter changed, he is entitled to damages; but if there has been no grade established by ordinance or user, the property owner is not entitled to damages when a grade is established, unless it is an unreasonable grade.
    2. Where land is appropriated for street purposes, whatever damages an abutting owner is entitled to at the time the appropriation is made, by reason of a cut or the taking away of lateral support, must be determined in that action.
    3. And where a dedication of the land has been made, the dedication invests the municipality with rights as full as those derived from proceedings in appropriation.
    Swing, P. J. (orally); Smith, J., and Giffen, J., concur.
    Heard on error.

       Affirmed by the Supreme Court, without report (67 O. S., 522).

   The case of Ross against the city of Cincinnati is a case in this court on error to the judgment of the court of common pleas. The city of Cincinnati brought an action in the court of common pleas for the .purpose of ascertaining the amount of damages which property owners might have by reason of the improvement of an avenue in the western portion of Cincinnati, called Ross avenue.

In that proceeding the plaintiff here, Elizabeth R. Ross, filed her claim for damages by reason of this improvement. The facts are as follows: In 1853 this avenue was dedicated to the city by the plaintiff. Also in 1883 she rededicated it at the time she subdivided her property, I believe, into lots.

In 1879 the city of Cincinnati passed an ordinance fixing the grade of this street, and this improvement is to be made in accordance with that established grade. No improvement of the avenue had ever been made by anyone; neither the city nor the people owning property abutting upon this avenue had improved it, but it was used as a means of ingress and egress by the people living along it, and the public also used it as far as their necessities required for the purpose of going to and from the premises abutting on it.

Now it is claimed by Mrs. Ross that she is entitled to damages, and she subdivides the loss into three heads, owing to the different location of the property as it abutted upon the avenue.

Near the house abutting on a portion of the avenue, and in front of the house, the improvement contemplated a cut of some four or five feet in front of her premises,; west of the house was another tract of land about two hundred feet, I believe, in extent, where it required a fill of some four or five feet, and the improvement as contemplated by the city would place upon her property the burden of maintaining this fill, or a portion of it; therefore the city would require an easement for the support of that earth to make the proper width. Still further west, some two or three hundred feet, the improvement requires a cutting of the ground to the extent or three feet at one end and twelve feet at the other.

The jury found in answer to special interrogatories the damage to the property where the fill was required, two hundred dollars; and they further found that if Mrs. Ross was entitled to any damage by reason of the cut on the western portion of her land that she would be entitled to recover four hundred dollars — that would be the amount of the damage; and I believe a similar amount for the cut in front of her house where the improvement was made.

The city admits its liability for two hundred dollars for the portion of the property where the fill was made.

The jury found that the grade as established by the city was a reasonable grade.

"What are the rights of the parties? The court found that Mrs. Ross was entitled to two hundred dollars, but found against her as to the other claims.

It seems to us the law is very well settled in Ohio by a great many decisions of our Supreme Court, and also by other courts of the state, especially this court, and that it is to this effect: That wherever there has been a grade established, either by ordinance or by improvement or user for a long time, that the property owner has a right to make improvements in accordance with the grade as established either by ordinance or by user; but if there has been no established grade, either by ordinance or by user, the property owner is not entitled to any damages unless the grade which the city establishes is an unreasonable grade.

There was no grade established at this place by user or by ordinance except the ordinance of 1879, and these improvements were made in accordance with that grade.

No work had ever been done upon this property, no grade had ever been established, and it could not be said that any improvements made under these conditions would be saved from the general provision that a party making improvements builds with reference to a reasonable grade. So we do not see upon what theory the plaintiff may recover for the improvements that she made on the property when the grade as now fixed is found to be a reasonable grade, and no exception was taken, or no question is made as to that. She was bound to make her improvement with reference to a reasonable grade, which the city subsequently established.

It is claimed that while that may be true, as to the improvements that she made, still Mrs. Ross is entitled to damages by reason of cutting her unimproved property at the western portion where the cut would be from three to twelve feet; that she is entitled to lateral support.

We think that the doctrine of lateral support has no application to facts in this case. Mrs. Ross dedicated this property for a street. She dedicated with that everything that was necessary to make a street in accordance with the reasonable grade that might be established by- the city. The dedication would amount to very little if she simply dedicated the surface of the ground, and if the city would be powerless after that dedication to go on and make a street in accordance with a reasonable grade, she would still retain them in her certain rights to that street. That is entirely inconsistent, we think, with her dedication. It would be the same if the city had appropriated the property for a street. As we held in the case of Tenney v. Cincinnati, whatever damages the party is entitled to at the time of the appropriation by reason of the cut or taking away of lateral support must be determined in that action; and if that can be determined in the action and should be determined at the time the appropriation is made, the dedication by the party would certainly be as full as the appropriation, and if she gave it she could not turn around afterward and sue the city to recover back that which she had already given. And we have found, as I say, that she by her dedication gave so much of that property as was necessary to make a reasonable grade. If the city had gone beyond a reasonable grade, then under the laws of our states she would have her action for that additional right of property that she had not parted with, because under our laws she is only supposed to grant the right to a street of a reasonable grade.

Frederick Hertenstein, for plaintiff in error.

Charles J. Hunt and Frank H. Kunkel, for defendant in error.

The judgment of the court will therefore be affirmed.


text:
    STOCKHOLDERS’ LIABILITY CAN NOT BE WAIVED.
    [Circuit Court of Ashtabula County.]

      J. D. Kreisser v. Ashtabula Gas Light Co. et al.
    Decided. October 18, 1901.

      Corporations — Increase of Capital Stock — Bonds Issued, on the Faith of Such Stock — No Effort to Sell the New Stock — Holders of the Old Stock Held Liable — Stockholders’ Liability a Matter of Public Policy — And can not be Waived.

    1. Stockholders and directors are estopped in any suit to which they axe parties from denying the validity of an increase of capital stock, made in conformity with Section 3262, or of an issue of bonds duly authorized by the board of directors on the faith of such increase of stock.

      2. Where a certificate as to an issue of new stock was filed, and the proceedings authorizing the issue were in conformity with law, and bonds were put forth on the faith of such issue, but no effort to sell the new stock was ever made, and none of the stock was ever issued except of old stock, it will be presumed that it was the intention of the stockholders and directors to purchase the new stock in amounts proportionate to their holdings of old stock, and they are estopped from denying that they are the holders of the new stock.
    3. The provisions found in Section 3 of Article XIII of the Constitution, and in Section 3258, Revised Statutes, relating to the liability of stockholders, are matters of public policy and can not be waived.
    Laubie, J.; Burrows, J., and Cook, J., concur.
    Heard on appeal.
   This case is in this court upon appeal, and there are substantially but two propositions submitted to the court for its determination.

The first question is as to the increase of stock — whether that was a valid increase, so as to bind the stockholders, and if it was, who was to pay for those shares of stock.

The capital stock at that time, in 1888, was $25,000, and there were but eight stockholders. Whether all these stockholders were directors or not, I am not able to say. Who some of the directors were is shown, but who all of them were does not appear. But in 1888, the time of this increase, there were but eight stockholders, and they met to take such action as was authorized by statute (Section 3262, Revised Statutes) for “the purpose of increasing the capital stock of said company and authorizing a loan.” They made a written waiver as provided by statute as to notice in such, eases. Each stockholder voted in the affirmative that the stock should be increased from $25,-000 to $60,000, to be divided into 1,200 shares of $50 each, as it had become and was necessary to improve, enlarge, repair and reconstruct its works, plant and establishment, requiring an expenditure of about forty thousand dollars, as recited in the resolution. The resolution further provided that the directors should make, execute and issue eighty coupon bonds of the company, of $500 each, with a mortgage- on all the property then owned or to be afterwards acquired-by the company, to secure said bonds in such form and conditions “as said directors shall deem advisable to properly effectuate and accomplish the object and purposes herein intended.” Thereupon the directors met and caused to be executed the bonds and mortgage as directed. The mortgage recited alt the resolutions of the stockholders and directors in regard thereto; and that “the capital stock of said gas light company is sixty thousand dollars ($60,000), divided into 1,200 shares, and of the par value of fifty dollars ($50) each; and, whereas, under the provisions of said act of May 1, 1852, companies incorporated thereunder are authorized to borrow money, not exceeding the amount of their capital stock, and issuing their notes or coupon or registered bonds therefor. ’ ’

The bonds were placed upon the market, and a portion of them sold to parties to this case.

There was no provision made in any of the resolutions passed by the stockholders or the directors for the disposal of the additional shares of stock, and no attempt was ever made to sell them. So far as the increase of the capital stock was concerned, that was fully accomplished according to law, the directors having filed the certificate in regard thereto as required by Section 3262, Revised Statutes. If there was any defect in the matter in any form, none of the parties to this suit can now take advantage of it. The parties here are those stockholders, and those of them who were directors, and they are each and all estopped to deny the increase of the capital stock, and they would be fully estopped to deny the validity of the bonds and mortgage.

The provision of the statute (Section 3256, Revised Statutes), authorizing the execution of mortgages to the amount of capital stock of the company, may perhaps be of doubtful construction. At all events, the statute is not definite and does not in express terms provide that bonds and mortgage may only be executed to the extent of the capital stock paid up.

The difficult question in connection with this is whether there were any subscribers to that increased stock — any one who would be responsible as stockholders for its par value, and with the liability for the debts of the company to the extent of the amount of stock subscribed. We have arrived at the conclusion that it was the intention of the stockholders and the directors that they themselves were to take that stock in proportion to the amount of stock each then held in the company. Having filed the certificate in the proper department, as required by statute (Section 3262, Revised Statutes), in which they certified that the capital had been increased to $60,000; and having issued the mortgage and bonds aforesaid upon the faith of this increase, and having made no provision for the disposal of such stock, it must be assumed, and they should be estopped to deny, that they themselves intended to take this increased stock.

It seems there was none of this stock issued to any party but one. Henry H. Parsons, who was then one of the prominent stockholders owning fifty shares, and who voted for all the proceedings, and perhaps was a director, died. Some years thereafter his administrator and the .heirs turned in his certificate of fifty shares of the original $25,000 capital stock with the request to issue shares therefor to his heirs, and the president and secretary of the company, who were the same, at least the president was, at the time when this action was taken in regard to increase of stock, issued two certificates for sixty shares each, there being two heirs, one to'Mrs. Ford and one to Samuel H. Parsons, and this was their proportion, or would be Henry H. Parsons’ proportion of the increased capital stock; and this was done without question on their part; they held the stock and acted upon it, and continue to hold it. Now when we take that into consideration, that this was done without anything being said about it — that the president and secretary of the company of their own motion issued stock in this proportion; that it was accepted without question, and is still held by those parties, and the further fact that no means of any character were taken, adopted, resorted to or mentioned by any stockholder or director for the sale of that stock upon the market, or to put it upon the market, it is fair to assume that it was the understanding and agreement between all of the eight stockholders that they were ■themselves to take this stock and be responsible for the payment of it. It seems almost impossible that men with the business ability of these stockholders and directors, who were thus engaged in such expensive business, would go through a matter like that without any understanding, agreement or arrangement for the disposition of the stock or its conversion into money; and the only explanation that we can arrive at is, that it was understood among themselves that they were to take such increase, in proportion to the stock which they then held; and the act of the president and secretary in issuing to the heirs of Parsons stock in such proportion was an act from which with the other evidence such understanding may be inferred.

It was not necessary that certificates of stock should have been issued, as an equitable owner of stock is liable as such in all respects the same as if a certificate had been regularly issued to him, which is a mere evidence of his ownership. So the fact that certificates were not issued to any of the stockholders save to the heirs of Henry Parsons, is matter indifferent in the ease, when we have arrived at the conclusion that the owners of that stock were on the record as then stockholders, and it was the understanding between them that they should take stock in proportion to the stock they then held.

Substantially all the books of the company are missing; otherwise this presumption might be turned into a certainty.

And this brings us to the second question in this ease, whether or not the holders of these bonds were bound by the provision therein that no recourse should be had for their payment to any individual liability of any stockholder; and which provision was inserted by action of the directors. The stockholders had made no provision against their individual , liability and made no declaration in that regard, and that provision was inserted by the directors without consulting the stockholders. It may be possible that such stockholders subsequently might take advantage of that provision, growing out of the rule that has been laid down by the Supreme Court of the state, that a contract made upon a valid consideration for the benefit of a third person may be enforced by such person, if nothing stood in the way of their doing so; but we have come to the conclusion, after careful consideration, that the constitutional and statutory provisions as to the liability of stockholders can not be waived by agreement. That liability is absolute, and the shareholder can not get rid of it by any waiver of, or agreement with his creditors.

We are cited by counsel to a case in the fifth circuit, Hull v. Coal & Iron Co., 20 C. C., 533, holding a contrary doctrine, where the same question was presented as we have here. The provisions of the bonds there were substantially in the same words as here: “No holder of this bond shall have recourse for its payment upon any stockholder of said company, under or in pursuance of any law imposing liability upon stockholders of incorporated companies, whether such law be now or shall hereafter be enacted.”

The question is: Does this stipulation in the bond operate as a defense to.an action to enforce stockholders’ liability? And in that case it was held that it did. The court in that case thought the question before them was entirely different from tne one presented in Railway Co. v. Spangler, 44 Ohio St., 471, and Insurance Co. v. Leslie, 47 Ohio St., 409. Now if this was a question which involved only the private benefit of a creditor, a creditor might waive such liability, but if it was intended to affect citizens of the state other than mere creditors, or was adopted to remedy an existing evil in the management and conduct of corporations, and as an incentive to a more careful management thereof, then it is a question of public policy and becomes binding, and parties may not waive its operation. Evidently such was the intent and purpose of the framers of th» Constitution, when they inserted the stockholders’ double liability clause in that instrument.

It was discussed fully in the constitutional convention by such jurists as Judge Ranney and others, and its force and effect stated and commented upon — that corporations were engrossing the business interests of the country and had become so numerous throughout the state that it was necessary for the protection and benefit of the public that sueh provision should be made. These eminent jurists saw in the future the increase, and they referred to it, of corporations, and their absorption of the business of the country and their influence; and they have increased in vast proportions, both as to wealth and numbers. They hold a prominent place to-day in all the business interests of this state and nation. They are accumulating and have accumulated vast influence over those business interests, and over thousands, if not millions, of our people.

It was well, as these eminent jurists stated, that some restrictions should be placed upon such corporations, to bring them somewhere near to the conditions of a simple partnership, and in some way compel the stockholders to see to it that their agents and officers perform their duties and manage the affairs of such corporation with care and fidelity to all, not only with reference to their creditors, but with reference to the public and the laws of the state. And this individual liability is an incentive to compel shareholders to see that their agents and servants carry out and obey the laws of the state, and manage their business with care, honesty and fidelity so as to form a safeguard to the interests of the public as well as that of the shareholders.

That the public is interested in this may be illustrated by reference to the numerous eases in our courts where strangers recover large judgments against corporations for injuries suffered from the dangerous machinery used so largely by these corporations, and the negligence of their agents and servants; and, hence, the public is deeply interested in the careful management of such machinery, and in the carefulness and fidelity of such agents and servants, and in the solvency of such corporations, and in the individual liability of the stockholders for such wrongs in case of the insolvency of such corporations.

In every case that has gone to the Supreme Court on the question of that liability the matter has been spoken of as a question of public policy. In the ease of Brown v. Hitchcock, 36 Ohio St., 667, Judge White, pages 679, 680, says:

“These provisions are intended to guard against improvidence in contracting debts on behalf of corporations, and to give security to creditors. These objects are best accomplished by attaching the liabilities to those under whose control the corporation is operating, and who are known to those dealing with it as the persons interested.”

So that he considered and regarded it as something more than a mere provision for the creditors’ private benefit.

Judge Johnson in his dissenting opinion on another question, page 689, says:

“Under the liberal policy of past state legislation, authorizing corporations for almost every kind of business, having its inception and a large development under the Constitution of 1802 and a still larger one under that of 1851, a vast amount of the individual property of the state is represented by shares in such corporations.
“Any legislation or any decision which materially affects the character and value of this species of property, heretofore so liberally fostered and encouraged, is a matter of great public concern.
“The constitutional provision under consideration was intended to remedy an existing evil, and to provide an additional security to creditors.”

In Boice v. Hodge, 51 Ohio St., 236, 238, this is stated by Bradbury, J., page 238:

“The liability of stockholders is founded upon Section 3 of Article XIII of the Constitution of 1851, and Section 3258, Revised Statutes. The subject was of sufficient importance to have thus secured the attention of the convention that framed our present Constitution, and, we think, that in view of this constitutional provision, and the legislation founded upon it, the principle of holding stockholders of corporations liable for corporate debts is within the public policy of the state, and that the statute should be construed so as to constitute it a substantial provision for the benefit of the corporate creditors. ’ ’

Insurance Co. v. Leslie, supra, came up for consideration under what was known as the Howland Law (Sections 3643, 3644, Revised Statutes). That law provided that in all eases of insurance of a building, the agent of the company should make an examination of the property and its surroundings, and fix the value of the property, and in ease of total loss the value fixed in the policy should be the rule of damages. That act was also passed to remedy an evil. Prior thereto when insurance was taken out on a building for an amount larger than its value, and a loss occurred, all that the company had to pay-under the conditions of the policy was its actual value at the time of the loss, although it had been receiving premiums on a much larger value. In that case it was claimed that this examination was waived. This is part of the syllabus:

“1. The act of March 5, 1879, ‘to regulate contracts of insurance of buildings and structures’ (now Sections 3643 and 3644, Revised Statutes), applies to all policies issued since it went into effect, insuring any building or structure in this state, against loss or damage by fire. The neglect or omission of the company’s agent to make the examination of the property and fix its insurable value, as the statute requires, can not prevent its application to a policy issued by the company, or defeat or affect the operation of the statute.
“2. The statute is founded upon considerations of public policy; its purpose being to exact diligence and care on the part of insurance companies to avoid improper risks and overinsurance, by requiring them to cause their agents to make personal examination of the property, a full description thereof, and fix its insurable value, as well as to protect the insured against unreasonable forfeitures and defenses. The more effectually to accomplish these results, the statute holds the company liable on its policy, unless, after its issue, a change occurs, increasing the risk, without its consent, or the insured has been guilty of intentional fraud, and in case of the total loss of the property by fire, the measure of the liability is fixed at the amount mentioned in the policy, upon which the insurer received a premium. The statute can not be regarded as conferring upon the assured a mere personal privilege which may be waived by agreement. It moulds the obligation of the contract into conformity with its provisions, and establishes the rule and measure of the insurer’s liability.”

Now if such a statute as that can be said to have been adopted as a matter of public policy, and embraces something more than mere personal benefit, and can not be waived, how much more should it be in the ease before us. If at the time a building is burned the insurer is paid all that it is then worth, he substantially gets back to himself all the loss that he actually suffers. In addition to that there is another matter. That statute may be said to be an incentive to arson, because it encourages a man who owns a building to have it insured at a good big sum by the agent, and then when he finds out that that would be a good sale of it, accomplishes it by the use of a match. But such considerations could not be advanced here, as the very object of this statute was to increase the care in the management of these corporations, by extending the liability of the stockholders so as to compel them to see that their agents managed the business with care, honesty and fidelity, and thus subserve the interests of the public and the state.

Entertaining these views we hold that the individual liability - of the stockholders must be enforced in this case. Decree accordingly.


text:
    SEPARATE PROPERTY OF WIFE.
    [Circuit Court of Erie County.]
    Julia S. Manahan v. William T. Hart.
    Decided, January 19, 1903.

      Husband and Wife — Separate Property of Wife — Liable to What Extent on a Note Executed by Her — Effect of the Act of 1884 — Jurisdiction of a Court in this State to Enjoin Proceedings in Another State.

    1. Prior to the act of 1884, a married woman could by contract only charge the separate estate owned by her at the time of entering into the contract, and after-acquired property could not be reached under such contract.
    2. An Ohio court, having jurisdiction of the parties to an Ohio judgment which has become inoperative, can enjoin the judgment creditor from proceeding in another state to enforce the judgment against property of the debtor in such state.
    Haynes, J.; Parker, J., and Hull, J., concur.
   This case comes to us by appeal and presents a good many novel questions. The case has been argued fully by counsel upon either side and extended briefs and citation of authorities have been offered. I shall not undertake to go through a discussion of the cases; but I will very briefly, within the time I have, state the points and so much of the case as seems necessary to illustrate what we consider the turning point in the case.

On March 19, 1897, William T. Hart commenced an action in the Court of Common Pleas of Lucas County against Julia S. Manahan, the present plaintiff, to recover from her the amount of certain prbmissory notes, which had been executed on April 14, 1879, by Julia S. Manahan and Betsey M. Russell to Mr. Hart, whereby they promised to pay in three years after date to the said Hart the sum of $986.47. The matter, according to the record, seems to have grown out of some real estate transactions that had occurred prior to that time. The petition nowhere shows that the defendants, or either of them, were married women, while in fact Julia S. Manahan was a married woman at the time of the execution of the note and at the time it was sued upon. After she had been served with process she filed an answer whereby she set up the fact that:

“At the date of the execution' of the note, as set forth in plaintiff’s petition, she was, and ever since has been a married woman; that at the date above mentioned she had no separate estate, save and except what she theretofore invested in a firm theretofore carrying on the hardware business in the city of Toledo, Ohio, .under the firm name of Breekenridge & Company; that about said date, all of said firm property was sold under the orders of this court, and all the proceeds applied in the payment of certain debts of said firm, and the costs of the action in which said order was entered, and that since said time she never has been and is not now the owner or possessor of any separate estate whatsoever, and defendant says that she is not liable in this action on said note set out in said plaintiff’s petition. ’ ’

There was a reply filed by the plaintiff, and upon the issues joined the parties proceeded to trial. The case was submitted to the court without the intervention of a jury; the record recites that a jury was waived. The court found that the plaintiff was entitled to the following judgment:

“That the defendants, Julia S. Manahan and Betsey M. Russell, are indebted to the plaintiff in the sum of $3,199.26 with interest thereon from September 13, 1897, at the rate of eight per cent, per annum. And the cause coming on to be heard on a motion for a new trial (the said motion having been filed within the time limited by law), the court on consideration overrules the same, to which ruling of the court the defendant, Julia S. Manahan, then and there excepted.
“ It is therefore considered by the court that the said William T. Hart recovered from the said Julia S. Manahan and Betsey M. Russell said sum of $3,199.26 and interest thereon from September 13, 1897, at the rate of eight per cent, per annum, and that said Julia S. Manahan and Betsey M. Russell pay the costs of this proceeding; for all of which execution is awarded. ’ ’

At the time this judgment was taken, Mr. Manahan, the husband of Julia S. Manahan, was still alive; but in November, 1901, he died; prior to that time he had lived in the state of New Jersey, and died insolvent. He left certain life insurance policies which he had taken out during his life in favor of his wife; and Mr. Hart now seeks, by proceedings in the state of New Jersey and in the state of New York, to subject the insurance money to the payment of his judgment. Thereupon the plaintiff, Mrs. Manahan, brought her suit in the Court of Common Pleas of Erie County against Hart, who is a resident of Erie county, seeking to enjoin him from proceeding with those cases, or with the collection of the above judgment; and it is claimed that, while the judgment is a personal judgment against Mrs. Manahan, that under the law of the land as it existed at the time the note was executed, the plaintiff was not entitled to a personal judgment against Mrs. Manahan, but-only to a judgment that should reach the estate that she had at the time the note was signed. The practical result of this would be, if the property which she owned at the time the note was signed was all gone, as now claimed, that the plaintiff would not be entitled to issue execution against any other property, whether a policy of insurance or other property that she has acquired or received since the date of the note; in short, that the only effect of that judgmnt would be to exhaust the separate property of which she was possessed at the time the note was executed, and having done that the judgment would be, so to speak, functus officio; that it would in fact be inoperative.

It is said on the other hand that under the laws as they existed when the suit was commenced, in 1897, that the plaintiff was entitled to a personal judgment against Mrs. Manahan that would enable the plaintiff to subject any property which she had at that time, or which she might thereafter acquire before the judgment was satisfied.

Now to go through all the cases and all the legislation would be a very long task. Counsel for the plaintiff, with great industry, has brought the legislation on the subject and the decisions in his brief to our attention, and the brief has proved of great use to us in investigating the questions arising in the case.

Now a great deal of this trouble arises from the obscurity in which the statutes have been left; and that arises from the habit, as it seems to us, that has prevailed in the Legislature in amending some one section of the statute, without looking to other statutes that may be affected by it. And, while in 1874, they passd a law that seemed to give the courts a right to render a personal judgment in all eases against a married woman, they left the law as it was in regard to her power to make a contract, and it was not until 1884, I think, that the law was changed, so that a married woman was allowed to contract as fully as a femme sole. In 1879, 76 O. L., 3, it was provided, under Section 28, that:

“Where a married woman is a party, her husband must be joined with her, except that where the action concerns her separate property or is upon a written obligation, contract or agreement, signed by her, or is brought by her to set aside a deed or will, or is brought by her to collect a legacy; or if she be engaged as owner or partner in any mercantile or other business, and the cause of action grows out of or concerns such business, or is between her and her husband, she niay sue or be sued alone. And in all cases where she may sue and be sued alone, the like proceedings shall be had, and the like judgment rendered and enforced in all respects as if she were an unmarried woman. And in every such case, her separate property and estate shall be liable for any judgment rendered therein t against her to the same extent as would- the property of her husband were the judgment rendered against him.”

Now while the act changed the code in regard to practice, the Supreme Court have held that was all it had accomplished and that it did not change the law in regard to the power of the wife to contract or clothe her with any greater rights than she had prior to the passage of that act. In Sticken v. Schmidt, 64 Ohio St., 354, the Supreme Court rendered a decision touching the question. In that case it appeared that in 1876 a Mrs. Kock signed a note to Mrs. Schmidt for $400, and that note ran along for a long time. Mrs. Kock was a married woman. Her husband afterwards died and left her some insurance money, and then Mrs. Schmidt concluded it was time to sue the note. She brought suit against Mrs. Kock. The only property that Mrs. Kock had in 1876 at the time she executed the note was an insurance policy on the life of her husband for $3,000. He had paid the amount of the premium until the year before he died; after that his wife paid it herself. She received that money and it was that money they were seeking to reach. The Supreme Court held that suit could not be maintained; that the wife had no property in 1876, because they held that policy of life insurance was not property within the meaning of the law. Judge Williams, in delivering the opinion, said, p. 357:

‘ ‘ Since the execution of the instrument, the powers of married women to enter into contracts, and the remedies thereon against them, have been materially enlarged. Under the law then in force, with a few exceptions not important here, they were incapacitated by coverture to create a personal legal liability by contract, or bind their general estate. The extent of their contractual capacity was to charge their separate estate, in equity, for their obligations; and the remedy was to pursue and subject such property to their satisfaction; personal judgment on which execution could issue was not authorized. (Citing authorities.)
“The personal property which then constituted a separate estate that 'the married woman could charge with her debts, consisted of such property of that kind as belonged to her at her marriage, or came to her during coverture by gift, bequest, or inheritance, or by purchase with her separate means, or became due as wages of her separate labor or grew out of a violation of her personal rights (68 O. L., 48).
“To give rise to an intention to charge her separate estate by her contract, and create such a charge upon it, it was essential that such property should belong to her at the time the contract was entered into. And it was the settled law that her engagement entered into when she had no separate property would not bind property thereafter acquired, nor would such after acquisition give validity to a previous engagement entered into when she was not the owner of a separate property. ’ ’

Then there was a discussion whether she had any interest by virtue of the policy of insurance at the time she signed the note which could be said to be property which she might charge; the court holds that she had no property, and he further says:

4 4 The principal reliance of the plaintiff is placed on the proposition that the insurance money, when paid to the defendant, took the place of the policy, and by relation became her separate property as of the time of the contract. This position, we think, can not be maintained. The augmented value of the policy arising from the payment of the premiums and performance of its conditions subsequent to the contract, resulting' in the final collection of the insurance money, was after-acquired property, which after-acquisition, as has already been seen, could not relate back so as to give validity to a contract invalid when made, or became chargeable for its satisfaction.”

The only difference in that case and this is practically that at the time the note was given, Mrs. Manahan did have some property in the partnership, as set forth in her answer in the original case. Now, I may say here before passing further, that this case of Hart v. Manahan (unreported) was taken by the defendants to the circuit court, and it was objected that no suit could be maintained against her, and that no judgment could be rendered-against her in personam. That case was very fully argued by Mr. Alford on one side and Mr. Kinney upon the other. The court at that time was composed of Judge Shearer, who sat in the place of Judge King, Judge Parker and myself. Judge Shearer was very earnest in his views that no personal judgment could be rendered, and cited Ankeney v. Hannon, 147 U. S., 118; but after a very full discussion of the matter, we came to the conclusion, a majority of us, to affirm the judgment, relying upon the ease of Patrick v. Littell, 36 Ohio St., 79.

Now, when this note was signed in 1879, the wife had no power to contract at law; the note was void; the only power she had was to charge her separate estate. The record shows that she had inherited property which was her own separate property; that she had invested it in the firm of Manahan & Breckinridge. Therefore, the suit might be maintained against her.

But how far is that suit to go; to what point? It would seem that in drawing the statutes or changing the statutes the Legislature supposed that by amending Section 28 of the code (see Sections 4996 and 5319, Revised Statutes.), that they could enlarge the remedy so that it would include property she might thereafter have and an execution might be levied against her the same as against her husband if the judgment was rendered against him, and there are some statements in some of these cases cited in Williams v. Urmston, 35 Ohio St., 296, and Patrick v. Littell, 36 Ohio St., 79, and some others where the general language is used by the judges deciding the cases that looks toward that result. Now, if she had no power to make a contract; if she only had power to charge her separate estate; if there had been an attempt made under the guise of amending Section 28 to enlarge her' liability and say because she might charge her present separate property at the time the note was given that that should operate to charge or render liable all the property she W'ould have in the future, it would seem that that would be changing the liability of the parties, change the results and effect of the contract and make her liability much larger than it was at the time the contract was made. I suggest that the statute, if so construed, would be retroactive in its character and might therefore be unconstitutional.

And that brings us down to the question on which there has been no decision directly of the Supreme Court, and is the vital question in this ease; and that is whether, by virtue of the note Mrs. Manahan drew, she charged only the property that she had at that time or whether thereby she charged evrything she then had or might have in time to come. Now, this note is a promise without charging anything. It did not charge anything in the future, or attempt to charge anything in the future. The holding of a majority of all the courts, we think, is that the wife only charges so much property as she has at the time of signing the note. It is termed an instrument in presentí and charges her then separate estate, and the authorities, in a majority of the eases, as I have said, are that it does not charge any after-acquired property; but if by special agreement or arrangement she agrees to charge her after-acquired property, some courts have suggested that might be carried out as an arrangement or intention, and ought to be given some effect. Ankeney v. Hannon, 147 U. S., 118, is the only ease we know of that touches on the Ohio statutes. That is a case that went up from the circuit court of the United States, southern district of Ohio. The cause of action arose at Xenia, Greene county, Ohio. In that case Joseph E. Hannon, Clara M. Hannon and William H. Hannon executed notes to the amount of $14,969.31, dated March 25, 1880 — just a year after this note in question here was dated — payable to the order of Joseph E. Hannon, subsequently transferred to the complainants before maturity. Mrs. Clara M. Hannon, when she signed the note, wrote on it “Mrs. Clara M. Hannon signs this note wdth the intention of charging her separate estate, both real and personal.” That case was taken to the Supreme Court of the United States. At the time she signed the note it appeared she had some property of but small value. But subsequently she received from her relatives, her father, perhaps, an estate amounting to $200,000. It was sought to collect this note out of it. The case was decided, opinion announced by Mr. Justice Field, who cites the statutes of Ohio at length. He cites the statute which provides for a separate estate and as to making a contract in regard to matters in which the estate was concerned, and so on. He says that in the case of Levi v. Earl, 30 Ohio St., 147, the Supreme Court of this state held that the provisions of the section I have referred to, passed March 30, 1874, and carried on down in different forms, does not enlarge the capacity of a ■woman to make contracts, except 'where it is -specifically mentioned. And he proceeds to say, p. 432:

“It has also been held by the Supreme Court of Ohio that Sections 4996 and 5319, Revised Statutes, which embody the provisions of the act of March 30, 1874, were intended simply as an amendment to the code of civil procedure and did not affect or enlarge the rights or liabilities of married women, but related merely to the remedy. (Citing eases.)
“The powers and liabilities of married women not being affected in any particulars, except those mentioned, by the legislation of Ohio previous to the execution of the notes in controversy, the defendant, Mrs. Hannon, did not charge her subsequently-acquired estate at law for their payment when she signed them in connection with her husband. Even if under the legislation in question, she would by the decision in Williams v. Urmston, 35 Ohio St., 296, which is said to qualify in some respects, the decisions in Levi v. Earl, have charged at law her separate estate existing at the time of the execution of the notes in the absence of the express statement in them that she intended thus to charge it, there is nothing in the legislative provisions adopted which enlarges her power at law to charge any future-acquired estate. The question then remains, to be considered whether her after-acquired estate is chargeable in equity. That is to be determined by the ordinary rules of equity, and we think it is clear that the contracts of married woman are not chargeable in equity upon their, subsequently-acquired estates. ’ ’

I will not stop to read the whole opinion; he cites cases and discusses them at length, and then holds that in eases .of this kind the wife does not charge her subsequently-acquired estate by signing a paper in the form in which this note was signed, lie goes on to say, p. 434:

‘ ‘ In this case, the amehded bill avers that the defendant, Mrs. Hannon, executed the notes in question, with the intention of charging her after-acquired property; but inasmuch as her contract is in writing, the averment can be regarded only as the pleader’s conclusion, which must be determined by the application of the law to the undertaking itself. There is nothing in the written agreement which makes any reference to an after-acquired estate.”

In conclusion he says, p. 436:

“In view of the considerations stated, and the decisions mentioned, and numerous others which might be cited, we are of opinion that in Ohio the separate property of a married woman could not be charged in equity by contracts executed previous to its existence, for the obvious reason that in reference to such property the contracts could not be made. The aftex’-acquired estate was not at the time available in a court of equity to meet the contracts, for at their date it had no existence.”

We think that is a clear statement of the law so far as our judgment may be of any value; we are inclined to the same conclusions, that is, we hold under the authorities cited, under the general principles of law, that Mrs. Manahan did not intend at the time she executed this paper to subject any after-acquired property to the payment of the debt. I say if I had this case before me now I would simply modify it so as to hold that she signed the note, and that whatever judgment was taken should only proceed against the property that she had at the time the note was made. The law, as I have said, has been somewhat obscure; but we think this view taken of it affords a rational, just and equitable conclusion in regard to the matter with reference to these parties.

Now there is another question that arises here of a good deal of importance, so that we mention it now. In this' case, this judgment was rendered in the Court of Common Pleas of Lucas County. This petition is filed in the Court of Common Pleas of Erie County to enjoin the collection of this judgment and proceeding with it, and it is claimed we have no power to modify this judgment in this action, and we have no right to enjoin a resident of Ohio from proceeding in a case in another state to collect his claim against a citizen of that state or any judgment he may have against that citizen. Mrs. Manahan is here and is in this court. Mr. Hart is a resident of this state and is here. While we do not seek to modify that judgment, yet we do hold that the judgment has become (perhaps a fair word, to use is) exhausted, or inoperative. It appears that the property that she held and had at the time the judgment was taken had been utterly exhausted, and that ended the validity of the judgment. To enable him to bring suit upon that judgment would be to enlarge her capacity to contract and to hold that she contracted at the time she signed the note for more than by the law of the land at the time she could contract, or could undertake. We see no reason why, the parties being before us, we may not enjoin the party from proceeding with the collection of the claim, or issuing an execution, in this state, or from proceeding in another state to enforce a judgment by suits upon the judgment, as required. We know there is come contradiction of the authorities upon the subject. The authorities upon the subject have been elaborately discussed; but we think that the better principle is that this injunction may issue. We know of no ease that better states our views of the law governing this case than the ease of Dehon v. Foster, 86 Mass. (4 Allen), 545; the syllabus is:

E. J. Marshall and E. B. King, for plaintiff.

Theodore Hoard and Malcolm Kelley, for defendant.

“This court has jurisdiction in equity, upon a proper ease being made, to enjoin a citizen of this commonwealth from availing himself of an attachment of personal property in another state, in an action against a debtor who is insolvent under the laws of this commonwealth, and thus preventing the same from coming to the hands of the assignee; and it is no objection that the action was commenced before the institution of proceedings in insolvency, if this was done with knowledge that such proceedings were about to be instituted, and with a view to obtain a preference.”

It is claimed here that some .letters had been written by Mrs. Manahan at a subsequent time in which she recognized the validity of this note. Sufficient to say here that those alleged letters, recognitions or promises, have never been sued on by the defendant in this ease and that question ought not to have any operation or effect upon this judgment.

A decree may be drawn enjoining the parties from collecting this claim.


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    EQUIVOCAL REJECTION OF A LEASE BY AN ASSIGNEE.
    [Circuit Court of Lucas County.]
    Abel M. Rawn, Assignee of Baird & Field, v. The Hotel Madison Company.
    Decided, January 25, 1904.

      Assignee — Gives Notice that He Will Not Accept Lease — But Thereafter Permits the Probate Court — To Order a Continuance of the Business Without Objection on His Part — And Offers the Lease for Sale — Assignee Liable for the Rent.

    Where an assignee for the benefit of creditors of a lessee of real property occupies the same, hut gives formal notice to the owner of the property that he does not desire to accept the terms of the lease, and indicates that he would consider better terms, and thereafter in a proceeding which was not adversary, permits the probate court, without objection on his part, to order a continuance of the business carried on therein, and has the lease appraised and offers it for sale and sells it, his action amounts to an obligation to pay the rent during the interim of his occupancy, and a verdict finding him liable for this rent will be affirmed.
    Parker, J.; Haynes, J., and Hull, J., concur.
   This action comes into this court on error. The action in the court below was by The Hotel Madison Company against Abel M. Rawn, assignee of Baird & Field, to recover rental on account of the occupation of the Hotel Madison by Rawn as such assignee, and the trial resulted in a verdict in favor of the plaintiff below for the amount' claimed, to-wit, $832.80, which included the interest.

It appears that Baird & Field had been occupying the Hotel Madison, as tenants of The Hotel Madison Company; that they became insolvent and made an assignment of all their property, including this lease and leasehold interest, to Abel M. Rawn, under the statutes of the state for the benefit of creditors. That after Rawn became assignee he continued to occupy the hotel property for the period on account of which this claim for rental is made, to-wit, from the 12th day of January, 1902, to the first day of August, 1902, inclusive. The lease under which Baird & Field occupied provided for the payment of a rental of $500 per month, and the amount recovered is at the rate of $500 per month for this period.

It is averred in the petition that Rawn, after he became assignee, continued to occupy under this lease. That is denied in the answer. It is admitted that the firm mentioned was in possession of the hotel property, and it is averred that soon after the assignment the defendant, finding that the lease described in the plaintiff’s petition had been executed, notified the plaintiff that he, as assignee, would not accept the terms of said lease and would not be bound by the same; and there are averments to the effect that at the instance and request of The Hotel Madison Company the assignee continued to occupy the premises for the period on account of which this action is brought for rental. And it is also claimed that the assignee occupied somewhat under compulsion — that is, that the assignee not only desired to give up the lease and the property, but that he desired to vacate the premises, and that by the order of the probate court, made at the instance of the Hotel Madison Company, he was required to continue the use and occupation of the premises, and, therefore, it is contended on behalf of the assignee that one of two conditions resulted from that; i. either that he is liable simply for a quantum, valebant, or that he is not liable at all, because, being in at the instance of the Hotel Madison Company, at its request, to preserve its property, for its interest, he must be held to have had this use of the premises tendered to him as a gratuity, and that therefore he is not liable to pay anything for the use and occupation; and it is also said in that connection that as a matter of fact the rental provided for by the lease was very excessive, more than any one could afford to pay for The premises, and that during this period the assignee lost money in running the hotel, and that if he is required to pay rental at the rate of $500 a month it will result in taking that much money that ought to go to other creditors and paying it to the Hotel Madison Company, in effect as if it were a preferred creditor, because it is to be paid as a part of the costs and expenses of administration. The whole question turns upon'whether the assignee elected — took such action as amounts to an election — to occupy these premises under the lease. If he did, then he is bound to pay the rental according to the terms of the lease. If he did not, if he rejected the lease, then perhaps one of the two possible results stated by the plaintiff in error would follow: either that he would be liable only for a quantum valebant or for nothing.

It appears that the lease in question was maae on the 18th day of September, 1900, to one Leona T. Field and that she subsequently assigned it to The Frisco Hotel Company. The lease provides that it may not be assigned without the consent of the lessor, and there is no formal assignment and no formal assent by the lessor to an assignment from the Frisco Hotel Company to Baird & Field, and therefore it is contended on behalf of the plaintiff in error that Baird & Field were not in fact lessees under this lease and that it was not an asset conveyed by the deed of assignment, and that, therefore, the judgment is wrong. But we are well satisfied from the evidence that Baird & Field had acquired the rights of the Frisco Hotel Company, with the assent of the Hotel Madison Company, and that by the agreement of Baird & Field with the Hotel Madison Company Baird & Field were occupying as tenants of the Hotel Madison Company under this lease at the time the assignment was made, and that, therefore, none of the parties were in a position to dispute that the rights of the lessees were assigned and conveyed by Baird & Field to Abel M. Rawn by the deed of assignment. Now it appears that the assignee, after accepting the assignment, continued, as I have said, in the occupation of the hotel. It seems that some time before that the boarding of guests by the lessees had been discontinued; that the guests of the hotel were generally roomers, some few being transients; that the assignee carried on the business during this time for which the rent was charged about as the assignors had theretofore carried it on. But it also appears that on June 16, 1902, shortly after the deed of assignment was filed, this notice was served upon the Hotel Madison Company:

“Toledo, Ohio, June 16th, 1902.
“The Hotel Madison Company;
‘ ‘ Toledo, Ohio.
“Gentlemen:
“At the request of A. M. Rawn, assignee of Baird & Field, you will notice that as such assignee he does not desire to accept the terms of lease of Hotel Madison. Will you please state the amount you will charge for the occupancy of the building by Mr. Rawn until such time as he is able to sell its contents, which are assets of the firm of Baird & Field! It is desirable that you make an early answer.
“Very truly yours,
“C. A. Thatcher.”

Richard Waite, as secretary of the Hotel Madison Company, acknowledges service of .this notice upon the same day.

The order of the probate court, to which I have referred, as it appears in the record, has no date; it reads as follows:

“In The Matter op The Assignment op Baird & Field.
“The. Hotel Madison Company through its attorney in open court having made application that the assignee in above matter be ordered and directed to continue the business of the assignors ; the court being fully advised and there being no objections offered, and the court deeming it for the best of all parties in interest, hereby orders and directs said assignee to continue the business of the assignors, and to furnish accommodations to guests now in said hotel and those who may thereafter apply.”

But in addition to this evidence indicative of the purpose of the assignee, we have his own testimony and certain other records introduced in evidence, which disclose that this proceeding in the probate court which resulted in this order was not adversary,as the order recites — there was “no objection offered” to its being made — and the assignee testifies, in effect, that he had gone to the probate judge and talked with him about this matter — about his situation there — and suggested that some order might be made that would protect him so that he might know what his responsibilities would be in the premises. His testimony upon that subject appears upon pages 23 and 24 of the record:

“Q. I understood you to say, in your direct examination, to Mr Thatcher — after calling your attention to this notice — he asked you why you didn’t follow it up, and you stated that you went to the probate court and consulted with him, and he told you you had better keep it open, and at that time this order was shown you ? A. No, sir; it was not.
“Q. If you made that statement, you were incorrect? A. Not necessarily; that order was made to put me right with the court; the court said he would have the order made; he had already made it verbally some time before this. I said to him I wanted it right and he said 1I will have the order made. ’
“Q. This was made at your request, in order to have something on record? A. I don’t know that it was made at my request.
“Q. You did ask to have something on record? A. Yes, I wanted something on record, to show what I was doing and why I was doing it.
“Q. This was the order that was made then? A. I expect it was; there was something made.
“Q. The court told you he would do that, did he? A. I think he did.
“Q. You were satisfied with that and went on with the business? A. I did before and I went on, and that is what I was doing—
“Q. And you went over and had a talk with the court? A. Yes — in order to have something definite.”

It appears from that and other evidence in the case that this was not an adversary proceeding. We regard that evidence as competent and as not contradicting the record of the probate court in any respect. But, moreover — and a matter of much more influence with us — it appears that the assignee offered for sale the property of the assignors, consisting of chattels and furnishings of the hotel, and that he was not able to make a judicious sale, and that thereupon he reported to the probate court that he would not be able to make a judicious sale unless he also sold this lease with the property; that persons who thought of buying the property had said to him, in effect, that they did not desire to buy it and be obliged to remove it at once, but if they could buy the lease giving them the right to occupy the hotel, they would feel disposed to buy the chattel property. And in pursuance of that representation to the probate court he was authorized to sell the lease and did sell it. Now it seems to us that this notice that he did not desire to occupy the property under the lease, and indicating a desire to obtain better terms from the Hotel Madison Company, is not an unequivocal rejection of the lease; and that this order of the probate court was not in the form of an injunction upon him in an adversary proceeding compelling him to occupy the hotel; but, in the light of his evidence, that it is an order apparently acceptable, if not positively agreed to by all parties concerned, and that his action in having the lease appraised— the leasehold interest — and offering it for sale and selling it, is an unequivocal acceptance under the lease; that he can not blow hot land cold with reference to this matter; that if the lease were rejected and made a dead letter it could not be revived afterwards to be sold; that if it were kept alive it was kept alive by virtue of the fact of payment or the assumption of an obligation to pay rental for this interim on account of which this action is prosecuted, and we think it very clear under this evidence that the verdict of the jury finding him liable for the amount of the rental sued for was right, and, therefore, the judgment of the court below will be affirmed.

Charles A. Thatcher, for plaintiff in error.

F. M. Dotson, for defendant in error.


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    JURIES IMPANNELED UNDER. WRONG LAW.
    [Circuit Court of Franklin County.]
    George T. Barlow v. The State of Ohio.
    Decided, February 15, 1904.

      Criminal Law — Jury Law of September, 1902 — Not Applicable to Offenses Committed Prior to That Date.

    One indicted for an offense committed prior to September 30, 1902, can not be tried before a petit jury impanneled, and under an indictment returned by a grand jury impanneled under the act of September 30, 1902, providing for the appointment of a jury commission for the selection of jurors.
    Sullivan, J.; Summers, J., and Wilson, J., concur.
   The plaintiff in error was indicted for embezzlement April 23, 1902. October 22 the grand jury returned another indictment for the same offense.

January 3, 1903, the first indictment was nollied and plaintiff was put upon trial in the court below on second indictment March 9, 1903. He was found guilty as charged in the indictment. A motion for new trial was filed, which was overruled, and he was sentenced to the penitentiary for the period of one year.

On the day set for trial (March 9, 1903) the accused filed a challenge to the array on the ground that the crime with which he was charged was alleged to have been committed on the 19th of February, 1902, and that on the — day of February, 1902, prosecution for the offense was commenced against him in police court of the city of Columbus, and on March 5, 1902, he was bound over to appear before the grand jury, and that he had ever since the date above named been in the custody of the court.

S. Hamberton, for plaintiff in error.

Taylor & Seymour, for defendant in error.

That on September 30, 1902, the jury law that was then in force when said alleged crime was committed was repealed by an act of the General Assembly, and an amended jury law was enacted for the appointment of a jury commission and the selection of jurors, which repealed the former jury law that existed at the time said alleged crime was committed.

That the grand jury drawn and impanneled returned the indictment in the case, and the petit jury selected and called to try the accused were each so selected, drawn and called under the act of September 30, 1902, in violation of the rights and liberty of the accused.

The facts stated in this motion were conceded to be true, except as to the rights and liberty of the. accused being violated thereby. The motion was overruled, and the accused put upon trial, to which action of the court the accused at the time excepted, and his exception was entered upon the record. The overruling of this motion is alleged as one of the grounds of error in the petition in error, and also set forth in the motion for a new trial.

The court erred in overruling this motion and the accused was prejudiced thereby. Bach v. State, 38 Ohio State, 664.

There are no other errors prejudicial to plaintiff in error apparent upon the record, and for the error alone stated it follows that the- judgment must be reversed and cause remanded to be proceeded in according to law.