text:
    (First Circuit—Hamilton Co., O., Circuit Court,
    Jan. Term, 1896.)
    Before Smith, Swing and Cox, JJ.
    PATTERSON v. INCLINED PLANE RY. CO.

      Pleading — Improper general denials— ,
    1. It is a practice generally to be condemned, although altogether too common, for a defendant, where a real denial of many of the allegations of the petition can not be made in his answer, simply to deny each and every allegation of the petition.

      Personal injury by negligence of St. R. R. employe — Ladi/s dress catching—
    2. Where, in a suit for damages for personal injury, ' it appears that the injury was caused by the plaintiff’s dress being caught in some way by the door or on the platform of the ear, while she was alighting therefrom, and the car being started by the conductor before she could free herself, in consequence of which she was thrown on her side and injured, it w.ould not be proper to charge the jury that the plaintiff’s failure to-gather up her dress while alighting from the car, which would probably have avoided the accident, if a careful and prudent lady would have done so, was negligence on her part as a matter of law, and would prevent a recovery by her. — What would be proper charges in such case.
   Smith, J.

The plaintiff, by her petition in error, seeks the reversal of the judgment rendered against her in the court of common pleas, for the reasons assigned that the court erred in refusing to grant her motion for a new trial, based upon the ground that the verdict of the jury was against the weight of. the evidence, and that the court erred in the charges given to the jury at the request of the defendant, and in refusing to give certain charges asked.for by the plaintiff below.

The action was one brought by the plaintiff against the defendant company, to recover damages for personal injuries said to have been received by her, while alighting from an electric car of the company, on which she had been a passenger, on the Main avenue in Mt. Auburn, which injury she claims was caused and brought about by the carelessness and negligence of the conductor of the car in this, that the car being stopped at this point to allow her to get off, as she-was in the act of stepping therefrom, her dress was caught in the door, or on the platform or step of said car, and before; she was able to loosen it, and while her legs were in contact: with the car, it started and tigutened the skirt of her dress-around her legs, and jerked her feet from under her, and threw her heavily upon the ground, on her right side, severely and permanently injuring her. That her fall was-occasioned by the negligence and gross carelessness of the conductor in catching her dress or in permitting it to be-caught in the door, or upon the platform or steps of the car, and in starting the car before her dress was free, and while-she was in contact with it. That by reason of this injury, she has already incurred an expense of $200.00 for medical' services, and she claims damages in the sum of $10,200.00. There was no allegation in the petition that the plaintiff' herself was free from fault.

The answer of the defendant, as is altogether too common-in such cases, and a practice greatly to be condemned where-a real denial of many of the allegations of the petition can. not truthfully be made- — simply admitted the corporate-character of the defendant, ard that it was at the time of the injury to plaintiff, (December 4, 1893), operating this street, railway, and denied each and every other allegation of the - petition. It did not aver by way of defense that the plaintiff in any-way contributed to the injury which she claimed to have received.

At the trial of the cause, as shown by the bill of exceptions allowed by the court, certified to contain all of the evidence received at the trial, together with the charge of the court given to the jury, the charges given at the request of' counsel for the parties, and those refused, with the exceptions taken to the rulings of the court complained of — there ■ was evidence tending strongly to prove the allegations of the petition of the plaintiff, as to the manner in which she received the injury — viz: That when the car which was going north, stopped at Albion place, to allow the plaintiff and two other passengers, (who alighted before her), to get off the car at the rear end, that as she stepped down upon the street, the skirt of her heavy woolen dress dragged upon the platform, or the single step, and was held there by some force, so that while the back part of her legs were still against the steps of the car, the conductor, who was standing upon the rear platform, and so that he was in full view of her, and with his hand on or near the bell rope, rang for the car to start, which it did, and by reason of the dress of the plaintiff being still on the platform or step of the car and held by some force, her dress tightened about her legs,- and before she could loosen it, which she tried to do, she was suddenly and with great violence thrown to the ground, and severely and permanently injured. It may further be stated that as she descended from the car towards the east, she was carrying a satchel or package in her right hand, and holding to the guard rail with her left hand.

I say that the evidence tends strongly to show this state of fact. On the other hand there was evidence tending strongly to show that the street which was paved with asphalt, was at the time covered with ice, and that the testimony of one witness was that the fall of the plaintiff was caused by her stepping on the icy surface of the street, and that she fell with her feet to the east, and towards the side-walk, and with her head towards the street car track. This was explicitly denied by the plaintiff, who insisted that her fall was caused solely by her dress being caught as before stated, and that her feet were thus drawn from under her, and that she fell and lay parallel to the track, and with her feet to the north, and her body about two feet from the track,and this evidence as to her position on the ground when she fell was supported by the evidence of several witnesses. There was not a scintilla of evidence that there was any act on the part of the plaintiff, negligent in its character, other than the fact that she did not take up the skirt of her dress as she descended from the car, and there was no proof offered by the defendant that women of ordinary prudence are accustomed to do this in alighting from a street car, while the plaintiff testified this was not the case. Thereupon, after the general ■ charge of the court to the jury,the trial judge at the request of the counsel for the defendant, and over the exception of the counsel for the plaintiff, gave to the jury certain special instructions on this point. The first was: “If the jury find from all the evidence in the case under the circumstances that existed at the time of the accident, that a careful, prudent lady would, have gathered up her dress skirts, and thus prevented them from either being caught or dragged on the platform of the car, and that the plaintiff failed to observe this caution, and the failure to do so was the approximate cause of her injury,she can not recover, and your verdict must be for the defendant.”

Waiving the question, in a case like this, where there was no issue raised between the parties as to any contributing negligence on the part of the plaintiff, whether the charge so given to the jury does not lay down the doctrine that a failure on the part of the plaintiff in this case to gather up her dress skirts, if a careful and prudent lady would have done so, was negligence as a matter of law, and would prevent a recovery by her, was proper, we think it very clear that the plaintiff was entitled to have the court give to the jury, the special charges which were asked by her counsel, after the foregoing charge had been given to the jury, but the court refused to do so. The charges so asked by the plaintiff were these:

“First. If might under some circumstances be contribuí tory negligence for a woman to permit her dress to trail upon the platform of a street car when she was alighting, but this-would be true only where there were facts and circumstances-surrounding her which she had knowledge of, or ought by the exercise of common and ordinary care to have knowledge of, which should cause her to apprehend danger in permitting' her dress to trail. ”

“Second. If the plaintiff was exercising ordinary care-when she was leaving the car, and had no cause to apprehend danger in permitting her dress to trail, she was not guilty of contributory negligence in so permitting it.”

We see no good reason for the refusal by the court to give-these charges to the jury. They state the law correctly, and had not before been given in substance,and if the charge-given at the request of the dpfendant’s counsel, was proper, which is very questionable, the limitations contained in these-charges asked by the plaintiff, should have been made. .For-is it possible that the law will make the doing of an act, entirely proper in itself and almost universally practiced, an act’ of carelessness on a particular occasion, when there were no--facts or circumstances which she had knowledge of,or which in the exercise of common or ordinary care she ought to have-knowledge of, which would cause her to apprehend danger from doing so?

If the injury to the plaintiff was caused by reason of the-fact that her dress was caught upon the step of the car, either from her own negligence or want of ordinary care, or while she was in the exercise of proper care, and there was-no negligence on the part of the company, this of course-would only be an accident or misadventure, and she would have no right of action against any one. But if she was entirely free from negligence or fault, and the company was negligent, and thereby caused the injury, it would be liable. It was then a very important question for the consideration of the jury, whether the plaintiff was negligent in allowing; her dress to trail, and if she was at the time, “exercising ordinary care,” in alighting from the car, as the charge asked for assumed, she could not have been guilty of contributory negligence in this respect, so as to prevent her recovering a verdict in the-case, if negligence on the part of' the company was shown in starting the car before she was. free from it, and the injury was thereby brought about.

The plaintiff asked the court to give other special charges, to the jury, which were refused. One of them was'this:

“The plaintiff was not bound to apprehend carelessness upon the part of the defendant. She had a right to rely upon the defendant having its platform in good condition, and free from obstacles of an unusual character upon which her dress might catch. She was not bound to apprehend that the conductor might start the car while her body was in contact with it, or until she was free from it and had reached a* position of safety. She was not bound to apprehend that she might do anything that would place her in jeopardy. On the contrary, she had a right to place full reliance on the defendant doing its full duty towards her, and exercising the high degree of care which the law requires of it.”

It seems to us that this is a clear, concise and correct statement'of the law applicable to this case, and that it was error to refuse it.

There is another matter in which it is claimed that the court erred to the prejudice of the plaintiff. As has been stated, the claim was made by the plaintiff that her fall was occasioned by the negligence and carelessness of the conductor, in catching her dress or in permitting it to be caught in the door, while she was on the end of the car and at the east-side of the car as it then stood, or upon the platform or step, of the car, and in starting the car before her dress was free,, and that thus her feet were drawn from under her, and she-was thrown to the ground. There was no direct testimony,, we think, from any witness showing how or on what the-dress caught, if such was the fact. The conductor expressly denied that he shut the door upon it, or that it was caught in the door, or on anything on the platform or step, or that there was anything on the platform or step that could catch it, and he denies that he stepped upon it. And yet there was proof of facts which strongly tended to show, that in some unknown manner it had caught somewhere, and in consequence of the starting of the car she was thus hurled to the ground.

On this state of fact the court at the instance of defendant’s counsel, gave the following charge to the jury:

“The jury are instructed that this case is to be determined upon the facts offered in evidence, and not upon any theory advanced to explain circumstances; that is to say, that before the plaintiff shall be entitled to-a verdict for any amount, the evidence must satisfy the minds of the jury that the defendant, its agents or employes had carelessly and negligently maintained or permitted some obstruction to be on or upon the platform or step of said car, whereby the dress of the lady in the act of leaving the car would be caught. The evidence must prove this fact. If it does not, and the defendant, its agents or employes, not being otherwise negligent in the discharge of their duty, and the plaintiff herself in leaving said car carelessly, neglected in the exercise of ordinary care to handle or take care of her dress skirts, and such negligence or carelessness of the plaintiff, was the approximate cause of her injury, she can not recover, and your judgment should be for the defendant.’’

And thereupon the counsel for plaintiff asked the court to charge .the jury as follows:

“The plaintiff in this ' case claims that her dress was held in some way upon the platform of the defendant’s car, and that the conductor negligently started the car while it was so held. If it was held upon the platform or step by some object or force, that is a separate and independent fact, and if you think the evidence justifies you in finding such to be the fact, you may do so, without determining how or by what it was held.’’

This the court declined to give.

Prescott Smith, Attorney for Plaintiff.

Miller Outcalt, Attorney for Defendant.

This we think should also have been given. The vital questions on this point were these: Was the dress so held in •any manner, and if so, was the conductor negligent in starting the car before her dress was free, and did this cause the injury? The manner or way in which it was caught, was in this point of view not material, and if the evidence justified the jury in finding that it was so caught or held, and that while so held the conductor negligently started the car, it was not essential to a finding in favor of the plaintiff on this point, that the jury should know or find how it was held.

A majority of the court is also of the opinion that the verdict of the jury was against the weight of the evidence, and for the reasons stated, the judgment will be reversed, and a new trial awarded.


source: Caselaw Access Project

author: Haynes, J.

license: Public Domain

text:
    (Sixth Circuit—Lucas County, O., Circuit Court,
    Jan. Term, 1893.)
    Before Bentley, Haynes and Scribner J.J.
    FANNY B. BOND v. ISAAC N. POE, et al.

      Officers and directors of corporations acting in good faith, are not personally liable in damages to stockholders for losses.

    Where the Board of Directors of a corporation to manufacture woodenware add to the business of the corporation the manufacture of sewing machines, requiring a large outlay of money, and involving great risks, but in doing so acted in good faith for what they considered the best interests of the corporation, and the stockholders were for years aware of the fact and acquiesced therein, such directors will not be held liable for the losses sustained by the corporation by such business.
    Appeal from the Court of Common Pleas of Lucas County.
   Haynes, J.

The plaintiff brings this suit on behalf of herself and, other stockholders of the Union Manufacturing Company, which is insolvent and its affairs being wound up and its - stockholders assessed to pay its debts in other actions.

The present action is against the president and directors-of that corporation to recover damages for alleged negligence -. and mismanagement by the officers and directors, of its ■ affairs and business, whereby it is alleged its stock was rendered worthless, its business ruined, its assets wasted and - its stockholders assessed large amounts for the payment of its debts.

The main questions arising upon the issues of fact, were • referred to a jury in the court of common pleas, which jury • found in favor of the defendants, and judgment being there- ■ after rendered by the court of common pleas for the defendants, the case was appealed to the circuit court and tried' upon substantially the same evidence. The circuit court. finding that the immense losses of the corporation were due ■ mainly to the fact that the company had added to its original wooden ware manufacturing, the manufacture and sale-of sewing machines on a large scale, which business was, in its nature, and in the usual manner of carrying it on, one-that required a large outlay and attended with great risks, and that the stockholders were for years well aware that the-company was engaged in said business, and acquiesced therein, and that the errors in its management were those of judgment, and were committed while the defendants were acting in good faith therein, and risking large sums of' money of their own, advanced to the corporation, and that they had not been guilty of such wrongful or negligent actions as to warrant their being held liable in damages.; personally, entered a decree in favor of the defendants.


author: Smith, J.

text:
    (First Circuit—Butler County, O., Circuit Court,
    April Term, 1896.)
    Before Smith, Swing and Cox, JJ.
    SECOND NATIONAL BANK v. AUGSPERGER.
    -On the facts stated in the opinion of the court, Meld:

      Appeal by one only of several parties below — Effect—
    1. That the appeal by Flanagan had the effect to bring into this court only the part of the case or the decree appealed from which affected him, and so far as he is interested the case stands for hearing as in the court below, and operated to bring up the question as to the amount of the lien held by the bank on the property purchased by him from George Augsperger.

      Mortgage left as collateral security with third party — Satisfaction of debt — Effect as to third party.

    •2. Where a note and mortgage are left as collateral security with another person by both the mortgagor and mortgagee, for a note given by both of them to such person, and afterwards the mortgagor in satisfaction of the debt so far as she is concerned, conveys to the mortgagee the land covered thereby, the mortgage as between them is satisfied, but is valid and binding in the hands of the pledgee to secure the debt for which it was assigned as collateral.

      Mortgage once satisfied, but used again, invalid as to subseguent Mortgagees.

    .3. W7here payments have been made on the note for which the mortgage is held as collateral, and after such payments the owner mortgages said premises to a building association to secure a debt, and the person holding the original mortgage as collateral fohis debt, makes further loans to the original mortgagor and mortgagee, and said mortgage is afterwards pledged therefor, without the knowledge and consent of the building association, and the ■ owner of the land then sold it to Flanagan subject to the building association mortgage, such original mortgage can not be held .as a lien on such land for subsequent advances, as against the building association or Flanagan, and the appeal of the latter '■brings up the question as to the amount due as against him.
    .Appeal from Court of Common Pleas, of Butler county.
   Smith, J.

This cause comes into this" court by an appeal taken by .Flanagan, and which has the effect to bring into this court ■ only the questions arising on the pleadings in the original case in which he is interested — none of the other parties having appealed. We-suppose that the findings of the common pleas, as to the other parties, as to which Flanagan has no interest, stand unaffected by the appeal.

The facts in the case as disclosed by the evidence offered in this court, are substantially these: About August 31, 1891, Elizabeth Augsperger was the owner in fee of lots ¿numbers 7 and 8 in Trenton, Ohio, and on that da y she executed to her son, George Augsperger, a mortgage thereonr to secure a note for $1389.96 of that date, owing by her to-him. On the same day the mother and son executed to the-Second National Bank a note for $650.00, and as collate! ah security therefor, they delivered to the Bank this note and mortgage for $1,389.96, which mortgage was duly recorded by the Bank, but afterwards it was withdrawn from the' recorder’s office by George Augsperger without authority. On March 9, 1892, Mrs. Augsperger conveyed those lots to George in fee, she however retaining and reserving a life interest in the east half of the two lots at a rental of $40.00 per annum. This we understand to have been in satisfaction-of the note held by him against his mother, and did operate-to cancel it, except so far as the rights of the Bank were-concerned; but no release of the mortgage or of any part: thereof was ever entered of record. On March 19, 1892,. George and his wife executed a mortgage on the lots to the Eaton Building Association. At that time the Association officers knew of the record of the $1,389.96 mortgage, but George represented that it was paid, and Judge Fisher, the-attorney of the Association, as a condition of his approval of the loan, required a release of the mortgage to be entered,, but for some reason, which does not appear, the loan was made-without a release having been entered. On September 14, 1893, Augsperger and wife, by general warranty deed, conveyed the premises to defendant Flanagan, GeorgeAugsperger,as averred by Flanagan, then representing that the said $1,389.96 mortgage was fully paid, and that he-would cancel it.

There was an issue raised upon the pleadings in the common pleas, as to which of the two parties, Elizabeth A-ugsperger or her son George, was primarily bound for the debt of the Bank — each claiming the other was. The court of common pleas found on the theory that $364.45 was still due to the Bank on their last renewal note; that of this sum Elizabeth was the principal debtor to the amount of $40.45,. and George the principal debtor for $324. We understand there was no objection to this, and no evidence was offered to us on these points.

A question arises as to the amount for which the Bank holds a lien on the mortgaged property. The original loan as for $650. It was renewed from time to time, the interest being paid, and sometimes a payment would be made upon the principal, and a new note be given for the balance and on------ 1892, the amount due on the note to the Bank was by payments thereon reduced to its minimum $■ — , but between this time and June 20, 1893, additional loans had been made by the Bank to George and Elizabeth Augsperger, and these additional amounts as well as the balance due on the assigned note,' were on June 20, 1893 included in one note, and signed by both of them, and the old mortgage note again pledged as collateral for this last note. And the question which arose at the hearing was, whether the Bank had any claim by reason of holding that collateral against the land for anything more than the minimium amount of their note of $650.00, after payments were made thereon with proper interest, and excluding any lien of the Bank for advancements subsequently made.

It would seem clear that when Elizabeth Augsperger conveyed to George the real estate, which was encumbered by a mortgage given to her by him, and which he then owned, that this would, as between the parties, operate as a cancellation of the mortgage without any express agreement that it should do so, because he then would be holding a mortgage on his own land. But if the note and the mortgage securing it, had, as in this case, been assigned to another, of course the rights of such person would not be affected by such conveyance by the mortgagor to the mortgagee. So it would seem that the Bank is entitled to a lien for the amount really due asa balance on its first loan,with interest, and perhaps as between the Bank and the two Augspergers it would be entitled to a lien for the further advances, though they were made after George became the owner, and this perhaps on the doctrine of estoppel. I do not see how it can hold any lien for such subsequent advancement as against a person who acquires title to the mortgaged property before such advancements were made, as did the Eaton Building Association. The lien of the Bank at the time the Building Association took its mortgage, was only for the amount, actually due at that time on its note,for which the mortgage note was held as collateral, and as against it, it could not be increased without its consent. This we understand to be substantially conceded, but it is claimed that the Building Association is not here to contest the additional lien, not having taken any appeal. But Flanagan who acquired title to the land after the advances were made, and who took the land subject to the Building Association’s mortgage,did appeal, and he is interested in having the rights of the Building Association properly settled, and if the decision of the common pleas of the question of the right of the Building Association was wrong and affects him as it does, his appeal brings it up, and he is entitled to have the rights of the Building Assocation, in so far as it affects him, adjudicated.

Judge Hume, for Plaintiff.

Morey, Andrews & Morey,lor Defendant, Mrs. Augsperger.

M. Vaughn, for Building Association.

Slaybaok & Harr, for Flanagan.

We conclude then that the Bank has a lien for this land, as against Flanagan, who took it subject to the Building Association, only for the sum of $■ — -,that being the amount to which the claim of the Bank was reduced by the payment of $ — ---, and it is entitled to a decree for the sale of the land, unless that sum,with interest at the rate named in the note of the Bank to this time, be paid. But the Bank is also entitled to a finding against Augsperger and his mother for the residue of the claim against them, As neither of these two appealed from the finding of the common pleas as to the amounts for which each was severally liable, the finding as to this stands, and will be adopted here.


text:
    (First Circuit—Warren County, O., Circuit Court,
    April Term, 1896.)
    Before Smith, Swing and Cox, JJ.
    PARKER v. FIRST NATIONAL BANK.

      Will construed—
    On the facts stated in the opinion of the Court, Held,that the will of James A. B, charged the 90 acres of land devised thereby to his son Joseph S. B., with the payment of §1,500 devised thereby to his sister P, the plaintiff, the same to be paid within one year after the death of the widow of the testator, without interest. And also with the payment of the one equal half of the legacy of §1,500 given by the will of Joseph B. to the children or heirs of the body of S., the sister of James A. B., on the death of the said S. should she die leaving children or heirs of her body surviving her. But said will did not make the payment of the one-half of the annuity or interest payable to S. during her lifetime, a lien or charge upon said 90 acre tract, devised to said Joseph S. B. And the interest of said Joseph S. B. in said 90 acre tract having been levied upon and sold on execution to pay off his debt, the purchaser who had full notice of the facts in the cáse, took said property subject to the said liens and ■charges so declared by the court.
    Appeal from Court of Common Pleas, of Warren County.
   Smith, J.

The question presented to us is, as to the proper construction to be placed upon the will of James A. Barnett, late of Warren County, Ohio, deceased, in the matter hereinafter particularly set forth. The facts in the case briefly stated are these:

Joseph Barnett was the father of James A. Barnett and ■Sarah J. Silvers. At the time of his death in 1870, he was the owner of a tract of sixty acres of land in Warren county. This land he devised to his son James A. Barnett, but directed that he should pay to his sister, Mrs. Silvers, the interest ($90.00) on $1,500.00, each year during her life, and at her death he was to pay the principal sum ($1,500.00) to her children or heirs of her body, if any. She is still living and lias several children, and all are defendants in this case These payments were, by the will, expressly made a lien and charge upon the said sixty acre tract. James A. Barnett accepted this devise,and paid the interest on the $1,500.00, to Mrs. Silvers up to the time of his death, March 2, 1893. He died leaving two children, the plaintiff, Mrs. Parker and a son? Jos. S. Barnett. At his death he owned a farm of 150 acres — viz: The sixty acre tract devised to him by his father, and ninety acres adjoining it —the first tract lying north of the Springboro road, and the second south thereof,

By his will he gave the whole 150 acres to his widow, Sarah P. Barnett for her life — and subject to her interest therein he gave to his daughter, Mrs. Parker, the plaintiff, the sixty acre tract, and to his son, the ninety acre tract, the last however subject to this provision: “As the south part is the most valuable of the two tracts, in order to equalize said legacies, I direct that my son pay to my daughter the sum of fifteen hundred dollars, payable within one year after the death of my wife, without interest.” — Item third: “There is a dower interest of fifteen hundred dollars in said farm owned by Sarah J. Silvers, the annual annuity of which is $90.00, and the principal to be paid, at the death of Sarah J, Silvers. Now, while my wife lives, said annuity must be paid out of the proceeds of the farm, If the principal falls due, it must be paid by my said son and daughter in equal shares.” These are the provisions of the will as to which the controversy arises.

The further material facts are, that said Joseph S. Barnett, Mrs. Parker and Mrs. Barnett the widow, accepted the provisions of the will, but the latter died August 23, 1893. The First National Bank of Franklin obtained a judgment against said Joseph S. Barnett, and levied on the ninety arces, and purchased it at sheriff’s sale, January 1, 1894„ with full knowledge of all these facts, and is still the owner of the same. The plaintiff has never received the $1,500.00, directed to be paid to her by Jos. S. Barnett, and the Bank. refuses to pay the same to her, although such payment was demanded of it by the plaintiff. The plaintiff has also paid to Mrs. Silvers, the one half of the interest or annuity due to her up to January, 1895, but the said Bank wholly refuses to pay the one half thereof, or any part of the saidjlnterest or annuity due to Mrs. Silvers.

The value of this ninety acre tract at the time of the making of the will and at the death of James A. Barnett, as compared with that of the sixty acre tract, was so much^more than the other, that if Joseph A. Barnett was bound to pay the $1,500.00 to his sister, and the one half of the principal and interest of the Silvers claim, the value of this devise of the ninety acres would have been greater than the value of that given to his sister.

The petition of the plaintiff seeks a decree against the Bank for the said sum of $1,500.00, with the interest thereon, and the sale of the ninety acre tract for the payment thereof, and that the court will find and decree that said ninety acre tract is also liable for and charged by said will with the payment of the one equal half of the principal sum of $1,500.00, payable on the death of Mrs. Silvers to her children, and for the one half of the interest or annuity payable to Mrs. Silvers, from January 1, 1884, and for other relief to which she may be entitled.

We do not understand that counsel for the Bank controvert the position,that if the will of James A. Barnett, when it devised the ninety acre tract to the son Joseph A. Barnett, made the*devise of land subject to the payment of the $1,500.00 to the plaintiff, and by the will he was also as a condition, or as a part of the scheme of the will, to pay the one half of the principal and interest of the Silvers claim, that it would operate as a lien or equitable charge on the land, and it would be liable for the payment thereof in the hands of the Bank, its present owner. Indeed we understand that it is now conceded that it is bound for the paymentof the $1,500.00 to the plain tiff, and this seems entirely -clear. It is claimed however, that there is no such direction in the will that Jos. A. Barnett was to pay the one half of the principal sum of $1,500.00 to the Silvers children on the ■death of their mother, or to pay to her, during her life, the ■one half of the interest, and therefore that there is no such ■charge on the land therefor.

It is further conceded, as we understand, that if the principal sum of $1,500.00 had become due and payable to the •children of Mrs. Silvers, on her death during the lifetime of Sarah Barnett, that the will did require it to be paid by Joseph A. Barnett and Mrs. Parker in equal shares, but that it is only in this event that he was to pay any part of the principal. But we are of the opinion that it was the manifest intention of the testator, that he was to pay the ■one half of such principal whenever it became payable. It is true that the provision in question reads that “if the principal falls due it, must be paid by my said son and ■daughter in equal shares. ” This we think ought not to have ■the construction that “if it fall’s due during the lifetime of his widow, ’ ’ but when it falls due, if ever. For it will be seen that the will of Joseph Barnett, the father of Mrs. Silvers, ■which provided for the payment of the principal sum, made it payable to the children or heirs of the body of Mrs. Silvers, and contained the express provision that “should there be none, then such payment is not to be made by my said son, •James A. Barnett. This is doubtless the contingency contemplated by the will of James A. Barnett as to its payment . This view is greatly strengthened by the fact that by the will of James A. Barnett his avowed purpose was to -equalize his two children in the division of his property, and that he would not have done so unless the son was to share in the payment of the principal of the Silvers claim if it became payable. We hold, then, that the ninety acre tract ■owned by the Bank is charged with the payment of one half of the principal of the Silvers claim, if itbeccmes payable.

Thomas Millikin and John E. Smith, Attorneys for Plaintiff.

J. D. Miller and George W. Stanley, Attorneys for Bank.

Whether it is bound for the payment of any part of the-annuity to Mrs. Silvers, is a more doubtful question, but we-are of the opinion that it is not. Nowhere in the will of' James A. Barnett is there any direction in express,or"as we think even implied terms that he should pay the one half of' the annuity to Mrs. Silvers. During the life of the widow, it was to be paid from the proceeds of the whole farm — thus in effect by the widow. While there is a statement requiring • him to pay one half of the principal if it falls due,[there is-nothing said as to the payment of the annuity after the death of the widow, and we can not read in the will a requirement that he shall do so. This leaves the burden of the annuity - upon the sixty acres where it was placed by Joseph Barnett, the son.


text:
    (First Circuit—Hamilton Co., O., Circuit Court,
    Jan’y Term, 1896. )
    Before Smith, Swing and Cox, JJ.
    HIRSH v. KILSHEIMER.

      Appeal to Circuit Court — Duty of clerk — Neglect of Clerk, effect—
    1. A party having given notice of appeal from the common pleas to the circuit court in proper time, it becomes the duty of the clerk, unless otherwise directed, after the expiration of thirty days from the entry of the judgment to make a transcript and file it with the other papers in the case in the circuit court; but where the clerk files the paper several days after the expiration of the • thirty days, his failure in this regard cannot prejudice the appellant.

      Same — Notice of appeal by Trustee — What sufficient—
    2. A trustee having given notice of his intention to appeal by an entry upon the journal, this was a substantial compliance with the provisions of section 6408, Revised Statutes, that a trustee • may, in such cases, appeal by giving written notice to the court -. of his intention to do so.

      On motion to dismiss appeal.
   Smith, J.

In these two cases — Nos. 361 and 362 — we think that the motion to dismiss the appeal should be overruled.

The cases were clearly appealable. They were brought by the several plaintiffs against the assignee of Minnie Hirsch, an insolvent, to require him to allow their claims in the settlement of said trust. The original assignee having been removed, and Mr. Carson appointed trustee in his stead, the latter was substituted as defendant in place of the original assignee, and he filed an answer denying the validity of the claims of the plaintiff. After the filing of the answers, Lang, Price & Go., who claimed to be creditors of Minnie Hicks, and who had required the assignee to reject the claims, were made parties defendant, but filed no answer. The case was tried on- the issues made by the petitions of plaintiffs, and answers of Carson, and the court found for the plaintiffs, and ordered the trustee to allow the claims. “And thereupon the defendant gave notice of an appeal to the circuit court, and the court fixed the amount of the appeal bond at $100, and thereupon said defendants, Lang, Price & Go., gave notice of their intention to appeal the case to the circuit court, and the court fixed the amount of the appeal bond at $100.” This is all of the entry on the journal of the court, relating to an appeal. These judgments and notices of appeal were entered August 12, 1895, and on September 19, 1895, the transcripts were filed by the clerk of the circuit court, but no appeal bond was filed by any defendant in either case.

The motion to dismiss the appeals were upon the grounds: 1. That neither of the defendants gave bond 2. That the appeal was not in the interest of the trust, but for the benefit of Lang, Price & Co. 3. That no notice of appeal was given by Carson, Trustee.

We think the notice of appeal was given by the trustee. He was the principal defendant, and may be the only proper one. He was the only defendant, who filed an answer, and the case was tried on the issue raised by his answer. The first notice of appeal mentioned in the Journal Entry, must be held to have been given by him, particularly as the only other persons who were in any sense defendants, gave a separate notice of appeal.

MilliJdn, Shotts, & MilliJdn, and Judge Humeioi motion.

ShepJiard & Morey, Andreios & Morey, contra.

We understand it to be conceded that Carson did give bond according to law, and that he had no interest in the controversy except in capacity as trustee. If not concluded, we will have affidavits on the subject. Both facts seem evident however, from the papers in the case. If this be so, he was not required by law to give a bond, and the order of the court filing the amount of bond to be given by him, was ■of no effect. If he did appeal in his own interest and not in the interest of the trust, he should have given the bond as fixed by the court, and not having done so, the appeal should be dismissed if this is made to appear. But we do not understand this to be claimed in reality.

Having given notice of his intention to appeal by an entry upon the Journal, this we think is a substantial compliance with the provisions of Section 6108 Revised Statutes, that a trustee may in such case appeal, by given written notice to the court of his intention to do so.

Having given this notice in proper time, it became the duty of the clerk, unless otherwise directed, after the expiration of thirty days from the entry of the judgment sought to be appealed from to make a transcript and file it with the other papers in the case in the Circuit Court. The clerk did this September 19, which was seven or eight days after the expiration of the thirty days. This was a substantial compliance with the statute, but if not the failure of the clerk in this regard cannot prejudice the plaintiff. The motion will be overruled.


author: Smith J.

text:
    First Circuit—Hamilton Co., O., Circuit Court,
    Jan. Term, 1896.)
    Before Smith, Swing and Cox, JJ.
    HARRISON, v. CHATFIELD.

      Assignee for benefit of Creditors, selling mortgaged land — Land' bought in by mortgagees — Contribution to costs — Poundage of' Assignee.

    An assignee for benefit of creditors is not entitled to poundage on the ■ purchase price of mortgaged land sold by him and bought in by the mortgagees, and it is therefore error for the court to include-the sales of land to such mortgagees in an order that T% Per cent, of the amount of all sales should be paid by the purchasers • to cover the costs of the sale, including court costs, advertising and attorney’s fees, extraordinary services of the assignee and. the fees of his attorney.
   Smith J.

This is a petition in error filed to obtain the reversal of' the judgment of the court of common pleas, in a case in which an appeal had been taken to that court from an order or decision of the probate court of this county in a proceeding brought by the assignee of Mrs. Chatfield, against the-assignor and sundry creditors of hers who held mortgages on different tracts of real estate, assigned by her to Mr. Harrison to sell the same for the purpose of paying the debts of' the assignor. The land was accordingly sold under the order of the court. Some of the various tracts were sold to the ■ persons holding "mortgages thereon, and in no case was the-purchase money of such tract sufficient to pay the debt secured by the mortgage. The other tracts were not sold to the-persons severally holding mortgages thereon, but to-strangers, and the purchase money was paid to the assignee,, and under the law he was entitled to commissions thereon. The assignee not having received or handled the purchase-money of that part purchased by the persons holding mortgages thereon, under the decision of this court in the case of' Shaw v. Build. Ass’n, 6 C.C.R. page 41, was not entitled to-any commissions thereon. If it had appeared to the court that services of an extraordinary character had been rendered by the assignee for the benefit of such mortgage purchasers, an allowance on such claim being proved, might have been made to the assignee therefor.

By its decree in said cause, made on the 2nd of May, 1893, • the probate court required each of the mortgagees who had purchased the property covered by'their respective mortgages, to pay into the hands of the assignee 7-J per cent, of the purchase price ($12,125.00), amounting to $909.38 to cover the costs and expenses of the sale1 of said tracts under said proceedings, including court costs, legal and special advertising, auctioneer’s fees, extraordinary services of the assignee, and the fees of his attorney for services rendered in said cause. No exception was taken to this by either party so far as appears, and no appeal taken therefrom.

On June 5th, 1893, the probate court made an order requiring said assignee forthwith to distribute the proceeds of the sale of the remainder of said real estate, $8971.00, then in his hands, less 7-| per cent, of the same, amounting to $673 00, retained to cover costs and expenses of the sale of said real estate, including court costs, and all other items of costs as set out in the order of May 2nd, 1893, as above stated. It further appears that on the distribution of said sum of $8971.00, the assignee claimed his statutory commissions, amounting to $299.18, but the probate court refused to allow any sum in addition to the 7-| per cent, theretofore named. From this refusal the assignee appealed to the court of common pleas.

We are of the opinion, judging from what appears in the record, that the costs in this case were not equitably and properly adjusted by the probate court, and that the mortgagees who purchased the property on which they had mortgages, were charged with too great a proportion of the costs of the case. Evidently they were not to be charged with poundage to the assignee on the amount of their purchases, while on the fund produced by sales to others he was entitled to commissions, and notwithstanding this the purchasing mortgagees are in effect charged with the assignee’s commissions on the amount of their purchases, by charging them with the same percentage on the amount of their purchases as was charged to the other funds. Our idea is that in a case like this, the court should ascertain the amount of costs which the purchaser of each tract, or the fund produced thereby should pay,and an order be made accordingly. But as no appeal was taken from the order of May 2nd, 1893, by the purchasing mortgagees,the same is final and conclusive.

Was the action of the court of common pleas, on the appeal taken from the order of June oth, right?

The bill of exceptions taken on the hearing in that court, shows the facts hereinbefore stated. That is, that there was in the hands of the assignee under the orders of the court, to pay the costs and expenses of the sale of the real estate, including court costs,auctioneer’s fees,extraordinary services of the assignee, and the fees of his attorney for services rendered in the cause, the sum of $1582.43. There was no evidence whatever submitted as to what these costs would amount to. For all that appeared there may have been more money in his hands than would have paid the claims for which the amount named was to have been applied and the commission of the assignee on the $8974.00. The order of the probate court did not find that he was not entitled to receive such commission, but that the same was to be paid from the 7-|- per cent, then in his hands, amounting as stated to $1582.43, and such in effect was the order of the common pleas court. But the order as made by the court of common pleas was that the appeal was not well taken, and dismissing the same. This was evidently by misapprehension, and was probably the mistake of counsel who drew the entry in this form, instead of making it a finding for the defendants in error on the merits; for there was no motion to dismiss the appeal, or any suggestion or showing that the matter was one that could not be appealed, or that the proper steps to effectuate the appeal were not taken. The judgment therefore dismissing the appeal will be reversed,but the bill of exceptions, containing the agreed statement of facts on which the case was heard, showing that the claim of the assignee was not made out by the evidence, this court proceeding to render the judgment which the court of common pleas should have rendered,finds for the defendants.

Harrison & Aston, for Plaintiff in Error,

Stephen Coles, for Defendant in Error.


text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Smith, Swing and Cox, JJ.
    CLARIBAL IVES v. MARGARET C. McNICOLL.

      Adulterine Bastard legitimized by the subsequent marriage of parents.

    Under sec. 1175 Rev. Stat., where a man has by a woman one or more children, and afterwards intermarries with her, such issue, if acknowledged by him as his child or children, is deemed legitimate even where one or both of the parents were otherwise married at the time of the illicit intercpurse. /'

    Error to the Court of Common Pleas of Hamilton County Ohio. /
   Smith, J.

The question in this case is simply this-. Whether on the facts found by the trial court, Margaret C. McNicoll, the defendant in error, is the legitimate daughter of Henry Mc-Nicoll, deceased, and therefore as such entitled to a share in the real estate in this city, described in the petition in the case, which was devised by the will of Peter McNicoll, deceased, to his son, the said Henry McNicoll, for his lifetime, and at his decease to go to the heirs of his body in fee simple. The facts as found by the trial court, material to the case, briefly stated are these: Peter McNicoll at the time of the making of his will, and at his death, was a citizen dí and resident of Hamilton county. His son Henry was also a citizen and resident of said county from 1870 until 1890. The next two years he lived in Dayton, Kentucky, and then moved to Clermont county, Ohio, where he resided until his death, December 19, 1893. In 1855 he was married to Mary Gralbreath, and the plaintiff in error is the only offspring of such marriage. In 1803} his said wife was divorced from him by a decree of the court of common pleas of Hamilton county, Ohio.

Elizabeth Meyer is the mother of Margaret C. McNicoll. She was married December 13, 1867, to one S. P, Reasoner. He was a soldier in the United States army for some time, but was continuously absent from his wife, in the south, from July 13, 1869, and his said wife from 1869 to 1878 was a resident of the State of Kentucky, and always therein, and during that time never saw her said husband. In 1875 and thereafter, Henry McNicoll had illicit relations with Mrs. Reasoner, and was the father by her of the said Margaret McNicoll, who was born in Newport, Ky., September 10, 1,876. In 1878, Mrs. Reasoner, with her daughter, removed to Cincinnati, and on April 23, 1889, she obtained a decree o'f. divorce from "her husband by the judgment of the court of \common pleas of this county. On the 27th of .June, 1889„. the said Henry McNicoll and Mrs. Reasoner ■were married! in Covington, Ky., both of them being then residents of Hamilton county. At all times from her birth 'in 1876, until his death in 1893, Henry McNicoll recognized and acknowledged!, said Margaret as his child, and after his marriage to her mother, the daughter resided with him in his family, and he provided for her support, and by his last will recognized her as one of his heirs and devisees. The plaintiff and the defendant are the only children or descendants of said Henry McNicoll who survive him,

The statute of the state of Kentucky, in force during all of this time (Revised Statutes sec. 1398), isas follows: “If a man having had a child by a woman, afterwards marry her, such child or its descendents, if recognized by him before or after marriage, shall be deemed legitimate.” It was also found by the court as a fact, that the court of appeals of that state, in 1887, in deciding the case of Sams vs. Sams, reported in 85 Kentucky Reports 316, held and decided, that this statute did not apply to a case where a man had children during the coverture of the man with another woman, and who might after-wards marry; and that such is now the law of the State of Kentucky.

The court of common pleas on this finding of facts, having held and adjudged that Margaret McNicoll was the legitimate child of Henry McNicoll, and as such was entitled under'the will of Peter McNicoll to a share of the real estate described in the petition, this proceeding in error is brought, seeking the reversal of such judgment.

During all of the time mentioned in the finding, the statute of Ohio has provided, in substance, as it now stands in section 4175, Revised Statutes: “When a man has by a woman one or more children, and afterwards inter-marries with her, such issue, if acknowledged by him as his child or children, shall be deemed legitimate; and the issue of parents whose marriage is deemed null in law, shall nevertheless be legitimate.”

The first question which naturally arises is, whether the legitimacy or illegitimacy of the plaintiff below is to be settled by the provisions of the Ohio or of the Kentucky statute. Peter McNicoll, under whose will the controversy arises, was a resident of this st^te, and the land devised by it was situated in this county. Henry McNicoll, the father of Margaret, was a resident of Ohio when the child was begotten and born, and both the father and mother were residents of Onio when they were married to each other, and while a resident of this state the father acknowledged her as his child — before and after his marriage to her mother. It seems to us clear therefore, in the light of the many authorities cited by counsel for defendant in error, and which we do not deem necessary to mention, (for as we understand the contrary is not insisted upon), that the statute of his state is the one which must govern in ’this case.

If this be so, we are not able to see why the facts stated do no bring this case clearly within the letter (at least) of the statute we have quoted. Surely Henry McNicoll had by this woman, this child, and afterwards he married the mother, and acknowledged the child as his own. Why in accordance wiN the language of the statute is she not to be deemed legitimate? The statute says she shall be, and how shall we escape from it?

But it is urged by counsel for plaintiff that it ought not to receive such construction, for several reasons. First, That it could not have been the intention of the legislature to provide that where from the illicit and criminal intercourse of .persons, one or both of whom were then married to another person or persons, a child was begoiten and born, that the subsequent valid marriage of the man and the woman, and the acknowledgment by him of the child as his, should legitimate it, for the reason that this would tend to encourage such illicit and criminal intercourse between persons who could not at the time lawfully intermarry. That it would be against public policy to do this, and such intention can not properly be imputed to the legislature. Second, That at common law the doctrine was, “once a bastard, always a bastard, and that statutes changing this are to be strictly, construed, and as the civil law on which the statute in question is based, did not operate to legitimize adulterous bastards and the Louisiana civil code and the code Napoleon, which are based thereon, expressly provide that the marriage of the parents and acknowledgment of the child shall not legitimate such issue, that these are strong reasons why the same interpretation shall be given to our statute; and third, that the decision of the supreme court of Kentucky, in the case of Sams vs. Sams, 85 Ky. 396, construing the Kentucky statute above quoted, and which is practically conceded to be in substance the same as the Ohio statute, and on a state of fact almost the same as exists in this case, was, that it did not apply to the fruits of an adulterous intercourse, and that this interpretation has received the sanction and approval of courts and law-writers of high authority, and that there is not good authority to the contrary— and for these reasons the same interpretation should be placed upon the Ohio statute.

It can not be denied that there is plausibility in these claims which were urged upon us with much force by the counsel for the plaintiff in erorr. But if the legislature has said in clear and unmistakable language, and without any exception or qualification, as we think it has done, in effect, that if the father of a bastard child, afterwards’ marries the mother and acknowledges the child as his, that it shall be deemed his legitimate child,how can a court, called upon to apply the statute to a particular case, read into it exceptions or qualifications, which the legislature has not seen proper to place there? And especially upon the ground that in the opinion of the court public policy would demand that they should have been there, or that to make the statute conform thereto, they should be read into it? It seems to us that this would be going directly in the face of numerous and clear decisions of our own Supreme Court. See the cases of Patton vs. Sheriff, 2 Ohio 395; Hurd vs. Robinson, 11 Ohio St. 23; 2 Woodbury vs. Barry, 18 Ohio St. 456; Bridge Co. vs. Bowman, 41 Ohio St. 37; and the case of Deem vs. Millikin, 6th C. C. Rep. 357, which was affirmed by the Supreme Court on the reasoning of the judge delivering the opinion of the Circuit Court. See 34 Law Bull. 262. The doctrine of these cases, as we understand, laid down with great force and clearness, is to the effect that it would be highly improper for a court called upon to construe a statute, which in its opinion, as it apparently stands, is inconsistent with its ideas of policy or justice, to distort the language or its evident meaning, in such manner as to give it a construction consistent with its own ideas of justice or policy. Or, as stated by Judge Hash in announcing the decision of the court in the Bowman case (41 Ohio St.37): “If the language used by the legislature in a statute is precise and unambiguous, we conceive it to be our.duty to interpret the words in their natural and ordinary sense, although-the result may conflict with our ideas of public policy. See also the language used by Judge Shauck in the decision of the case of Deem v. Millikin above referred to, on page 359-60.

But why should such a provision as this in our statute,if it be held to embrace a case of the kind before us,be deemed to be against public policy ? In the first place,it seems to us to be entirely consistent and in line, with the clear and acknowledged intention of the legislature in its enactment,, viz: to remove the burder and disgrace of illegitimacy from those who themselves are innocent, though they were begotten in the illicit, or even the criminal intercourse cf their parents. Can it not as truly be said that when our statute provides, as ‘it does, that where a child ip the result of such illicit intercourse between unmarried persons, it may be made legitimate by the marriage of the parents, and the acknowledgment of the father that it is his child, that this is an encouragement of such illicit relations, and therefore is against public policy,- — ns in a case like that before us. It is true the offense of the parents may not be so great in the one case as in the other, but this is a question to be deter-, mined by the legislative authority. It seems to us not to be against public policy, but a wise exercise of power to do this, and thereby that the brand of illegitimacy may be removed from the innocent offspring in the one case as in the'other. The fact that the degree of criminality of the parents is not to prejudice such offspring, we think is apparent from the whole section, for by the last clause it is provided that even where there has been a marriage between persons, absolutely null and void at law, as where the parties one or both were married at the time, or the marriage was incestuous it may be, and children of this null marriage are born to them, they are legitimate. This shows how solicitous and careful the legislature has been to protect the interests of such unfortunate children, and to make them legitimate —not to encourage the guilty, but to favor and restore the innocent; and the same considerations operate upon and influence courts, in cases where questions of this kind are presented. See 17 Ohio St. 448; Cope vs. Cope, 137 U. S. 682; 43 Ind. 516; 96 Cal. 532.

It is true that this section of our statutes is in derogation of the doctrine of the common law on this question, but we see no reason on this ground, for giving it an unreasonable construction or for introducing into it, provisions which the legislature in its wisdom, and in the exercise of its undoubted power has left out; and particularly is this so, when it would seem that the exception which it is sought to have en-grafted therein, would be in opposition to the general spirit of the statute as we understand it. And the fact that our statute, in some of its features, may have been taken from the civil law, which excepts from its operation children born of an adulterous intercourse of their parents, is not of weight when- we remember that such exception is not brought into our law. If such had been the legislative intent in providing as to the question of subsequent legitimacy, why was such an exception not put into .the statute as was done in the Louisiana code and the code Napoleon,referred to by counsel for plaintiff in error? That it was not, seems to us a weighty reason for the conclusion, that no such exception to the general rule prescribed by it, was intended,

It is also true that tne fact that the supreme court of Kentucky, passing on their statute so similar to ours, held that it did not apply to the case of adulterous bastards, and that other judges or courts or law writers may have approved the same, is entitled to the careful consideration of a court passing upon the Ohio statute — not decisive of course as to the interpretation that should be placed upon it, but as the view taken of it by persons learned in the law, and-persuasive in its character.

It must be admitted that the decision in the Sams case referred to, clearly and distinctly holds that their statute, so like our own, ought not to receive the construction that it was intended by the legislature to include in its terms adulterous bastards, or to provide any way in which they might become legitimate. But we think that this ruling of •the court was based upon the ground, that in their view it would have been against good morals and public policy to so legislate, and that such intention should not be imputed to the legislature. We have already expressed our opinion upon this point, referring to Ohio cases with the view of showing that in a case like that before the court, this is not a proper method of arriving at the intention of the legislature, where the language used is broad enough to cover the case; and we think the decision of the same judge in another case reported in the same volume with the Sams case, Harris vs. Harris (85 Ky. 49), states the proper rule as to this. And if authority, additional to that from our own state already cited, were needed, the decision of the Supreme Court of the United States in the case of Brewer vs. Blougher 14 Peters 178, in a case involving the right of children of an incestuous connection to inherit under the provisions of a statute which made illegitimate children capable of inheriting, and where it was claimed it could not apply to the issue of incestuous marriages is in point. The court in -the third paragraph of the syllabus, says: “It is undoubtedly the duty of the court to ascertain the meaning of the legislature from the words used in the statutes, and the subject matter to which it relates; and to restrain its operation within narrower limits than its words import, if the court are satisfied that the literal meaning of its language would extend to cases which the legislature never designed to include in it, According to the principles of the common law, an illegitimate child is filius nullius, and can have no father known to the law; and when the legislature speaks in general terms of children of that description, without making any exceptions, the court is bound to suppose they design to include the whole class.” And Chief Justice Taney in the opinion rendered, uses this language pertinent to this case —page 198: “To this extent, therefore, the right to inherit is given by this act of assembly, and it would appear to have been given upon the principle, that it is unjust to punish the offspring for the crime of the parents. The right of the children therefore is not made to depend upon the degree of guilt of which they were the offspring. All illegitimate children are the fruits of crime, differing indeed greatly in its degree of enormity. And the legislature, if it had seen proper to do so, might undoubtedly have made the right to the inheritance to depend upon the character of the offense committed by the parents. But they have used no language showing any such design. On the contrary, they appear to have looked at the unoffending character of the children, rather than at the criminal conduct of the parents of whom they are the offspring.”

So far as we are advised the decision in the Kentucky case is the only one that sustains the claim of the plaintiff in error. It is urged that it was directly approved by Justice Brown in the Cope case (137 U. S. 685). But we think this was hardly the case. The. case before that court was not like this, and he same question was not presented or decided. The question there was as to the power of the legislature of the territory of Utah to pass a law providing that illegitimate children and their mothers inherit in like manner from the father, whether acknowledged by him or not, pro-' vided it shall be made to appear to the satisfaction of the court that he was the father of such illegitimate child or children;” and it was held to be valid, and in the decision Justice Brown says: “and if the question of parentage be satisfactorily settled, there would seem to be power in the legislature to endow even the children of an adulterous intercourse with heritable blood;” and then follows the language relied upon by counsel for plaintiff in error as approving the doctrine of the Sams case, viz: “Legislation admitting illegitimate children to the right of succession is undoubtedly in derogation of the common law, and should be strictly construed; and hence it has generally been held that laws permitting such children whose parents have since married to inherit, do no apply to the fruits of an adulterous intercourse. Sams vs. Sams, Exrs, 85 Ky. 396.” It will be noted that he makes no reference to any other case or authority in support of the statement, and it is a noticeable fact, too, that in the case thus referred to, the judge delivering the opinion does not cite any authority in support of his conclusion, nor does the counsel who were successful in that case. It seems to us that what is said can not be construed as an approval of the doctrine of the Sams case in any sense; and what is said by the Justice immediately following the passage quoted, is fully in line with the authorities herein before cited as to the duty of courts in construing statutes. He says: “But while it is the duty of courts to put a construction upon statutes which shall so far as possible be consonant with good morals, we know of no legal principle which would authorize us to pronounce a statute of this kind, which is plain and unambiguous upon its face, void by reason of its failure to conform to our own standard of social and moral obligations. Legislatures are as competent as courts to deal with these subjects, and in fixing a standard of their own, are beyond our control.” And then he approvingly refers to the opinion of Chief Justice Taney on this point in 14 Peters, before given. In our opinion then the decision in the Sams case, is the only authority for such a holding.

On the other hand the view that a statute similar to our own, and as broad in its terms, embraces a case precisely similar to that before the court, and that the court in interpreting it is not at liberty to interpolate exceptions against the legitimacy of adulterine bastards was clearly upheld in the case of Hanbecker vs. Hanbecker, 43 Md. 576, and after-wards cited approvingly by the same court in the case of Scanlan vs. Walsh, 31 Atlantic Reporter 498. The same was done in the case of Blythe vs. Ayres, 96 California 532, and we quote from the language of the opinion in this last case, found on page 570: “A similar principle is applied to the- legitimacy of children by a subsequent marriage. The provisions of section 215,' (which provides that ‘a child born before wedlock becomes legitimate by the subsequent marriage of its parents’), w'ould operate upen and legitimate a child born of a father who at the time of its conception and birth was the husband of another woman, or would apply to an incestucus bastard. Such was expressly declared to be the law under a similar provision of a state statute in the case of Hanbecker vs. Hanbecker, 43 Md. 576, the court saying: “No doubt the legislature in thus mitigating the severe rule of the common law, intended to hold out to the sinning parents an inducement to marry, and thus put a stop to the mischief of further illicit intercourse between them, but in our opinion the main purpose and intent-of the enactment we are now considering was io remove the taint and disability of bastardy from the unoffending children whenever their parents did marry, without regard to the deepness of guilt on the part of their parents in which they were conceived and born. Such a child under the common law would be deemed an adulterine or incestuous bastard, incapable of legitimation,and in the courts of certain countries where that law controls, would not be recognized as legitimate. ”

We think then that the weight of authority oiitside of the decisions of our own state is clearly with the defendant in error. The particular question has never been before the Supreme Court of this state, but in two cases it has adjudicated as to the construction to be placed upon the last clause of the statute under consideration (Section 4175), which provides that“theissuPof parents whose marriage is deemed null in law, shall nevertheless be legitimate.” Wright vs. Lore, 12 Ohio St. 619, and Morris vs. Williams, 39 Ohio St. 554, The court in these cases held substantially that the words used in the statute, must have a literal interpretation, and embraced cases coming within its language, and (in the last case), withoutany qualification on any supposed ground, that it could not have been the intention of the legislature to provide for legitimizing issue by a subsequent marriage of slave parents, who by the law of the place of the marriage, were incapable of contracting. Judge Okey says: “But we are unwilling to place any such limitation on the words of the statute. It is a familiar rule in the construction of statutes, that the language, where clear and comprehensive, is not to be limited in view of the particular instances which may be supposed to have lpd to its adoption, but the act should be held to embrace all cases coming fairly within its terms, if they are also within its reason and spirit.” This also shows the view entertained by that court as to the mode in which the whole statute should be construed,

Kittrexlge & Withy, for Plaintiff.

Robert Ramsey, Joseph W. O’Hara and John Nichols for Defendant.

We have not deemed itjjneceesary to refer to all of the numerous authorities cited by opposing counsel.[ Many of them will be found in the decision of this case by Judge Kumler in the court of common pleas, reported in third Ohio Nisi Prius Reports, page 6,

The judgment of the court of common pleas will be affirmed.

Judge Swing is of the opinion that while this case comes within the letter of the^statute,'if is not within its spirit, and that such is the weight of authority, and dissents from the judgment of affirmance.

e