text:
    (First Circuit — Hamilton Co., O., Circuit Court
    January Term, 1886.)
    Before Judges Gox, Smith and Swing.
    The State of Ohio ex rel. John B. Mannix, v. Herman P. Goeble, Judge of the Probate Court of Hamilton County, Ohio.
    1. When an assignee for the benefit of creditors, files in the probate court his account current and vouchers for settlement, and before such settlement he resigns his said trust and new trustees are appointed by the court, and thereupon exceptions are filed to such account, and a trial thereof had, such court has authority under Sec. 6341, Rev. Stats., to settle said account, though it was not formally re-filed after the resignation of such assignee. The acting upon it as such account, by the court and the resigned assignee, is equivalent to a re-filing of it after the resignation.
    2. But such court is not authorized by said section to do more than settle the account, and can not legally enter an order directing the late assignee to pay the balance found in his hands to his successors in the trust, and thereby, in case the late assignee desires to appeal from the finding as to a part oí the exceptions, make it obligatory upon the probate court, under the provisions of Sec. 6408, to fix the amount of the appeal bond to be given by him, at double the amount of the balance found in the hands of such late assignee.
    On application for a writ of mandamus.
   Smith, J.

Judge Cox has just requested me to state the conclusion to which we have arrived in this case. I had not expected to do so, and have not my ideas upon the matter very well arranged, but will endeavor to give our views on the' question involved.

On the application of the alternative writ, the case was quite fully presented by counsel, and Judge Cox then stated the grounds upon which we thought it right to grant it; the questions have since been more fully'argued by counsel, after the filing of the answer of the defendant on the question whether a peremptory writ should issue, and what I shall say, as to some of the questions, may only amount to a repetition of what has been better said by the presiding judge heretofore.

The principal question involved is this: Whether, when exceptions are filed to the account of an assignee of an insolvent estate, and such exceptions are sustained, and the items excepted to are stricken from the credit side of his account, and the court thereupon proceeds to settle the account on such basis, and finds an amount due from the assignee, (who at that time, however, had resigned the trust), and makes an order that the resigned assignee should pay the sum thus found to be due, to his successors in the trust, it is obligatory on the probate court under the provisions of Secs. 6407-8, Rev. Stat., (in case the resigned assignee desires to appeal from any of the findings against him,) to fix the amount of the appeal bond to be given by him, at double the amount of the same so directed to be paid.

The petition filed in the case, after reciting other matters, states that after the judgment was rendered, the relator represented to the court that he desired to appeal therefrom; that he desired to appeal from the finding as to the amount, and as to the finding on the exceptions filed to his account; but that he did not desire to appeal from the order of the court directing him to pay the money found due, to his successors in the trust. And he attaches a copy of the journal entry of the court on the point. It is as follows :

“ And said John B. Mannix gives notice of appeal from said order sustaining said exceptions to such account. And also gives notice of appeal from the finding and order that the statement of account as prepared by the court and attached hereto, and made part of the entry and of the record, is a correct statement as a whole, and in every part, of the receipts for which he is to be charged, and the expenditures for which he is to receive credit, as assignee of John B. Purcell, and of the interest chargeable in said account.”
Said John B. Mannix also gives notice of appeal from the finding and order, that on the 1st day of June 1886, he, as asgignee of said John B. Purcell was indebted to tbe estate of said John B. Purcell in the sum of $55,827.46. And the court fixes the bond in appeal at the sum of $111,554, being an amount double the said amount ordered to be paid by the said John B. Mannix, assignee, to the said trustees. To the order of the court fixing said appeal bond in said sum the said John B. Mannix excepts.”

In the decision of Judge Cox heretofore announced, he stated that we had some douht, whether it sufficiently appeared from the entry, that -the probate judge had fixed the amount of the bond to be given in this case at double the amount found hy the entry to be in the hands of the late assignee, because he was obliged so to do. But we are of the opinion that the answer filed in the case by the probate judge, frees the case from the difficulty then suggested; as it admits “ that he refused in this case, to fix the amount of the bond to be given on the appeal at less than double the amount found to be due from the late assignee, holding the order made by him to be single and inseparable as the decision of the said probate court, upon the question of the amount due from relator, to be paid over as required by law.”

It is objected, however, by counsel for the defendant, that even if it be admitted that the view of the prohate judge was incorrect, and that he had authority to fix the amount of the appeal bond on a different basis than was done,, that this court can not in a proceeding of this kind, grant the relief sought, for the reason that there is a plain and adequate remedy at law, which the relator should have adopted, viz, to prosecute a petition in error to reverse the order of the judge.

We understand counsel substantially to admit, that under holdings of the supreme court, an order of a court fixing the amount of an appeal bond, is not such a final and definite order, as that error will lie to reverse it. This, if correct, would be a sufficient answer to the objection. But we are clear that where a party has two remedies under the statute, for instance an appeal, and a proceeding in error, he has his choice which to pursue, and the right to have the court in which his action pends, perform the ministerial acts required to be done as to either, and if refused to compel their performance. It is apparent, that a party might greatly prefer to appeal his case, and have it come de novo before the appellate court for trial on the merits, rather than run the risk that the reviewing court would find error in the proceedings.

This brings us then directly to the determination of the question which has been argued with much abilty, whether in a case of this kind the'probate court was bound to fix the amount of this appeal bond, as he did. This depends upon the construction to be given to section 6407 and 6408, Rev. Stats. The first of these sections provides that, in addition to cases specially provided for, appeals may be taken to the court of common pleas, from any order, decision or judgment of the probate court, in settling the accounts of * * * trustees and assignees, “ by any person against whom such order, decision or decree shall be made, or who may be affected thereby : And the cause so appealed, shall be tried, heard and decided, in the court of common pleas in the same manner, as if said court of common pleas had original jurisdiction thereof.” We are of the opinion that the language used in this section, fairly construed, not only allows to a party interested an appeal from the whole finding, but from any particular finding which he may deem prejudicial to him; and that he is not bound, if satisfied generally with the judgment, to appeal the whole matter so decided; but may limit the effect of his appeal to those items really in controversy, and as to which he is not satisfied with the judgment of the court. He is expressly authorized to appeal from any order, decision or judgment of the court in settling the accounts. And this would only be in analogy to the more understood practice of an appeal from the common pleas to the circuit court of a separate and distinct interest; but if its determination would affect other parties to the litigation, and in effect annul the decree rendered below, the appeal must be of the whole case. But we would see no reason, why, where an exception is filed to a single item of an account, and on that only is there litigation in the probate court, and one of the parties seeks to appeal from the finding upon it, the whole case should go the common pleas for adjudication ; and I understand that counsel for defendant substantially concede this.

If this be so, it would seem, that if the law does require in a case of that kind, an appeal bond in double the amount that might on the settlement of the account be found in the hands of such a trustee, that the right of appeal may be of but little value, and that a construction of a statute, which would have such effect, and so radically change the practice in our state, is not to be lightly adopted.

Section 6408 provides for the bond to be given in the event of an appeal, and fixes the condition and (in one state of the case) the amount of it. It provides that the person desiring to take an appeal as provided in the preceding section, shall within twenty days after the making of the order, decision or decree from which he desires to appeal, give a written undertaking executed on the part of the person .appealing, to the adverse party, with one or more sufficient sureties to be approved by the probate judge, and conditioned that the party appealing shall abide and perform the ordér, judgment and decree of the appellate court, and shall pay all moneys, costs, and damages, which may be required of, or awarded against such party by such court: When the order, decision or decree from which the appeal is taken, directs the payment of money, the undertaking shall be in double the amount thereof; and in other cases in such amount as shall be prescribed by the probate court.”

The first thing to be said as to the language of the statute is, that it nowhere makes any distinction as to the amount of the bond to be given by the person against whom the order to pay money was made, or by the person to whom the money was or-' dered- to be paid, or by any other person at all interested, who desires to appeal. If this be a case in which a bond in double the amount of the sum in the hands of the assignee is to be given, a bopd of the same amount would have had to be given (if we look at the mere terms of the statute) by the new trustees if they had desired to appeal. Or if in the settlement of an administrator, a question arises between the widow, or a distributee of the intestate, and the court decides it against such widow or distributee, and as a part of the judgment of the court finds a large balance in the hands of the administrator, to be paid over by him, the appeal bond must be in double this amount. Surely this cannot be the meaning of the statute. It must receive a reasonable construction, and there can be no reason in the world, why a person interested in a single question arising in the settlement of the account of such trustee, and which is adjudicated against him, should, if he desires to appeal therefrom, give a bond in double the amount of the balance found in the hands of the trustee, and which, by the same entry he is ordered to pay over to some one.

These considerations, I think, make it apparent that the provisions of section 6408, are not at all clear or explicit, or in a satisfactory shape, and that to avoid the hardships and wrongs that might result in the kind of case which I have referred to, that the courts would be strongly inclined to hold, that the bond in such cases should be fixed by the probate court, and as coming under the second clause of the sentence, viz., “ and in other cases in such amount as shall be prescribed by the probate court.” And precisely the same reason would exist in our judgment for doing so in a case where the appeal was partial, and not as to the whole account. It seems to me that we should take into consideration in giving a meaning to this statute, the statutes regulating appeals from the common pleas to the circuit court. By Sec. 5280, it is only where •* the judgment is personal against a party for the payment of money only,” that the penalty of the appeal bond is to be double the amount of the judgment — in all other cases is is fixed by the court. And it is a familiar principle, that even where there is a personal decree against a defendant, and a decree for the sale of land to satisfy it, the bond is often fixed at a sum sufficient to secure the costs. In cases like that before the court, there is the indemnity of the bond which has been given by the trustee or assignee, and this takes the place of the mortgage security in the other case, and that would seem to afford a ground for holding that it was unnecessary to give a bond in double the amount of the finding against the assignee.

But it is argued with force, that the language of the statute is express, and that in a case of this kind, in the event of an appeal by Mannix, that his bond must be in double the amount found by the court to have been in his hands, and which he was ordered to pay over — and if the court was authorized to make the order directing him to pay the balance to his successors in the trust, it is difficult to see^any escape from the correctness of such conclusion, however hardly it might operate in this case.

It is claimed by the counsel for the relator, that the court had no such authority. In the first place for the reason, as I understand it, that no account has ever been filed by the resigned assignee as such, and secondly, that if it is such an account as is contemplated by Sec. 6341, the court by the terms of that section could do no more than settle the account.

The facts in the case are these: The account afterwards settled by the court, was filed by Mannix while he was still acting as assignee. Before it was settled by the court, he resigned his trust, and new trustees were appointed. After this he proceeded to settle his account with the court, and the judgment from which he sought to appeal was entered.

Section 6341 provides as follows, “ On the resignation or removal of an assignee, or trustee appointed by the court, such assignee or trustee shall forthwith file and settle his account. * * * And immediately after such settlement, said assignee or trustee, or his legal representative, shall pay over to his successor all moneys found due from him to the trust. And on failure to do so, or on failure to file and settle said account, or deliver over to his successor all property, books, evidences of title, papers and other effects in a'ny way belonging to the trust, such successor may by action in the common pleas or otherwise, proceed on his bond against such assignee or trustee, or his legal representative, and the sureties in such bond.”

As to the first point referred to made by the counsel for the relator, that this account was not filed by Mannix after his resignation, we think it is not well taken. It was duly filed by him during the continuance of his trust, and after he resigned it was dealt with by him and by the court as his final account for settlement, and we think the court was fully authorized so to deal with it, and make it a final settlement of the estate so far as the resigned assignee was concerned.

The other point, however, as to the order made by the court, we think, is correct. We see no authority conferred upon the probate court, to enter an order directing the payment of the balance found in his hands to any particular person, or to do anything more than to settle the account, that is to determine the state of the account, and the balance either in the hands of the late assignee, due to the trust, or from the trust to him. And then if the balance is against him, the law imposes the duty upon him of paying the amount thereof to his successor in the trust, and'on failure to do so, such successor is authorized to bring suit therefor in the court of common pleas.

The effect of this holding is, that in our judgment the probate court could not, by entering an order directing the assignee to pay the money to his successors 'in the trust, which he was not authorized to make, change the rights of Mannix as to the amount of the appeal bond to be given by him, making it come under the provision as to its being double in amount to the sum directed to be paid, instead of the clause which provides for the fixing of the amount by the probate court.

Holding, then, that the probate court was not bound as a matter of law to fix this bond as he did, the question arises, on what basis it should be fixed. As to the particular amount-of the bond which should be given in this case, we are not called upon to decide — we have not the facts before us which would enable us properly to decide it, even if we had the power, which we have not. As to this matter, unquestionably the probate court has a discretion, and that discretion is not to be controlled by another court. And did it not appear that in this instance, such court had proceeded upon a wrong construction of the statute, and that the amount of the bond was fixed as it was only because he felt himself obliged by the law so to fix it, we could not properly interfere. And if it appeared that there were circumstances in this case, which in the judgment of the probate court made it neceesary for the protection of the estate that a bond even in double the amount should he given, we would be unwilling to interfere with that judgment or discretion. Thus, if the bond given by the assignee was from any cause insufficient or invalid, we think that matter might properly be taken into the account in fixing the amount of the appeal bond, Or if the litigation in the probate court was as to a single matter, or even a variety of matters, it may be involving a specific amount, it would be in the discretion of the court to fix the bond in double the amount so in controversy.

But as I have said, we are not called upon to fix th * rule as to the amount of the appeal bond to be given in any particular case — this is for the probate court in view of the special circumstances surrounding it. All w¿ decide is, that the probate court in this case was not bound to fix it at double the amount found in the hands of the late assignee, and having acted on the theory that he was so obliged, that he should now, in his discretion, fix the amount of the bond to be given by Mannix on his appeal.

Ramsey, Maxwell & Matthews and Thos. McDougall, for relator,'

S. A. Miller and Judge Avery, for defendant.

Application for peremptory writ granted.

      From stenographic report of oral opinion, revised and corrected by Judge Smith.


source: Caselaw Access Project

license: Public Domain

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1886.)
    Befobe Judges Smith, Swing and Clabk, (Judge Clark, of the Fourth Circuit, taking the place of Judge Cox.)
    Matthew and Michael Ryan v. The City of Cincinnati.
    When the owner of property abutting on’a street has improved his property with reference to an existing grade, and the grade is afterwards changed, whereby he is damaged, the damages assessed in his favor must be paid before the work of changing the grade is commenced.
    Error to the Court of Common Pleas of Hamilton County,
   The facts in substance are these:

The city of Cincinnati, by its common council, passed a resolution to grade Hunt street, which street already had an established grade, and abutting property owners had made valuable improvements on the same in accordance with said grade. The new grade will cause a fillfof sixteen feet in front of plaintiffs in error’s improvements. The city gave notice to abutting property owners as required by section 2304 of the Revised Statutes, and other property owners, including plaintiffs in error, filed claims“for damages.

Thereupon the city brought an action to inquire into and assess the damages to the property owners, which resulted in the jury assessing damages to Matthew Ryan in the sum of $3,888, and to Michael Ryan in the sum of $11,850. The court thereupon entered judgment on the verdict, in form as follows : “ It is considered by the court that the said Matthew Ryan, upon the making of the improvement of said Hunt street, in front of his said premises, as declared necessary in the resolution of the common council of said city, and as more fully set forth in the petition herein, recover of the plaintiff, the city of Cincinnati, the sum of $3,888, with interest from the date of the commencement of said work on said improvement opposite said premises.”

It is claimed that the court erred in entering up judgment on the verdict of the jury in this, to-wit: that instead of giving a judgment upon the making of the improvement with interest from the commencement thereof, it should have been, that before or at the time of the commencement of the improvement the city should pay the amount of the damage found by the jury.

The question therefore is, what is the nature of the right of the plaintiffs in error, which the city has sought to deprive them of, and upon what terms may it do it ?

Our supreme court in a number of decisions, commencing with the case of Goodloe v. City of Cincinnati, 5 Ohio, 500, and ending with the case of Cohen v. City of Cleveland, 43 Ohio St., have passed upon, and it would seem completely defined the right which abutting property owners have in the street.

The result is one founded on the broadest principles of natural justice, in which the right of the citizen is maintained against the power of the state, and this is all that it had to commend it at the time when the case of McComb v. Town of Akron, 15 Ohio, 474, which cases first fully outlined the law as it now stands, was decided. But like all cases that are founded on reason and natural justice, it was not destined to remain without support, as several of the states have since followed our rulings.

In the case of Crawford v. Village of Delaware, 466, Judge Swan referring to the case of McComh v. Akron, says: “This decision is in direct conflict with English and American cases. * * * The remark of Bronson, J., in Radcliff's Executors v. Mayor of Brooklyn, 4 Comst., 205, that ‘ if in McComb v. Town of Akron, the Supreme Court of Oh ip intended to hold that persons, whether artificial or natural, were answerable for the damages which might' result to an adjoining land-owner from the grading of the street, though the act was done under ample authority and in a proper manner, the case is in conflict with many decisions, and can not be law beyond the State of Ohio’ is probably true'. And it is also true that the supreme court in making that decision was aware that it was in direct conflict with the decisions both in England and America.

The decisions of our supreme court being in conflict with the common law and most of our state courts, we must look no further to ascertain the law applicable to this case, than our own courts.

In the case of Crawford v. Village of Delaware, supra, and in the case of Street R’y v. Cumminsville, 14 Ohio, St., 523, are to be found the best considered opinions pn these questions.

An.examination of these two cases leaves no doubt, in o.ur opinion, as to the nature of the right that an abutting property owner has in the street, and the terms upon which he may be deprived of it.

Judge Ranney says in the Cumminsville case, supra, p. 546: “In either case the interest acquired and used by the public at large is an easement of a definite character, and held for the attainment of known objects, and in either case distinct from the right of the public to use the street is the right andinterestofthe owners of lots adjacent. With thefact known and appreciated.by everybody, that a large part of the value of lots in towns, was made up in reference to their location upon streets, and with a long course of decisions enforcing the liability of municipal corporations for invasions of this right, it still took nearly twenty years to bring it to a clear and definite description. But at length in the case of Crawford v. Village of Delaware, 7 Ohio St., 459, it was placed upon the true ground, as a right of property protected by the constitution, which could not be taken from the owner without compensation. * * This easement appendant to these lots, unlike any'right of one lot owner in the lot of another, is as much property as the' lot itself. Upon a doctrine so just and necessary, and resting upon foundations so solid and satisfactory, it can matter very little í'hat our conclusions are not concurred in by the courts of our sister states. * . * * If, before the public has exercised this right through the regularly constituted authorities, the lot is improved, the owner must do so with reference to its reasonable and proper exercise thereafter; and can not complain if his means of access to his improvements are impaired through his own indiscretion. But when the public has taken possession and regularly defined the interests and improvements necessary for its use, by established grades, etc., lot owners have the right to assume this exercise of authority as a final decision of the wants of the public, and to make their improvements in reference to it. If any mistake is made, it is the mistake of the public authorities, and it can not be corrected at the expense of those who have acted and expended their money on the faith of its being final.

“This action on their part, is, in legal effect, a distinct and appreciable division of the easement belonging to the public, and under its exclusive control, from that belonging to the owner of the lot, and incident to the lawful and beneficial enjoyment of his property. If, in the progress of improvement, the interests of the public require theirs to be enlarged, and his diminished, it can only be done upon making him compensation to the extent of his injury.”

That the property owner has a right of property in the street, which can not be taken from him without compensation, is of course admitted by the city, and was recognized by the court rendering judgment in his favor. But can this right of property, which the court says is as much property as the lot itself, be taken from him by rendering a judgment in his favor, against the city, which judgment cbe city may pay at its pleasure, or on its failure to pay, the owner may proceed to collect by execution ?

The two questions settled by these decisions are, first, that the abutting property owner has a right of property in the street which is as much as the lot itself, and, second, that this right is “protected by the constitution” and can only be taken from him “upon theterms of the constitution,” The only remaining question, therefore, is, on what terms may the owner of private property be deprived of it by the public.

Art. 1, Sec. 19, of the Bill of Rights, is as follows : shall be made to the owner, in money; and in all other cases, where private property shall be taken for’ public use, a compensation therefore shall first be made in money, or first secured by a deposit of money; and such compensation shall be assessed by a jury without deduction for benefits to any property of the owner.” By this provision we think the owner of private property can never be deprived of it, whether taken in time of war, for public roads, or in any other cases, except upon compensation being made him in money.

“ Private property shall ever be held inviolate, but subservient to the public welfare. When taken in time of war, or other public exigency, imperatively requiring its immediate seizure, or for the purpose of making or repairing roads, which shall be open to the public without charge, a compensation

In the case of Crawford v. Delaware, supra, Judge Swan, on p. 467, says: “ If the land of a citizen, or his rights in property, are commanded to be taken from him, it is beyond the power of the general assembly to authorize either to be touched until compensation is made.” And in the Cumminsville case, supra, Ranney, J., at p. 550, says: ‘‘ The difficulty of giving this any effect, in the present case arises from the fact, that the justice of the constitution has provided that what the one thus gains and the other loses, shall be paid for, before the property is taken or invaded.”

That these two eminent judges have stated the law correctly there seems no room to doubt, nor does there seem to be any reason to doubt, that the judgment in this case is not such a compensation in money as required by the constitution.

The judgment here is “ upon the making of the improvement (that is the compensation of the improvement,) as declared necessary” — the property owner shall recover the amount of of the damage he will sustain. Under this judgment the city takes the property of the citizen without compensation in money, and may retain it a long time without paying him therefor. It is true they give him interest from the time of the taking. But manifestly this does not meet the requirement of the constitution, and the only thing that ca'n meet it is the payment of the money at the time of the taking. The city’s right to appropriate this property can only accrue to it where the money is paid.

The judgment of the court below will be reversed, and judgment will be rendered here in accordance with the foregoing opinion.

Hoadly, Johnson & Colston, for plaintiffs in error.

Coppock, Cox & Gallagher, for city.

There were several matters raised in the argument which we think are necessarily answered by the conclusions reached above, and these are not therefor adverted to.


author: Stewart, J.

text:
    (Second Circuit — Franklin Co., O., Circuit Court
    January Term, 1886.)
    Before Williams, C. J., and Stewart and Shauok, J. J.
    Henry Liniman v. William H. Dunnick et al.
    K. made an assignment under the state law, of all his assets, including a judgment against L. After making the assignment and after the qualification of the assignee, K. sold and transferred this judgment to D., who brought suit thereon and recovered judgment by default against L. (who had no personal knowledge of the assignment by K. under the insolvent laws); D. is now seeking to enforce the same: Held: That in order to entitle L. to an injunction restraining D. from collecting the judgment, he must bring the fund necessary to pay the same into' court, make all parties claiming it parties, and call upon them to interplead, so that the court may determine their respective rights.
    Appeal from the Court of Common Pleas of Franklin County.
   Stewart, J.

This cause came into this court by appeal, and is at this time submitted upon a motion to dissolve the temporary injunction heretofore granted, and upon a general demurrer to the second amended petition.

This petition sets forth substantially the following facts :

In July, 1877, one K. recovered a judgment before a justice of the peace against the plaintiff (L), and afterwards filed a transcript thereof in the clerk’s office. In 1878, K. made an assignment under the state law of all his property and choses in action for the benefit of his creditors, and his assignee duly qualified, and is still acting as such. Subsequently to the appointment and qualification of said assignee, K. assigned the judgment against plaintiff to the defendant D., who brought suit thereon and recovered judgment by default for the full amount. On this last judgment execution has been issued, and is about to be levied on plaintiffs chattels. Plaintiff avers that he was ignorant of the assignment by K. under the insolvent laws, and therefore could not defend in that regard in the suit brought by defendant D.; that D. knew of the assignment under the insolvent laws by K., at the time of the transfer to him of this judgment, and that unless the defendant D. is restrained from enforcing the same, he may be compelled to pay the judgment twice, and thus suffer irreparable loss and injury; and for all this he has no adequate legal remedy.

As no affidavits have been filed in support of or against the motion to dissolve the preliminary injunction, it and the demurrer present for decision the same question, viz.: Does this petition state such a case as calls upon a court of equity to enjoin the collection of a judgment at law ?

‘‘The general principle underlying the jurisdiction of courts of equity in such cases is, that it must be against conscience to execute the judgment sought to be enjoined; and it must clearly appear that the person aggrieved could not avail himself at law of the equities relied-upon to enjoin the judgment ; or if he was in a condition to avail himself of such equities in defense of the action at law, that he was prevented from so doing by accident, mistake or surprise, or by fraud of the adverse party, unmixed with laches or negligence of his own. In accordance with this principle a judgment will not be enjoined, where there is no evidence of a good defense to the merits, or that the judgment is contrary to equity or good conscience. And where complainant fails to show due diligence in availing himself of. his defence at law, an injunction already granted may be dissolved, even though no answer is filed, it having been improperly awarded in the first instance. And unless required so to do by motives of public policy, the court never will, against equity and good conscience, arrest proceedings at law.” 1 High on Injunctions, § 114-

There is no fraud charged here, unless constructively in the allegation that D. knew of the assignment when he bought this judgment, and nevertheless seeks to enforce its collection, knowing that in law he can have no title. To excuse plaintiff’s apparent laches and negligence, he avers ignorance on his part of the assignment under the insolvent laws. Was he not bound to know of it? Was not the published notice of the assignment and assignee’s appointment constructive notice to him ? If he did know of it, D.’s knowledge would not avail plaintiff in this suit, nor give him any standing in a court of equity. But we are not called upon in this case, viewing it as we do, to decide whether that was notice to him or not. We think the plaintiff has not brought before the court the proper parties for the determination of his rights if he has any. From all that appears in this petition, D. is the only party asserting any claim to this judgment, or attempting to collect it. It is true that the petition alleges that if he pays D., he will not be relieved from paying the assignee of K.; but it nowhere appears that the assignee is asserting any claim, or attempting to collect the judgment. From aught that appears in this petition, the assignee may be acquiescing in D.’s claim; and in the absence of a superior legal claim, D. has a clear right to collect the judgment. Plaintiff admits that he owes the money, that he ought to pay it, but does not want to pay it but once. A court of equity will not presume that he is going to be compelled to pay it twice, or that more than one creditor is going to try and collect it. As we view this case, plaintiff’s only rights are, to bring into court a fund sufficient to pay this judgment, and bring before the court all the parties claiming the same ; then by requiring them to interplead, setting forth their respective claims, he can call upon the court to decide which is entitled to the fund, and to enjoin the other from further attempting to collect it. Failing to proceed in that way, there is here apparently nothing calling upon a court of equity to act in his behalf.

O. T. Qlark and II. F. Guerin, for plaintiff.

E. B. Jewett, for defendant Dunnick.

Upon motion of plaintiff, leave is given him to amend his petition accordingly, and upon that being done the motion and demurrer will be overruled.


text:
    (Second Circuit — Franklin Co., O., Circuit Court
    January Term, 1886.)
    Before Williams, C. J., and Stewart and Shauck, J.J.
    Samuel D. Doney v. The Trustees of Truro Township.
    1. The powers possessed by township trustees in the location and establishment of township ditches are very broad, but being conferred by statute, cannot exceed the limitations of the statutes.
    2. The only power which township trustees possess to grant permission ■ co box or tile a township ditch, is eon ferrsd by Sec. 4524, Rev. Stats., and its provisions must be strictly followed.
    3. Where a plain and adequate remedy at law was open to a party, and he knowingly chose not to pursue it, he will not be permitted to appeal successfully to a court of equity for relief.
    Error to the Court of Common Pleas of Franklin County.
   Stewart, J.

The only error alleged in this case is that the court below sustained a demurrer to plaintiff’s petition, and plaintiff failing to amend, dismissed the cause and rendered judgment for defendants.

The petition alleges in substance that at a meeting of the trustees of Truro .township for the hearing of a petition for the establishment of a township ditch (not petitioned for by plaintiff, but terminating on his land, in the National road) he objected to the location and establishment of the ditch on the line proposed, for the following reasons: First, it was not the natural water-course; second, there was another ditch suitable for the purpose, and third, it would cause him continual and interminable damage. And he threatened the trustees to restrain by injunction the location of the ditch. That “after considering his objections, and to avoid the litigation which he threatened, and to obtain his consent to the location and establishment of said ditch as proposed,” the trustees proposed, “ that so far as said ditch was established upon plaintiff’s land, he (plaintiff) might put tile therein, and should not be required to take and receive from the other lands more water than could conveniently be carried through a five-inch tile, and that any other or greater quantity of water, that should be on or come from said lands, should be directed to pass over and through the said old ditch and natural water-course.”

That he accepted the proposition of the trustees, and agreed to claim no damages on account of the location of the ditch, and that he fulfilled all his part of the agreement. That the defendants, who are successors of the trustees who made this agreement, have violated it, “by allowing more water to flow to plaintiffs lands than a five-inch tile can carry off, and by not causing the surplus water to pass away by the old ditch and natural water-course; and he has suffered and continues to suffer great injury by reason thereof. ” That on March 23, 1885, the defendants served a notice on plaintiff by the township clerk, that they “ had ordered that plaintiff should take up said tile, and that that part of the ditch should be by him cleaned out to its original capacity as established under said petition, being eighteen inches wide at bottom and depth in accordance with the profile of the engineer.” Plaintiff has refused to obey the order on account of the aforesaid agreement, and avers that, “ the trustees are about to sell the work of cleaning the ditch, and levy the cost on his land, to his great and irreparable injury.” The prayer of the petition is, “ that defendants be restrained from interfering with that portion of the ditch, and that they be ordered to fully comply with and perform their duties under the aforesaid agreement.”

This proceeding is, in effect, an attempt on the part of the plaintiff, to compel the defendants to do what, he says, their predecessors agreed with him, under threats, to do, viz.: to see to it, that no more water come down through this ditch than can pass through a five-inch tile at the lower end. In the location and establishment of township ditches, the powers of township trustees are very broad, for “ whenever in their opinion the same will be conducive to the public health, convenience or welfare,” they may “ establish, locate and construct in the manner prescribed by law, any ditch within the township;” 78 O. L., 209, § 4511; but this power is not broad enough to allow them to make a contract such as claimed here, or make it binding upon their successors. In addition to this original power, they have a continuing jurisdiction over the matter, and “ have power to cause any ditch located and constructed by them, to be deepened, widened, enlarged or repaired,” (Rev. Stats., § 4552; 80 O. L., 15); and, “ to order ” the owner of land through which a ditch runs, “ to clean out such ditch to its original capacity within 30 days.” (Rev. Stats., § 4553.) From the allegations of this petition, it appears that everything was regularly done in and about the location and establishment of this ditch, and every step taken in accordance with law. The only power of the trustees to grant permission to box or tile a ditch is limited to those who apply in writing at the time of the hearing of the petition (Rev. Stats., § 4524). There is no allegation that any such written request, or any request, was made by the plantiff. “ The trustees only possess the powers expressly conferred upon them as such officers by the statute, and in the exercise of their powers can take nothing by implicatibn, beyond the authority conferred by statute.” Sutliff, C. J.: Hopple v. Brown Tp., 13 Ohio St., 324.

Nowhere in this statute, or any other, can there be found authority for them to make such an agreement as claimed to have been made here. On the contrary, they are bound in locating and establishing a ditch to so construct it, as that it may subserve the purpose for which it is located. And agreeing to do anything other or less than this, is agreeing that they will not perform the duties imposed upon them by law. And what they cannot legally do themselves, they certainly cannot bind their successors to do. They had the power to locate . or refuse to locate this ditch and prescribe its dimensions; they decided to locate it. But plaintiff says, “ to avoid litigation,” not because of a written request, as required by the statute, they agreed that he might tile a portion of it. They have ordered it cleaned out to its original capacity, and as we view the law, the plaintiff has nothing to do but obey their order. If he was not satisfied with the location of the ditch, he could have taken an appeal (Rev. Stats., § 4533) ; but he chose not to pursue his legal remedy and he ought not now to be allowed to successfully appeal for relief to a court of equity.

It is claimed on behalf of plaintiff in error, that waiving damages by him, furnished a sufficient consideration for this agreement; but we are unable to see either from reason or authority, why the trustees could be paid, any more than they could be driven by threats, to agree not to fulfill their sworn duties at all times and places.

W. H. Dunnick, for plaintiff.

Marriott & Hughes, for defendants.

It follows, therefore, that the judgment of the court below must be affirmed.


text:
    (Second Circuit — Fraklin County, O., Circuit Court
    Jan. Term, 1886,)
    Before Williams, C. J., and Stewart and Shauok:, J.J.
    W. C. Lemert v. John D. Clarke et al.
    1. The failure of the sheriff to file in the clerk’s office his return on an alias order of sale within 60 days from the date of issuing, is not such an irregularity or neglect in the proceedings as will be regarded on error after a confirmation of a sale thereunder.
    2. Where an advertisement of a judicial sale is published in a semiweekly newspaper, it i§ not necessary that each insertion should be on the same day of the week.
    3. Where an advertisement of a judicial sale is published in a daily newspaper, and each insertion is not on the same day of the week, this is not a mere irregularity in the proceedings, but is such a defect as that a motion to set aside the sale made thereunder, on that ground, made before confirmation, should be sustained.
    Error to the Court of Common Pleas of Franklin County.
   Stewart, J.

This is a proceeding in error to reverse an order of the court below in confirming a sale made under an alias order of sale issuing from that court.

It appears from the record that the alias order of sale was issued July 3d, 1883; that the property was sold August 25th, 1883, for more than two-thirds of the appraised value, and that the alias order of sale was not returned and filed in the clerk’s office until October 29, 1883. It further appears that the property was advertised for sale under this alias order in the Daily Times; the first publication being on Monday, July 23d; the second, on Tuesday, July 31st; the third, on Monday, August 6th; the fourth, Monday August 13th, and the last, Monday, August 20th. That the advertisement in German was made in the semi-weekly edition of Der Westbote on the following dates: Wednesday, July 25th; Saturday, August 4th; Wednesday, August 8th ; Wednesday, August 15, and Wednesday, August 22d.

The errors complained of are that the court erred in confirming the sale, because:

1. The alias order of sale was not returned arid filed within 60 days after it was issued, and

2. Said advertisements of the sale were not inserted in the daily and semi-weekly editions of the several papers on the same day in each consecutive week.

These objections were made by motion before the confirmation of the sale, but the court overruled the motion and confirmed the sale.

As to the first assignment of error, we do not think it is such an irregularity as would call upon this court to reverse the court below for overruling that part of the motion, if indeed it was necessary for the alias order of sale to be filed in the clerk’s office in order to be returned. Conkling v. Parker, 10 Ohio St., 28.

The second ground of error, that in regard to the defect in the advertisement, is a more serious one, it appearing from the record, that the advertisement was not made in compliance with the requirements of Rev. Stats., § 5398, which, so far as essential in this case, are as follows:

“ Lands and tenements taken in execution shall not be sold until the officer causes to be given public notice of the time and place of sale, at least thirty days before the day of sale by advertisement in a newspaper, etc., * * * * whentheadvertisement is made in a newspaper published weekly, it shall be sufficient to insert it in five consecutive numbers thereof; * * * * jf the lands and tenements taken in execution are situated in any city in this state, and there is published both a daily and weekly edition of the newspaper selected for such advertisement * * * * it shall be sufficient to publish the advertisement in the daily once a week, for five consecutive weeks, before the day of sale, each insertion to be on the same day of the week; '* * * * and all sales made without such advertisement shall be set aside, on motion, by the court to which the execution is returnable.”

It must be borne in mind that this is not a proceeding to attack the deed of a purchaser, but an objection raised before confirmation:

Although it has been said by the supreme court (Ohio Life Ins. & Trust Co. v. Goodin, 10 O. S., 566) that on a motion to confirm a sale, a court has a discretionary power, this m.eans a sound legal discretion. If this is true in its broadest sense, yet it has not prevented the supreme court from reviewing and reversing on error an order confirming a sale. Reed v. Radigan, 42 O. S., 292.

There seems to be nothing in § 5393, or in any other which we can find, requiring the advertisement to be made on the same day of the week in the semi-weekly edition of any paper; but without deciding, for it is not necessary to do so in this case, we might say that probably such a publication would fall within the rule laid down in Hagerman v. Loan Ass’n, 25 O. S., 186, and Wilson v. Scott, 20 O. S., 636, and if the first publication was 30 days prior to the sale, it would be sufficient.

But in regard to the daily paper, the provision is express that each insertion must be on the same day in each week. If this may be varied for one reason, it may be for another, and the advertisement may appear on a different day each week. For some wise purpose, we must presume, the legislature inserted this requirement in this section, and it is for courts to follow the law, especially when its provisions are plain, and its requiremint clear. While we find no cases in Ohio exactly in point, in the case of Wilson v. Scott, supra, Judge Mcllvaine in speaking of such advertisements says: '• When published in a daily paper, it is sufficient to insert it in the paper once a week for five consecutive weeks, but in such case it must appear on the same day in each week.” In the view which we take of this statute, we have arrived at the same conclusion, |and hold that the failure to insert the publication, when made inj.a daily paper, on the same day in each week, as in the case at bar, is not a mere irregularity which may be regarded or not in the discretion of the court, but is such a failure to comply with the law, that a court, when property advised thereof, ought to set aside the sale, and in so holding we give effect- not only to that requirement of the statute, but also to the latter clause thereof which says: “ All sales made without such advertisement (i. e., such advertisement as is provided for by this section, and in the manner therein provided) shall be set aside, on motion, by the court to which the execution is returnable.

W. O. Henderson, for plaintiff.

W. J. Clarke, for defendant.

The motion was made on this ground, viz.: that such advertisement had not been made as required by law, and was made before confirmation, but the court overruled it, and confirmed the sale. In this we think the court below erred, and the judgment will therefore be reversed with costs, and the cause remanded.


text:
    (Second Circuit — Franklin Co., O., Circuit Court
    January Term, 1886.)
    Before Williams, O. J., and Stewart and Shatjok, J.J.
    Robert Fullerton v. Jesse V. Davis, Adm’r.
    1. In a suit by an administrafor to recover upon a bond given in pursuance of the provisions of Sec. 6098, Revised Statutes, it is necessary, to enable him to recover, for him to show that the requirements of said section have been strictly complied with.
    2. Where a bond has been given in accordance with the provisions of Sec. 6098, Revised Statutes, the party giving the bond must be made a party to the suit upon the rejected claim, and permitted to defend if be desires, or he will not be 'liable for the costs and expenses of such suit.
    Error to the Court of Common Pleas of Franklin County.
   Stewart, J.

September 20, 1883, Jesse V. Davis, administrator of Obadiah Davis filed his petition in the court below against Robert Fullerton and C. D. Hunter, alleging in substance the following facts: That as such administrator, upon the written requisition of the defendant Fullerton, who was a party interested in the estate, he disallowed a claim which had been presented to him against said estate by one Mary M.cCoy. That on March 9,1882, the defendants executed and filed in the probate court a- bond in the sum of $300, conditioned to pay all costs and expenses of collecting said claim so disallowed, in case judgment therefor should finally be rendered against the administrator; that judgment was rendered in favor of Mary McCoy in said suit for $421.34, and $33.42 costs, and plaintiff has paid the judgment: that defendants refuse to pay the costs; that in said suit plaintiff’s own trouble and expense was $25, and his lawyer’s fee $50, neither of which sums has been paid, and averring in this a breach of the bond, prays a judgment for the sum of the costs and expenses.

The second amended answer on which the case was tried, consists of three defenses.

The first defense is in substance a general denial, except as to the filing of the written requisition, giving of the bond, rejection of the claim, the bringing suit, obtaining judgment thereon, and the payment of the judgment.

The second defense avers in substance, that the written requisition and bond were given under the provisions of Sec. 6098, R. S.; but that Fullerton was not made a party either by plaintiff or defendant in the suit brought on the rejected claim, but that coming into the suit on his own motion, and filing an amended answer therein, he was, on motion of the holder of the claim, dismissed from the case, and was not a party at the time of the trial, and was prevented thereby from defending against and defeating the claim; that no judgment for costs was rendered against him ; and by reason of all these matters he ought not to be compelled to pay any of the costs or expenses. The third defense avers that Fullerton bought all of the land of plaintiffs’s intestate from his heirs before Mary McCoy brought her suit and had title thereto; that after she obtained her judgment, all this land was sold, and the judgment, interest, costs and attorney’s fees paid out of the proceeds.

The reply to the second defense is a general denial; the reply to the third defense admits that the proceeds of the sale were applied to the satisfaction of the judgment of Mary McCoy, but denies that any part of the costs or expenses were ever paid. Upon these issues a trial was had to the court below, anda judgment rendered for plaintiff for part of his claim. A motion for a new trial being overruled, a bill of exceptions was duly taken, purporting to contain all the evidence, and a petition in error filed in this court alleging error in this that the court below erred in the admission and rejection of evidence, and in not sustaining the motion for a new trial on the ground that the judgment was against the weight of the evidence and the law. The giving of the bond by defendants, the rejection of the claim of Mary McCoy, the bringing suit thereon, obtaining judgment thereon and the payment of the judgment being admitted, the plaintiff at the trial introduced evidence of the value of his attorneys’ services in said suit, of his own expenses, and the amount of the costs. To the introduction of all this testimony the plaintiff in error objected, but his objection was overruled and he saved his exception. The defendants then offered in evidence so much of the'record of said suit as showed Fullerton’s dismissal therefrom as not being a necessary party, and also some evidence tending to show that the attorneys’ fees and expenses and part of the costs had been paid. This latter evidence was contradicted in rebuttal.

As this action has its foundation in the provisions of section 6098, Rev. Stats., the proper decision of the questions involved here, can only be arrived at by a determination of the objects of this section, and the plain and obvious meaning of its requirements. The section reads as follows: “ Section 6098. If any heir or creditor of a deceased person, or any person who has purchased, or claims to hold, by purchase or otherwise, fropi such heir, any lands or other property inherited by such heir from such decedent, shall file in the probate court of the county in which administration is taken out on any estate, a written requisition on the administrator or executor, to disallow and reject any claim presented for allowance, and whether said claim has been allowed or not, but which has not been paid in full, and shall enter into an undertaking with sufficient surety, to be approved by the probate judge, conditioned to pay all costs and expenses of contesting such claim, in case it shall be finally allowed, such claim shall in such case be disallowed and rejected by such administrator or executor, and the holder of such claim shall be required, within six months after such rejection of such claim, to bring his action against •such administrator or executor, to enforce such claim, and if he recover, the judgment shall be against the said administrator or executor; and in such action, such heir, creditor or other person claiming to hold such property, shall be made a party defendant with such administrator or executor, and shall have the right to plead and make any defense to such action which such administrator or executor could make. * * * And if the plaintiff recover, the judgment shall be against the administrator or executor, but the costs shall be awarded against the party filing the requisition to disallow the claim.”-

The original action of Mary McCoy v. Jesse Davis, Adm’r, was brought before this court by the plaintiff in error in this ■cause, seeking to reverse that judgment; but we then held, and we think rightly, that there was no error in that record, for the reason that Fullerton had failed in his pleading to bring himself clearly within the provisions of section 6098, Rev. Stats., siopra; and in order to avail himself of that section, he must show affirmatively that he had complied with its requirements. And so in the case at bar, if the administrator wishes the benefits of this section, he must show that all its requirements have been fulfilled. This statute was evidently intended to protect those interested in estates from designing administrators and executors, and to prevent collusion between administrators or executors, and claimants. It appears from the record that plaintiff in error, on his part, gave the bond required by law, and that the defendant in error was duly notified; that defendant in error thereupon rejected the claim, and suit was brought thereon; that plaintiff in error was made a party to that suit on his own motion after its commencement, and on motion of the plaintiff (Mary McCoy) was dismissed from the case, before trial, as not being a necessary party. This statute seems to assume that the administrator believes the claim a just one, and when his judgment is challenged by any person interested in the estate, such person must give bond to pay costs and expenses, before the administrator is required to reject the claim. Then, if suit is brought, although the administrator is made a party, he is not bound to defend; if any defense is to be made, it must be by liis co-defendant. If the party giving the bond is not made a party, then the administrator might file an answer, setting up that the claim had been rejected in accordance with the provision of section 6098, Rev. Sats., after bond given, and that the party giving bond had not been made a party defendant, and this, we think, would be a complete defense to the action so far as the administrator was concerned, for the statute says ‘;he shall be made a party, etc,” and if the administrator desired the benefit of the bond, it would be his duty to file such an answer, and undoubtedly the administrator ought to be allowed his expenses incurred in drawing that answer. If the party giving the bond, on being made a party, chose to make no defense, he would only be liable for such costs as accrued in the action. If, however, the administrator learned of a defense, he could and should communicate it to his co-defendant, and call on him to defend on that ground, for by the terms of the statute, he may make any defense that the administrator could. But if the administrator choose to make a contest himself, or did not choose to set up an answer demanding that the party giving the bond be made a party, it would indicate very clearly that he did not intend to rely upon section 6098. If the administrator chooses to incur expenses other than the filing of this answer, which we have indicated, he does so as administrator generally, and not under section 6098, for under that section there is no necessity for his so doing. The expenses covered by the bond given pursuant to said section, it seems to us must be necessary expenses only, -incurred in accordance with its provisions. In the case at bar, it appears that although plaintiff in error was made a party to the original suit on his own motion, he was not allowed to defend; the administrator was not bound to defend, and if he did so, without requiring Fullerton to be brought in, we do not think it was by virtue of said section, or that he is entitled to its benefits, as the injunction to make the party giving the bond, a party, has been wholly disregarded. Being deprived of his opportunity to defend, Fullerton cannot be held for the unnecessary expense, that is, unnecessary to be incurred by the administrator. And the same may be said as to the costs. By section 6098, supra, it is provided that in such action “ the costs shall be awarded against the party giving bond,” and also that his bond shall be “ conditioned to pay all costs,” etc. Construing all the parts of this statute together, it is clear that the costs covered by the bond must be the “ costs awarded against” him in the suit. We therefore hold that if the administrator desires to recover these costs, it is his duty to see to it, that the costs are awarded against the party giving the bond. There having been no “costs awarded against” the plaintiff in error in the original suit, he would not be liable therefor upon his bond, and for reasons above stated he would not be liable for the attorney’s fees or other expenses. In view of the admissions of the pleadings in this case, and of the plain provisions of this statute, all of the evidence objected to by plaintiff in error should have been ruled out as irrelevant, and its admission was prejudicial to plaintiff in error; the administrator having failed to see that the proceedings in the original suit conformed to the requirements of section 6098, he cannot in this suit claim the benefits of this section. We find no other errors in this record, but for error in the court below in admitting the testimony objected to, and because the competent testimony clearly showed that a judgment should have been given in favor of plaintiff in error, the judgment will be reversed with costs, and cause remanded for a-new trial according to law.

David Stalter, for plaintiff.

Jones & Jones, for defendant.


author: Williams, C. J.

text:
    (Second Circuit — Greene Co., O., Circuit Court
    March Term, 1886.)
    Before Williams, C. J., and Stewart and Shauck, J. J.
    Emmazetta Boberts, Executrix of M. W. Roberts, v. John B. Briscoe.
    1. In an action by the assignee of a promissory note against the executor of the maker, the assignor is by section 5241 (Rev. Stats.) prohibited from testifying concerning any facts which occurred before the death of the testator not within the other exceptions specified in section 5242 (Rev. Stats.) Such disqualification of the assignor as a witness is not made to depend upon his being called by the assignee, but exists as well when called by the executor.

      2. In such action written or verbal declarations of a prior holder by endorsement, made before he became such, are not competent evidence to affect the title of the plaintiff, or impeach the note in his hands; and where on the trial ¿f such action, the statement of the plaintiff for the purposes of the trial, and the charge of the court to the jury wholly eliminate from the case all claim of the plaintiff to stand upon the rights of such former holder as an innocent purchaser, the rejection of such declarations is not prejudicial error, if they were otherwise competent to prove that such prior holder was not a bona fide endorsee. •
    3. The declarations of an alleged conspirator cannot be given in evidence t’o charge liis fellow until after sufficient proof of the fact of conspiracy, and then only such as were made during the pendency of the enterprise.
    4. The summary statement of the clerk entered upon the Appearance Docket, of the prayer of a petition filed by the maker of the note against the payee, of which the plaintiff had no notice, is not admissible in evidence against the plaintiff to prove want of consideration in the note, or fraudulent transfer of the same, nor for the purpose of shifting upon the plaintiff the burden of proving consideration.
    Error to the Court of Common Pleas of Greene County.
   Williams, C. J.

On the 13th of November, 1882, John B. Briscoe filed his petition in the common pleas court of Greene county, Ohio, against Micajah W. Roberts, alleging in substance:

1st. That on the 30th day of September, 1880, Roberts made and delivered his two promissory notes of that date, calling for $3,500 each, to one Jennie Mansfield. Each of said notes is payable to said Jennie Mansfield or order, one in twelve months and the other ¿¡in eighteen months after date, and each bearing interest from date at 6 per cent.

2d. That before the maturity of either of said notes, said Mansfield indorsed and delivered the same to one Mouch, who on the 26th day of March, 1881, indorsed and delivered the same, without recourse, to plaintiff.

3d. That the amount of said notes, principal and interest, is due to plaintiff and unpaid.

The defendant answered in substance :

1st. Denying the execution of said notes, and also denying the other allegations of the petition.

2d. Alleging that if his signature was genuine, it was obtained by fraud, and the notes were filled up without consideration and without his knowledge or consent; that each of said endorsees had full notice of such fraud and want of consideration, before and at the time of said transfers, and that neither the plaintiff, or any of said endorsees received the notes in good faith, or for value, or with intent to become owners thereof. But the endorsements were made for the use and benefit of said Mansfield, and to enable her to avoid defense to the suit upon them.

The reply controverts the allegations of the new matter in the answer.

The case was tried to a jury, and a verdict returned for the plaintiff.

A motion for a new trial was overruled, and judgment entered on the verdict.

This petition in error is prosecuted to reverse that judgment.

The errors assigned are predicated upon three several bills of exceptions, taken during the progress of the trial.

No. 1. The first one relates entirely to the competency or incompetency of Jennie Mansfield as a witness to certain matters. This bill of exceptions states, that the plaintiff, having offered testimony tending to prove that said M. W. Roberts had signed and delivered the notes in suit and the indorsements thereon, and having rested his case, the defendant offered Jennie Mansfield as a witness, and proposed to-prove by her that she was the Jennie Mansfield to whom the notes were executed, and to prove by her that the said notes were without consideration of any kind; that when said Roberts signed said notes, he was not aware that he was signing promissory notes, and did not intend to sign a promissory note, and in signing said paper believed he was signing a letter for her, nothing being then written above. And the defendant also expected to prove by her, the date of the transfer to Mouch, and to Rowley; the circumstances surrounding the same, and that neither Mouch or Rowley were holders for value, or in good faith; also to prove by her, that neither Mouch or Rowley had ever paid to her any consideration whatever. Defendants also offered her as a witness generally to. all the issues of the case, prior to the death of M. W. Roberts, who-died July, 1883, as is agreed by counsel. Whereupon the plaintiff objected to said Jennie Mansfield as a witness in so far as any transaction, or fact, prior to the death of said M., W. Roberts, was concerned, which objection was sustained by the court, and said Mansfield was excluded as a witness, as to all facts, circumstances, etc., occurring prior to the death of said Roberts. To all of which the defendant excepted.

This action of the court, it is claimed by the plaintiff in error, was erroneous. It is claimed, that under sections 5240, 5241 and 5243, R. S., said Mansfield was a competent witness generally, if called by the defendant, while the defendant in error justifies the action of the court under sections 5241 and 5242. The solution of this question depends upon a proper construction of these sections.

Section 5240 provides, that all persons are competent witnesses except those of unsound mind, and certain children under ten years of age. Section 5241 reads as follows : “ The following persons shall not testify in certain respects:

Sub-division 4. A person who assigns his claim or interest, concerning any matter in respect to which he would not, if a party, be permitted to testify.”

Section 5242. “ A party shall not testify where the adverse party is the * * * executor or administrator of a deceased person, * * * except, first to facts which occurred subsequent to the time the decedent or testator died.”

Section 5243. “ A party may compel the adverse party to testifyr as any other witness may be thus compelled.”

The claim of the plaintiff in error is, that inasmuch as she could have compelled Jennie Mansfield to testify, if she were a party, she had the right to compel her to testify against her assignee; or that if the terms of section 5241 do not confer that right, such right is plainly within the intent and spirit of the sections taken together.

On the other hand the defendant in error claims, that neither by the language or spirit of the sections is she made a competent witness. It will be seen that the prohibition of section 5241 is absolute, and extends to all cases therein- specified, without any reference to the party calling the witness. The following persons shall not testify, etc.”

The language of the fourth subdivision, specifying the class within the prohibition, is — “A person who assigns his claim, * * * concerning any matter in respect to which he would not, if a party, be permitted to testify.” That is, such person shall not testify at all concerning such matter without any regard to which party calls him. Combine these sentences and they will read, “ A person who assigns his claim * * * shall not testify concerning any matter, etc.”

Combine this with the matter concerning which he would not, if a party, be permitted to testify, and the clause would read : “ A person who assigns his claim shall not testify where the adverse party is an executor, except to facts which occurred subsequent to the time the testator died.” Thus it is evident that the plain language of the statute leaves the inhibition against such assignor testifying absolute and without qualifications in the cases named. The term “permitted” in Sec. 5241, is used in the sense of privilege, and in contradistinction to the word “ compelled ” in Sec. 5243. The assignor is absolutely prohibited from testifying to anything it would not have been his privilege to testify to if he were the party. This prohibition is neither removed or qualified by his being called by the executor, nor by Sec. 5243. The effect of Sec. 5241 is, that a person who assigns his claim, * * *• shall «oí testify concerning any matter to which he would not, if a party, have the privilege of testifying. A party has not the privilege of testifying, where the adverse party is an executor, to facts occurring before the testator’s death, not within the other exceptions specified in Sec. 5242. The interdiction contained in these sections is, that the assignor shall not testify at all concerning such matter. To give the section the effect claimed by the plaintiff in error, it would read: “A person who assigns .his claim, * * * shall not testify in behalf of his assignee, concerning any matter in respect to which he would not, if a party, have the privilege of testifying, but may be compelled to testify by the adverse party.” The language of this section does not make the incompetency of the witness to depend upon his being called by one or the other party, but such disqualification exists without regard to who may call him; To give the statute the meaning claimed by the plaintiff'in error, it would have to be enlarged by construction, by the interpolation of certain words in the same, so as to read thus : “A person who assigns his claim * * * shall not testify in behalf of his assignee, where the adverse party is an executor, except to facts which occurred subsequent to the time the testator died; or, “a person who assigns his claim * * * shall not testify where the adverse party is an executor, except to facts which occurred subsequent to the time the testator died, unless called by such executor as a witness in his behalf.'” Thus extending the provisions of the statute by construction, would be judicial legislation. It will be noticed that in the construction of the various provisions of the statute,on this subject, the supreme court has adhered closely to its language. This was so in Myers v. Walker, 9 Ohio St., pg. 558; Bomberger v. Turner, 13 Ohio St., 269-70; and in the case of Elliot v. Shaw, 32 Ohio St., 431, where-it was claimed the word “ grantee ” as used in section 5242, was intended to be and was used in a sense broad enough to include one who purchased a chose in action, the supreme court say: “ Undoubtedly it would have been consistent with the theory upon which these exceptions to the provisions of section 310 were enacted, to have included assignees of personal property and choses in action. Had that been the legislative intent, it is quite apparent from the particularity observed in specifying the cases to be excepted, that assignees would have been mentioned, by adding the words, “ grantees and assignees,” to the class designated by the words, “ heir and devisee.” But, instead of doing that, the word grantee was alone inserted between the words heir and devisee, as if it was the intent that its meaning should be known by its association. The words, heir and devisee, properly apply exclusively to real property. The word in question, then, is so associated in the clause to which it belongs, that the maxim, ■noscitur a sociis, clearly applies, and excludes a construction of the word grantee, as used in this section, which would extend it beyond its strict and usual meaning as applied to real property.”

So we may say here that the legislature had the whole subject before it. It would have been an easy matter to have limited the inhibition against an assignor testifying, to cases where he was called by his assignee. The fact that the legislature did notdoso, butleft the prohibition without limitation or qualification, is significant, and a court would hardlyjbe authorized to assume that it was accidental. The safe rule is to adhere to the plain language of the statute. A search for the spirit of a statute, beyond the domain of its language, is an uncertain voyage upon an unknown sea without the compass of a fixed principle, and guided only by the whims of the mariner.

No. 2. The second bill of exceptions states: the plaintiff having introduced the notes in evidence, and proof as to the signature and endorsements, and the defendant having entered upon her ease, produced T. E Scroggy as a witness, who testified that he was acquainted with Jerome Rowley, the person to whom the notes in controversy purported to have been endorsed, and with his handwriting; and defendant having introduced testimony previously, tending to show that said Rowley had advanced $100 in cash, as security for costs in this case, and other sums of money for taking depositions therein, offered in evidence the two letters, copies of which are hereto attached, marked exhibits “A” and “B,” and made a part of this bill, the said Scroggy having stated that said two letters were in the handwriting of said Rowley, and having so deposed; and thereupon the plaintiff objected and stated that he relied only on the title of the plaintiff, and that he had purchased in good faith and not on the title of Rowley; and defendant thereupon asked plaintiff whether it was admitted that said Rowley was not an innocent holder for value, to which the plaintiff responded, “ no.” Defendant insisted upon reading said letters to the jury, but the court overruled said offer, and both counsel and court told the jury, that under the statement of counsel for plaintiff they could not find a verdict for plaintiff, unless they found that he was an innocent endorsee of the notes in suit. Counsel for defendant excepted to the action of the court in refusing to allow the letters to be read in evidence. These two letters are as follows:

“A,” “ Mi. Yernoe, O., March 23,1881.
Mrs. Jennie Mansfield:
Yours of the 22d duly received which I take the earliest opportunity to reply to. I could come over any time but before coming I wish you to write by return mail — give me the amounts of the notes and when due. You know I would have to be an innocent purchaser, so keep all that passes between us strictly to yourself. As soon as I can hear from you I will let you know when I will come, or if it should he better for you to come here, meet me with the notes anywhere else. I will let you know.
Yours with respect,
Jerome Rowuey.”
“ B.” “ Mt. VBBkON, O., March 28,1881.
Miss Jennie Mansfield:
Yours of the 25th just rec’d and contents noted. In reply will say I have taken good counsel, confidential counsel, and it will be better for you to come here with the notes. If you will come I will pay your fare. It will not be necessary for you tobe here only one night. You can get here on the 2:17 p. m. train or the 6:54 p. m. if you come you need not let any one there know where you are going. If you come stop at the Philo House and drop me a line or telegraph me what day you will come. If you cannot come I will come there, but it would be best for you to come here, and when we meet I will tell you all that can be done and all that the best counsel say. If you come I will meet you at the train. You can have a veil over your face and not be known by any one and will not need any baggage but a carpet sack. Yours as ever, friend. J. R.
I will not say anything to Will or Beck or anyone else, all confidential as a friend, and if I cannot do you any good, will do no harm, this you can rely on. J. R.”

This bill of exceptions does not show, that up to this time any testimony had been given tending to prove a want of consideration in the notes, or fraud in their procurement; nor any statement of counsel of any expectation to offer such testimony ; nor any to prove plaintiff’s knowledge of the letters or connection with them; nor indeed to prove that the notes referred to in the letters were the notes in suit, or that there was any connection between them. . The only purpose claimed for them was to show that Rowley was not at the date of the letters, the owner of the notes, and might be inferred to have some knowledge of their infirmity. After the statement by counsel for the plaintiff in open court for the purpose of the trial, and the instructions of the court to the jury to the effect that plaintiff relied entirely on his own want of knowledge of any supposed infirmity in the notes, and not on Rowley; and that unless plaintiff himself was found to be an innocent purchaser he could not recover, rendered the proof contained in the letters, if otherwise competent, immaterial and its rejection not prejudicial. Grepel v. State, 32 Ohio St., 167.

Besides, the charge of the court to the jury wholly eliminates from the case all right of the plaintiff' to stand upon any claim of purchaser without notice, and submitted the case to the jury divested of all obligations on the part of the defendant to prove notice to any endorsee.

It is doubtful if the letters were otherwise improperly rejected.

1. It does not necessarily appear that the notes were the same in suit; nor was evidence given or offered to show they were. It will be presumed they were not. Every presumption will be made in favor of the judgment below.

2. It appears from these letters themselves, that Rowley was not the owner of whatever notes are referred to in them. It is well settled that the declarations of an assignor are not competent evidence against his assignee, made before the assignor had acquired title, or after he has parted with his title. His declarations, to be competent against the assignee, must be made while he is tbe owner. Abbott’s Trial Evidence, p. 11, secs. 27, 28, 27 and 39.

These letters are the mere declarations of Rowley before it is claimed he became the owner. The real ground upon which it is claimed by the plaintiff in error that these letters were competent, and therefore improperly excluded, is that they tend to prove a conspiracy. As before remarked, the bill of exceptions does not show that any evidence of a conspiracy, involving the plaintiff, had been given up to the time the letters were offered. The presumption in support of the judgment is that there was no such evidence. To make these letters competent on the ground of conspiracy, it was necessary that proof should have been first offered tending to prove the conspiracy, and that plaintiff was in the conspiracy. Until such proof was first given, the letters were not competent; and to show error affirmatively on the record, the bill of exception should show that such evidence of conspiracy was given. For these letters do not prove the fact of a conspiracy on the part of the plaintiff. They would merely be evidence of acts and declarations of one of the alleged co-conspirators in furtherance of the conspiracy.

The rule is: The acts and declarations of a conspirator may, after sufficient proof of the fact of the conspiracy, be given in evidence to charge his fellow — but then only such as were made and done during the pendency of the enterprise. Patton v. State, 6 Ohio St., 467.

The fact of conspiracy must first be proven by evidence aliunde, sufficient to establish, prima facie, in the opinion of the court, the conspiracy. Then, and not till then, are the declarations of one against the other competent. 1 Wharton Crim. Law, sec. 702.

No. 3. The third bill of exceptions relates to the exclusion of the entries on the appearance docket in an injunction suit of M. W. Roberts v. Mansfield et al., but to which suit the plaintiff, Briscoe was not a party. Proof of the loss of the original papers, and.the fact that a complete record had not been made up, was given before offering the appearance docket. These entries show, that March 22, 1881, Roberts filed his petition against the First National Bank of Xenia, O., Jennie Mansfield, M. Moch, H. Mayer, and the Peoples Bank of Wapakoneta, O., with allowance of temporary injunction; bond filed; summons issued and served March 23rd,24. The clerk states on the docket: “ plantiff prays for surrender of three promissory notes for $3,500, each purporting to be made by plaintiff, and for injunction restraining Xenia Bank from disposing of, and each of ihe other parties from interfering with same.” This is the clerk’s construction of the scope and purpose of the petition. No other proof of the contents of the papers was offered. If for no other, this testimony was not improperly rejected, for the reason that no sufficient secondary evidence of the contents of the pleadings was offered after showing that they were lost. The mere summary of what the clerk conceived to be the prayer and purpose of the petition was not sufficient proof of the contents of the lost record. It might be in part. But no offer was made to furnish complete proof as required by the rule. This action never passed into a decree, but was, as the appearance docket shows, continued from time to time. It was not claimed that plaintiff had any notice of this suit, nor is it claimed that the doctrine of lis pendens applies to negotiable paper. Stone v. Elliott, 11 Ohio St., 252; Howe v. Hartnees, 11 Ohio St., 449.

But it is claimed that the record might be competent for the purpose of shifting the burden of proof to the plaintiff under the case of Davis v. Bartlett, 12 Ohio St., 534.

That case decides, that upon the defendant’s proving the want of consideration and fraudulent tranferof the notes as between himself and the payee, it was incumbent upon plaintiff to show that he received the notes for valid consideration. Does this record tend to prove either want of consideration as between the defendant and Jennie Mansfield, or to prove a fraudulent transfer of the notes by her ? The petition is simply Roberts’ statement of his claim. The petition would not in a suit directly by Mansfield, be competent evidence to prove that there was no consideration for the notes. It is simply Roberts’ statement in his own behalf. Certainly it does not, as against the plaintiff, not a party to the suit, in any sense tend to prove either a want of consideration, or fraudulent transfer. It could not therefore have any effect’ toward shifting the burden of proof. Here again the bill of exceptions fails to show that any evidence whatever, was given by defendant to prove want of consideration, and we cannot presume it was given for the purpose of aiding the admissibility of the evidence rejected. The presumption is, in the absence of any showing in the bill of exceptions to the contrary, that the court below did its duty upon the facts before it, and therefore that it had the necessary facts before it to support its action. Bartlett v. State, 28 Ohio St., 669; Myls, R. 647; Johnson v. Mullin, 12 Ohio, 10; Palmer v. Yarrington, 1 Ohio St., 253; Wetmore v. Mell, 1 Ohio St., 26; Bethel v. Woodworth, 11 Ohio St., 393-397; Taylor v. Fitch, 12 Ohio St., 169; L. M. R. R. Co. v. Collett, 6 Ohio St., 182.

E. 3. Munger and John A. McMahon, for plaintiff in error.

T. E. Scroggy, for defendantjjin error.

The errors assigned $do not affirmatively appear on the record, and the judgment of the court of common pleas is affirmed with costs, but without penalty.