author: Haynes, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1899.)
    Before King, Haynes and Parker, JJ.
    THE ABNER L. BACKUS & SON’S COMPANY v. ALEXANDER BACKUS.

      Assignment for benefit of creditors — Eight of parties interested to close up—
    Although there is no special provision made in the statutes to that effect, yet under the decision of the supreme court in 46 Ohio St., 56, it is competent for the creditors and for the assignee and assignor, all agreeing, in cases of assignment for the benefit of creditors under the statutes, to consent to the discharge of the assignee and to the closing up of the affairs of the estate, and where all creditors except four consent that the assignment be closed up, and it appears that these four creditors have failed to present their claims for more than six months after due publication of the notice to creditors to present their claims, the fact that such creditors do not appear, and the want of their consent to the closing up of the assignment, will not prevent this being done and the assignee being ordered to pay over to the assignor the balance of the money in his hands belonging to such estate.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

In this action a petition in error is filed for the purpose of reversing the judgment of the court of common pleas in a case wherein the plaintiff in error was the plaintiff below and the defendant in error was defendant below, and which case was tried to the court and a judgment was rendered upon the finding of the court and the evidence.

The action below was brought upon two causes of action. The first cause of action alleged generally that the Abner L. Backus & Sons Company had, in 1893, on the 13th of June, made a general assignment for the benefit of its creditors, to the defendant, Alexander Backus; and it related that some two months after the assignment had been made, an application had been filed in the probate court of Lucas county, for the discharge of the assignee upon an extended statement that the assignor had settled with all the creditors ' of the company, with the exception of four — which are specified — -and that the costs of administration had been paid, and that thereupon an order was made in which it was ordered by the court that the assignee should be discharged and the property in his hands should be returned to the assignor. It was provided also in that order, it was said, that the assignee should give a bond, with certain conditions; and it alleged that these other creditors which had been mentioned, had never filed any claims, nor had any creditors filed any claims with the assignee from that day up to this, and that he had in his hands at the time this order was made, between $1100 and $1200, received from the sale of property which had been placed in his hands as assignee, and that this property belonged to these assigners and should be repaid to them, and they sue for the repayment of the sum stated, $1125.16, with interest from August 19, 1893.

The second cause of action sets out that certain bonds had been issued by the Union Elevator & Transportation Company, and that these were in the hands of the assignee and now remain — some $4,000 of those bonds — which belonged to the assignors, and that it should have judgment for the amount of those bonds — alleging, I believe, that defendant in error had disposed of them, or had proceeded to or was liable to dispose of them, and that it should have judgment upon those bonds. And this cause of action avers:

“It was further in said order provided that said defendant should give bond in the sum of twenty-five hundred dollars conditioned that if any creditors of plaintiff who had not consented to the vacation of said trust should thereafter present to said defendant their claims for payment, that said defendant would pay such claims. Said bond was so given by defendant, but plaintiff avers that there were in fact no other creditors of plaintiff excepting such ' as consented to the vacation of said trust as aforesaid”, etc.

In the answer, the defendant denies that the order of said probate court provided that said defendant should give a bond conditioned that if any creditors of plaintiff who had not consented to the vacation of said trust should thereafter present to said defendant their claims for payment, that said defendant would pay said claims; it denies that said bond was bo given by defendant,

The case came on for trial before the court of common pleas, as I have said, and upon hearing of the case a judgment was finally rendered in favor of the defendant, and it is to that judgment that the petition in error is prosecuted. It is said, among other things, that the judgment rendered by the court was against the weight of the evidence, and contrary to law. Some other points were made in regard to the rulings upon the evidence, but these are the main questions that are presented before us and which we shall pass upon.

Now, taking these causes of action inversely injtheir order as set forth in the petition, we have to say in regard to the bonds, that it appears, so far as we can understand the evideuce, that these bonds which are mentioned were a part of certain bonds which were issued by the Union Elevator & Transportation Company — a separate corporation, and which was the owner of an elevator on the other side of the river, but the stock of which company was owned very largely — and perhaps exclusively — by Mr. Backus, Sr., and the members of his family, and they were delivered under an arrangement whereby they were to be used to secure the payment of an indebtedness to the Second National Bank of Toledo — an indebtedness of the A. L. Backus & Sons Company' — which indebtedness amounted to about $92,000, and for which it would seem the bank held certain collaterals in the shape of warehouse receipts for grain of different kinds, with the provision that if any of the bonds should remain at the close or winding up of the affairs with the bank, that they should be turned over and held for the benefit of the parties interested in them, and it is admitted there were remaining at the close of the transaction some $8,000 worth of bonds, and these bonds were, by Mr. Charles F. Adams, the trustee of the bank, in the first instance turned over to Alexander Backus, and he allowed $4,000 of them to be used by Samuel R. Backus, and the remaining $4,000 were turned over to Mr. Edwin Jackson, a brother-in-law, and whose wife was a stockholder in the Elevator Company.

Upon the evidence adduced in regard to this matter, it was found by the court below that there was not sufficient evidence, or no evidence, as I understand it, to show that the plaintiff here — the Abner L. Backus & Sons Company —.was the owner'of these bonds at any time, or was entitled to them; and Jn that conclusion we agree. We are unable to see, from examination of the testimony, that Backus & Company ever^became the owners of these bonds, or ever beeame"entitled to the proceeds of them, except and in so far as they were used for the payment of the indebtedness of the Company to the bank; and it would naturally follow, as we think, if there was any surplus remaining of these bonds, after the execution of the trust, that they would remain for the benefit if those who had originally issued them or placed them in the trust, to-wit, the stockholders of the Elevator Company, and we are therefore of the opinion that the court of common pleas did not err in its decision íd regard to these bonds.

As regards the first cause of action, we come to a different conclusion. The report of the assignee to the probate court was made on the 19th day of August, 1893 — the assignment having been made on the 13th of June and this report having been made on the 19th day of August, which would be about two months after the assignment was made —and in this report he shows that there has been presented to him a large amount in value of claims, and by quite a large number of creditors; that some of the claims amounted to as much as $50,000, and some to $35,000, and so on down, which aggregated quite a large amount of money. He then says:

“Since said assignment has been made,all of the creditors except those hereinafter named have been paid in full, and no liability in their favor is now existing,and as is shown by the vouchers and exhibits hereto attached, they join the assignee in the request to this court that the trust may be vacated, the assignee discharged and he and his sureties released from further liability on account of their prior existing claims. That the following named persons and firms, creditors of said assignor, to-wit”: (And then he names four of them) “have been notified by the assignee that he is ready and able to pay them in full the respective amounts with interest, but they have hitherto failed to present any claim against the assignor or receive or receipt for the payment thereof to the assignee. He further shows that he has paid all costs of expense of administering the trust. Wherefore the undersigned asks that he be discharged from the further duties of his trust”, etc.

Thereupon the probate court made this order, reciting that these creditors had not come; reciting the names of the four creditors who had not come in and filed their claims, and finding that it would be manifestly just and for the interest of the defendant in error — which' would be the assignee here — that he be relieved from the further administration of said' trust, and then it proceeds:

“And the court being now fully advised in the premises, it is hereby ordered: all of the creditors except those as above named, in open court consenting thereto, that said trust be vacated and ths assignee released and discharged from further liabilities by reason of his trust, upon condition, however, that said Alexander Backus file forthwith a new undertaking in the sum of twenty-five hundred dollars, payable to the state of Ohio, for the use of the unpaid creditors of said Abner L. Backus & Sons Company, conditioned that he will, on demand, pay all unliquidated claims of said corporation. And said Alexander Backus having filed said bond, which is hereby approved, he is hereby discharged from said trust as assignee of Abner L, Backus & Sons Company; ordered that he pay the costs, taxed at $--

Now, in regard to the effect of this order, we had the matter before us in the case of State ex rel. Backus v. Millard, Probate Judge (15 C. C. Rep., 460), and we say in that case:

“So far as the bond is concerned, we think the true construction of this order is this: on the application simply to discharge the assignee from his trust, it is shown that all the creditors except four have been paid, and the object and purpose of giving that bond was to secure these four creditors if the bond of the assignee should be cancelled. The language of the order is as follows:
‘That said trust be vacated, and the assignee released and discharged from further liabilities by reason of his trust upon condition, however, that said Alexander Backus file forthwith a new undertaking, etc.’.
“We take it that the assignee was discharged. The intention of the court was to discharge him. The only thing the court was undertaking to do was, if it made a cancellation of the bond, to secure the creditors who had claims or accounts against the estate; and thereupon the order provides that as a condition of that cancellation a new'bond be given to take the place of the other, The clear effect of that is to discharge the assignee, without reference to the fact whether he gave a bond or not ”

Now it will be noticed that in the petition it is said that the court made an order that he should give a bond to pay the claims of creditors upon presentation. They have denied in the answer that he gave any bond of that kind, or that any order was made. No evidence is offered in court, save and except this journal entry, that any bond was given of any kind; and, if any was given, what the terms of it were, we do not know; nor — I will say — do we consider it very material.

In the case of Garver v. Tisinger, found in 46 Ohio St., at page 56, it is held by the supreme court of Ohio, that it is competent for the creditors and for the assignee and assignor, all agreeing, to consent to the discharge of the assignee at any time and to the closing up of the affairs of the trust. That had been done in a certain case, and an action was sustained for the recovery of an amount of money in the hands of the assignee that he had received in the capacity of his trust, and upon the determination of his trust it was held that it should be returned to the assignor. So, while there is no provision for this settlement made by the statute, yet by the decision of the supreme court of the state, these settlements are favored, and there can be no question in our mind that so far as the creditors who appeared there and consented, and so far as the assignee and assignor were concerned, the trust was closed. Now, in this case, there were four persons who were said to be creditors, who had not then filed any claims. They had been notified by the assignee, as he states in his report, that he was ready to pay them the amount of their claims, but they did not present them,and they have not been presented to the present time, and the averment of the petition is that they never have been presented, and there is no evidence that they have been. This matter was in 1893.

The statute provides — 'Section 6352:

“Creditors shall present their claims within six months after the publication of the notice hereinbefore provided for, unless further time is allowed by the court to the assignee or trustee for allowance, and the assignee or trustee shall endorse his allowance or rejection thereon * *

It appears that this notice or publication was given. There is no denial of that. There has no extension ever been given by the probate court for the parties to file their claims, and they have never, in fact, been presented. It is claimed on the part of the assignee that he retains these $1,100 or $1,200 to meet these claims whenever they shall be presented.

The supreme court, in 41 Ohio St., 295, in Carpenter v. Dick, hold that:

“Under the statute relating to insolvent debtors the creditor of an assignor who Joes not present his claim prior to the payment of a dividend and within six months after publication of the notice of . assignment, may afterwards present his claim and receive a dividend thereon, equal to that paid to other creditors in case there is money or assets remaining in the hands of the assignee sufficient to make such payment. ”

How long this assignee claims that he may hold this money, does not appear by the record. He claims the right still to retain it. We think under the state of facts existing that these creditors were still bound to present their claims within six months, and that if the claims were not presented within six months, they were barred unless the creditors could show that there were assets in the hands of the assignee belonging to the estate; but we see nothing in the action of the probate court which would prevent the assignee from pleading that he had administered upon the estate; that he had paid over the money to the assignor, and that he had no money in his hands under the trust, to be distributed, and we are unable to see any reason why he might not at the expiration of said six months from the giving of the notice have paid over these moneys to the assignor and have plead that forever afterwards as a bar to any action or claim that might be presented by these four creditors. They are not here presenting their claims; it is the assignee himself still saying that he must hold this money for the benefit of these parties. We think that the determination of the trust will bar those claims. We think the right of the assignor is clear to recover this money.

King & Tracy, for Plaintiff in Error.

L. H. Pike, Seney, Johnson & Friedman, for Defendant in Error.

The judgment of the court of common pleas was for the defendant. Under the pleadings in the case, we do not see that we can render a judgment upon the facts stated in the bill of exceptions. The case will be returned to the court of common pleas for a new trial.


source: Caselaw Access Project

author: Marvin, J.

license: Public Domain

text:
    (Eighth Circuit — Cuyahoga Co., Circuit Court
    Jan. Term, 1899.)
    Before Caldwell, Hale and Marvin, JJ.
    THE STATE OF OHIO ex rel. P. H. KAISER, County Solicitor, v. ALBERT E. AKINS, as Auditor of Cuyahoga County, Ohio.

      Compensation of Auditor of Cuyahoga county — Sec’s 1069 and 1070, B. S.

    (1). Under the act of 1889, for the purpose of determining the compensation to which the auditor of Cuyahoga county is entitled, such auditor is entitled to include with and as part of the fees, costs, percentages, penalties and other allowances and perquisites accruing to his office as auditor, the compensation piovidsd for county auditors by sections 1069 and 1070, R. S.

      Construction of doubtful statute observed in departments—
    (2). When the practice in a department in interpreting a statute is uniform, and the meaning of the statute, upon examination, is found to be doubtfni or obscure, the court will accept the interpretation by the department as the true one.
    Appeal from the Court of Common Pleas of Cuyahoga county.
   Marvin, J.

The case of the State of Ohio on relation of P. H. Kaiser, county solicitor, against Albert E. Akins, auditor of Cuyahoga county, is now before us. Akins is the auditor of Cuyahoga couDty. For his services as such officer, he is entitled to be paid as provided by the statutes of the state.

He claims that the amount to which he is entitled, is made up, in part, by taking into account the provisions of sections,10G9 and 1070,Revised Statutes. Acting upon this view, he has made out and presented to the commissioners of said county a claim for SI,387.23 for the month of July, 1898, and the same was approved and allowed by said commissioners, and he was about to draw said sum as a part of the fees, costs, percentages, penalties and other allowances and requisites accruing to his said office as such auditor.

This action is brought to restrain and enjoin the defendant from drawing his warrant upon the county treasurer for any amount in favor of himseif as auditor, in which shall be included any sum made up of the allowances mentioned in said sections.

The act regulating the pay to whicbt the present auditor of Cuyahoga county is entitled, is found in volume 86, Ohio Laws, 264, and was passed on the 12th of April, 1889.

The first section of this act provides for a salary of twenty-five hundred dollars to be paid to the auditor.

The fourth section provides that one-half of all fees, costs, percentages, penalties, allowances and. other perquisites which are now or may hereafter be allowed by law shall be for the sole use of the county; the remaining one-half shall be disposed of as provided in section 10. This last section (section 10), provides that in addition to the salary provided for in section 1, the officer shall have all that shall remain of one-half of the fees, costs, percentages, penalties, allowances and perquisites accruing to his office, after deducting therefrom an amount equal to one-half the salaries paid to the assistants in his office. The fees, etc., which are so to be divided into two equal parts, are povided for in different sections of the statutes, and made up of different items.

Section 1096, Revised Statutes, provides that county auditors shall receive as compensation per annum for the services a certain amount based upon the male inhabitants of the county above the age of twenty-one years.

Section 1070 provides that the several county auditors shall receive compensation for their services in addition to that provided for in section 1069, and this is also based upon the number of male inhabitantsof the county above the age of twenty-one years of age.

The entire controversy in the present case is as to whether the auditor of this connty is entitled to the benefits of the provisions of these two sections: that is, in estimating the “fees, costs, percentages, penalties, allowances and perquisites accruing to his office,” one-half of which, after deducting an amount equal to one-half the salaries paid to the assistants in his office, such officer is to have as a part of his compensation.

Until an act was passed by the legislature in 1888,found in volume 85, Ohio Laws, 69, the auditor was paid entirely in fees,including this compensation provided for in sections 1099 and 1070.

By the act of 1888, it was provided that the auditor should be paid an annual salary of five thousand dollars, and that this should be the only compensation which he should receive.

The 15th section of this last-named act (85 Ohio Laws, 69), reads:

“Any provision of statutes in force when this act takes effect which conflicts with any provision of this act, shall, to the extent that it is inconsistent with the latter, and not otherwise, be held to be superseded by this act as to counties described herein; but other provisions of statutes so in force relating to county officers and county affairs shall not be affected by this act.” •

It will be noticed that nothing has been said about the compensation of other officers in this act: but the later act provides as well for the compensation of other officers as well as of the auditor. But since it is only the compensation of the auditor which is being considered, we have not spoken of the acts as they affect the compensation of other county officers.

This statute was never acted upon, and in 1889 the statute hereinbefore referred to as that under which the present auditor is to be paid, was passed. The repealing section reads exactly as that in the statute of 1888,

Attention has already been called to section 4 of this act, in which it seems to be clearly required of the auditor to collect, as he had before done, all fees, costs, percentages, penalties, allowances and other perquisites which are now or may be hereafter allowed by law for the performance of official dutv.

Unless the collection by him of the compensation provided for in sections 1069 and 1070 would be in conflict with some provisions of the statute of 1889, or that such compensation is not included in the words “All fees, costs, percentages, penalties, allowances or other perquisites,” it would seem to be his duty still to collect it, for it is only where the provisions of statutes in force when the latter act took effect, conflict with the provisions of this act, that the former are superseded. It is true that such conflicting provisions are superseded to the extent that they are inconsistent. But it will be observed that the language of the section is not that inconsistent provisions are superseded, but that conflicting provisions are superseded to the extent that they are inconsistent. It does not seem clear that there is a conflict between the provisions of sections 1069 and 1070 on the one side and the provisions of the act of 1888 on the other, even if it be held that the compensation provided for in these two sections is included in the words, already quoted, in the fourth section of the latter act, though it might be an idle thing to draw money from the treasury which should be immediately returned thereto.

In any event the legislature seems, by the enactment of 1889,to have intended to entirely supersede the act of 1888 • — -no mention or reference is made to it in the later act; it seems to be treated as though it had never existed, and as it never went into operation at all, at least so far as the auditor is concerned, it would seem as though it might well be treated in considering his rights as though it had never been. So treating it, and construing the act of 1889 without any reference to the act of 1888, and all appearance of conflict or inconsistency growing out of making the collections of this compensation aridjpaying it again into the treasury disappears.

It is urged, however, that the^compensation, ’"provided for in sections 1069 and 1070, is not included in the words “All the fees, costs, percentages,^penalties, allowances'and perquisites accruing to his office.”

Were it not for the fact that to allow both the salary provided for in the act’of 1889,"^and also to^allow this compensation, would seem to entitle the officer to draw from the treasury, on two separate"claims,"neitherAf which is on account of fees allowedjior any" specific service, it would hardly seem reasonable to say"that_where_one^has received “All the fees, and all the^costs and all the percentages and all the penalties and all the allowances and all the perquisites accruing to his office,” he would still be entitled to receive additional pay. Such would not be the ordinary construction of language, nor does it seem probable that such was the intention of the legislature in the use of these words in any of the statutes under consideration,

It must be conceded that the means of determining the pay of the auditor under the act of 1889, is not entirely clear. There is, and well may be, doubt as to what was intended by the legislature, should be included in sections 4 and 10 of the act, and such doubt, reasonably existing as to the true construction to be given .to the statute, the court feels justified in inquiring into the practical construction given to this and similar statutes by those officers whose duty it is to practically administer the public business under these statutes.

The act of 1889 was passed on April 12th, and in November of the same year the auditor was elected by the county and held office for three years. During all that incumbency, he and the other officers, whose duty it was to administer the law, thus construed the statute' to include the compensation allowed by section 1069 and 1070.

In November, 1892, another auditor was elected, and he held the office for three years,and during his entire incumbency all the officers whose duty it was to administer the statute with reference to the compensation of the auditor of the county, so construed the statute.

In 1895, the present auditor was elected, and he had been in office about two years when his right to take into account in determining what pay he should receive, the compensation allowed by sections 1069 and 1070, was questioned.

It would manifestly be a very much greater hardship to the auditor to have the construction now placed upon the statute which by the petition it is sought to have placed upon it, than it would have been if placed upon it before the auditor entered upon the duties of his office.

Evidence shows that the compensation of the auditor would be very greatly reduced by giving the construction claimed for it on the part of the plaintiff in this action, It is true that there would be left compensation equal to that of some of the other officers of the county, and greater than that of many county officers in other counties. But the present auditor accepted the office and entered upon the discharge of its duties with the knowledge had during the six years preceding his taking the office,the construction by all the officers of the county, whose duty it was to administer the law, had been such as the auditor now claims it should be. Presumably, he has acted upon the understanding that his compensation was such as it is, provided the construction which he claims and which had been followed during the six years in which the law had been in force preceding his acquisition to the office is correct.

We think this should have some weight in the determination of the case. But in addition to the construction which has been given to the statute in this county, we have what has been done in Hamilton county.

In 1870 an act was passed as to the compensation of officers of Hamilton county, which act is found in 67 O. L., 36, and the first section of that statute provides in almost exactly the words of sections 4 and 10 of the act under which the present auditor of this county receives his compensation; that is to say, it uses the words “All fees, costs, percentages, penalties,” etc. — 'substantially the same words that are used in the statute applicable to this county. It provides for a fee fund into which monies collected by the auditor for fees, costs, percentages, penalties, etc., shall be paid, and out of that fund he shall receive a compensation of five thousand dollars.

Various amendments to that statute were passed, none of which need be considered here. But in 1879, when the actj’ revising the statutes of the state was enacted, which was on the 20th of June, 1879, this section, section 1341, was enacted. That was, by its terms, applicable both to Cuyahoga and Hamilton counties. As to Cuyahoga county, it has, by the statutes, been repealed or superseded, It is however, still in force in Hamilton county. Section 1341 reads:

“The fees, costs, percentages, penalties, allowances, and all other perquisites of whatever kind, which, by law, the clerk of the courts, probate judge, sheriff, either as such, or as special master commissioner, or receiver in any case, treasurer, auditor, recorder, and coroner, in Hamilton county, may always receive and collect for any official acts as rendered, shall be received and collected by said officers respectively, for the sole use of the treasury of said county as public monies belonging to it, and shall be accounted for and paid over as such in the manner hereinafter provided.”

Section 1345 provides:

“After deducting from the whole amount of the costs, fees, percentage, penalties, allowances, and perquisites collected by said officers collectively during each year, the amount allowed and paid for the compensation of deputies, cleks, bookkeepers, and other necessary expenses of said officers, each shall be allowed to receive an annual compensation for his services out of the costs, fees, percentages, allowances, perquisites and penalties so collected and paid into the fee fund in Hamilton county, as follows: * * * ”

And among those salaries paid out to said officers, there shall be paid to the auditor the sum of five thousand dollars.

The evidence establishes here that the construction which has been given to these statutes applicable to Hamilton county by the officers whose duty it was to administer those statutes, from the time of the enactment of the last statute down to the present time, is to include in the “fees, costs, percentages, penalties, allowances, and other perquisites,” this compensation provided, for in sections 1069 and 1070. If the statutes were clear that the compensation provided in sections 1069 and 1070, was not to be included, the court would not feel justified in resorting to the practical construction which has been given to these and to the statutes relative to Hamilton county, in determining what construction to give. But, since, .us we have said, we regard it as a matter of doubt as to what the intention of the legislature was, we feel justified in so looking to the practical construction which had been given to these and similar statutes.

We feel justified in doing this,, by authorities cited to us in brief of counsel, especially in case of The United States against Healey, 160 U. S., 136. The last clause of the syllabus in that case reads:

“When the practice in a department in interpreting a statute is uniform, and the meanings of the statute upon examination, is found to be doubtful or obscure, this court will accept the interpretation by the department as the true one. * * *

It should be said that the statute under consideration, which was being construed, was the statute as to the public lands, at what rate or price such lands might be sold, and whether the land spoken of as desert lands which might be acquired for a price less than other lands, would include such desert lands when they are found among the alternate sections of lands which had been donated by the government for the construction of nublic enterprises — of railroads and other public enterprises; in this case, railroads.

The language used by the court is:

“If, prior to the passage of the act of 1891, the Interior Department had uniformly interpreted the act of 1877 as reducing the price of alternate reserved sections of land along the lines of land-grant railroads, being desert lands, from $2.50 to $1.25 per acre, we should accept that interpretation as the true one, if, upon examining the statute we found its meaning to be at all doubtful or obscure. ’’

P. H. Kaiser, for Plaintiff.

Wilcox, Collister, Hogan & Parmely, Phillips & Phillips, for Defendant.

In 58 N. J. Law, 515, the State v. the City Council of Camden, the question being considered was, whether under the charter of the city of Camden, an ordinance, which had not been read in full three times before its passage, had become a lawful ordinance of the city.

The charter provided that before an ordinance should be adopted, it should be read three times in the council. The ordinance being considered had been read, not three times in full, but it had been read by its title on the third occasion, if not on more than one occasion.

The language of the statute providing for three readings was,if not in the exact words, substantially in the words of the constitution of the state of New Jersey.

The constitution of the state of New Jersey provided that all legislative enactments should be read three times in the legislature before being adopted.

The court says, in passing upon the Camden case: “Because that the construction given to that provision of the constitution by the legislature for a long series of years, was that the statute might be read by its title only, and that such construction having been given to it by the legislature of the state, the court will give the same construction to this charter of the city of Camden,”

Section 309, Sutherland’s Statutory Construction, justifies, as we think, the course here adopted. And for the reasons stated, the petition of the plaintiff will be dismissed.


author: King, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1899.)
    Before King, Haynes and Parker, JJ.
    JOSEPH SCHLITZ BREWING COMPANY v. CHARLES BLACKLAY

      Evidence — Testimony correcting allegation and testimony of plaintiff-

    <1). In an action for damages for injury by a vicious horse, it appeared that one of the horses belonging to the team, called “Nelly ”, was not a vicious animal, while the other, called “Pearl”, was. Plaintiff in his petition and on the witness stand stated that the horse which injured him was “Nelly”. It appeared that plaintiff in the lice of his duties had nothing to do with these horses, and was little acquainted with them. Plaintiff produced other witnesses well acquainted . with the horses, from whose testimony it appeared that the horse which did the injury was “Pearl”, the vicious animal. Held, the court did not err in admitting this testimony.

      Excessive verdict — What motion must state — •
    (2). A motion for a new trial on the ground that the verdict is excessive, must state in the language of the statute that “the verdict is excessive appearing to have been given under the influence of passion or prejudice.”
    Error to the Court of Common Pleas of Lucas county.
   King, J.

This is a petition in error to reverse the judgment of the court of common pleas of this county. Blacklay brought suit in that court against The Jos. Schlitz Brewing Company, a corporation organized under the laws of the state of Wisconsin, doing business at Toledo, Ohio, alleging that on or about October lá, 1897, said company owned and kept a horse “which it knew was accustomed to kick mankind and which it well knew was of a fierce and dangerous nature”, and that this horse, while the plaintiff was employed as a night watchman for the defendant,Jgot loose, and without any negligence or carelessness on his part — he not having any knowledge of the character of the horse — it kicked him, whereby he suffered serious"injury ;'and he recovered on the trial a verdict of $1,250. This amount the court thought was excessive and required the plaintiff to enter a remitter for $500, or grant a motion for a new trial. Plaintiff below agreeing to accept, a remitter was entered and a judgment rendered for $750.

Now it is asserted that a new trial should have been granted in this case;,and the principal reason urged is, that the verdict does not show that the horse was'vicious, That is one of the reasons and was the principal one argued. Others will be noticed incidentally. I have not time to go over the evidence. The plaintiff in his testimony swore that in the night time, about twelve o’clock, while he was employed as a watchman at the storehouse of this Brewing Company, one of the horses got loose from the stable and came into an open area or hallway and ran there; that he went up to the horse to catch it, and it wheeled and kicked him in his side. He- testified that when he saw the horse, he spoke to it and called it by name; that he called it “Nelly” — and I think in substance he testifies that that was the name of the horse — but that he didn't have much to do about the horses. The other evidence in the case shows that “Nelly” was one of a team of horses which was in the stable, and the other horse of this team was called “Pearl. ” The defendant accepting the plaintiff’s designation of the horse as “Nelly,” brought considerable evidence to show that that horse was of a kind disposition, and probably on that question the weight of evidence is with the Brewing Company — that “Nelly” was a horse of a kind and gentle disposition — and I think it quite likely that that was true; but, unfortunately for the defendant below, that issue does not dispose of the question whether one of the horses belonging to the Brewing Company was of the character ascribed to it in the petition, and whether it committed this injury, There were two horses used in the team, and the name that the other horse was known by was “Pearl,” and there is a great deal of evidence in the record to show that “Pearl” was a horse of a vicious disposition; that it had kicked one or two people, and was accustomed to kick and to bite and thresh around generally — was a dangerous horse. On the night in question this man was kicked so that, he was practically unconscious, at least was not able to move very much, and while he lay there on the ground somebody who heard him hallooing came into the place where he lay and asked him what was the matter, and he said he had been kicked by the horse which had run back into the barn, The other man ran back and tied the horse, and he says that the horse stood in his stall, which was the second stall from the end of the row of stalls in the stable, and he tied him by getting around by his head through the stall of another horse. Three witnesses, employes of the defendant company, swore that “Nelly’s” stall was the end stall, and that “Pearl’s” stall was the second one from the end. They ought to know. They testified that they had worked there for months and knew exactly where these horses stood, and if that evidence is to be believed, then the horse that kicked the plaintiff below was not “Nelly”, but “Pearl,” and the evidence without contradiction, shows that that horse was of a vicious and dangerous character,and upon that view of the testimony we think the verdict is fully sustained by the evidence. I might say that there was one at least of the witnesses who swore that “Nelly” was a very dangerous horse, but I think perhaps the weight of the evidence was against that witness’ testimony, because generally they swore that “Nelly” was a horse of very kind and gentle disposition.

It is claimed that there was error in the admission of testimony, but we do not find any such error. We think there was no testimony admitted that would have been prejudicial to the plaintiff in error.

It is claimed that the plaintiff below contributed to his injury. But nobody saw this injury inflicted, nobody testified to this occurrence but the plaintiff himself, and from his own statement of the facts we do not think he was negligent. He says he spoke to the horse and called it by name; he supposed it was “Nelly”, and he called it “Nelly,” and as he reached out to take hold of the halter, which was a short strap which had been broken off, the horse whirled and kicked him, It is said that he did not approach the horse’s head, but according to his statement and his story generally, that was clearly the way that'^he undertook to get at the horse. It was said that he ought to have had knowledge of the character of this horse. The evidence does not support that claim. He had worked in the brewery a few months, and had driven one old horse to a single delivery wagon. During that time he took care of that horse, but he had nothing to do with the other horses; his attention was not directed to them except at this particular time. At the time of the injury, the brewery having no work for him as a driver, had permitted him to reinain there on some small wages and act as a night watchman, to look around on the outside of the barn and buildings and see that everything was kept straight. He had nothing more to do with the teams than that; he did not clean the horses, and did not take care of them in anj way except to put down a little hay for them in the morning, and the evidence does not indicate that he knew anything about the team • at all except that he had seen them in the barn, and seen them hitched to the wagons.

We are not prepared to say that the verdict was excessive; the motion for a new trial so alleges, but it does not allege in the language of the statute that it is’ excessive as appearing to have been given under the influence of passion or prejudice. It may have been a little large without being excessive on the ground that it was given under the influence of passion or prejudice. If the plaintiff’s story and! that of his doctor is to be believed, the verdict itself was not particularly excessive; but the court believed it to be large and required the plaintiff below to remit $500, leaving the amount of the judgment to stand at $750, and that, in view of all the testimony, we think is not excessive, and therefore the judgment is affirmed.

Seney & Johnson, for Plaintiff in Error.

Ashton Coldham, for Defendant in Error.


author: Smith, J.

text:
    (First Circuit — Butler Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Smith, Swing and Giffen, JJ.
    J. C. FRAZIER, Assignee, v. F. M. WILKINSON and J. H. ROCE, Trustees of Jennie Wilkinson.

      Spendthrift trust—

    (1) . A grantor has the right in his deed to the trustee to limit the equitable title thereby conveyed to the beneficiary and to prevent the application of any part of the interest given to her from being applied before being turned over to her to the payment of her debts, and in such case a creditor of the béneficiary can not by means of a creditor’s bill require such trustee to pay the claim of such creditor, from the rents thereafter to be received from the land.

      Same —

    (2) . The trustee in such case may permit the beneficiary to occupy the premises and receive the cents thereof.
    Error to the Court of Common Pleas of Butler County,
   Smith, J.

We are of the opinion that the court of common pleas did not err in overruling the demurrer filed to the answer of the defendant, the trustee, or on failure of plaintiff to plead further, in dismissing the action. That when the absolute owner of property, conveys it to a trustee, for the benefit of another during her lifetime, the said trustee has the right during the life time of the beneficiary to control the occupancy of the estate for the use of the beneficiary,or to allow her to use and occupy the same, and receive the rents thereof, and when such conveyance contains a provision, that no interest in the above described real estate is to be incumbered by the beneficiary by mortgage, deed or other conveyance, or by judgment lien, nor to be subjected by any legal or equitable proofs for the payment of her debts or obligations, and when the trustee has retained the full control of the estate, and there is no money in his hands arising therefrom to which the beneficiary is entitled, that a creditor of the beneficiary can not by means of a creditor’s bill require such trustee from the rents thereafter to be received from the land, to pay the claim of such creditor.

We think it was the manifest intention of the person making this conveyance to the trustee, to limit the equitable title thereby conveyed to the beneficiary, and to prevent the application of any part of the interest given to her from being applied, before it was turned over to her, to the payment of her debts, and that the grantor had the right to do this. This conclusion, we think, is supported by the following authorities. 133 Mass., 170; 91 U. S., 716; 23 Atlantic, 383; 19 Atlantic, 393; 14 C. C., 547.


text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Oct. Term, 1898.)
    Before King, Haynes and Parker, JJ.
    EMMA B. GREEN v. BENJAMIN RAITZ.

      Motion Docket not required by statute — Competent as memorandum—
    Where there is nothing in the statute requiring a motion docket to be kept in a court, but a motion docket existed in the court, was the docket upon which the motions were placed, and the entry overruling a certain motion, together with the date on which it was made, appeared thereon, in the handwriting of the judge before whom the motion was heard, it is perfectly competent to submit ^hat document to such judge as a written memorandum of the date upon which the motion was actually overruled, and if an error appears in such date as entered,to have it corrected.

      Date of entry of overruling motion for new trial material—
    (2). The date ia as much a part of the entry of the overruling of a motion for a new trial as any thing connected with it.
    Same—
    (3.) Under the present statutes as to bills of exceptions, it is essential that the journal should show the actual date on which a motion for new trial was overruled.

      Right of court to correct erroneous entry as to date—
    (4.) There can be no doubt of the right of the court where it appears that an error was made in an entry in the docket as to the date at which a certain matter transpired, to have such entry corrected to show the true date thereof.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

The petition in this case was filed to reverse the action of the court of common pleas in granting a nunc pro tunc order to correct a journal entry. A cause in which Emma B, Green was plaintiff was tried in the court of common pleas before Judge Pratt, and such proceedings were had that a verdict was rendered by the jury against the plaintiff. Subsequently a motion for a new trial was filed by the plaintiff, Emma B. Green, which came on to be heard, and was overruled on the 27th day of November, 1897. The journal clerk in making the entry of the judgment overruling the motion, entered it as of the first day of December, 1897. The plaintiff in error excepted to the action of the court, and took leave to file a bill of exceptions, and was given fifty days from the overruling of the motion in which to file her bill of exceptions. On the 18th day of January, 1898, a motion was filed by the defendant in error to correct the journal entry so as to show that the motion for a new trial was overruled on the 27th day of November, and not on the 1st day of December. That came on for hearing on that day before Judge Pratt, and the defendant in error —Ihe defendant below — 'offered in evidence the motion docket. Testimony as to the motion docket was offered that the entry thereon was in the handwriting of Judge Pratt, and was made at the time the motion was overruled,, the testimony being taken of ihe deputy clerk. Subsequently the docket was offered to the court, it beingJ_ admitted by both parties that the entry was made in the handwriting of Judge Pratt. Upon that the defendant in error submitted hie motion without further evidence. Somejestimony was offered on behalf of the plaintiff in error, not in regard to the correctness of the date on which the motion was overruled, to-wit: on the 27th day of. November, but by way of excuse for not having the bill of exceptions finished before the time at which it was submitted; for it appears inferentially, though not directly, that the bill of exceptions had been submitted to the court of common pleas on the 17th day of January, 1898. If the motion had been overruled on the 1st day of December, the handing of that bill of exceptions to the court on the 17th day of January would have been in time; if the motion was overruled on the 27th day of November, then it would be two days too late.

The real objection made by counsel for plaintiff in error is, that this docket is not evidence of the time when the motion was overruled. He does not claim that he was not present or did not know the day it was in fact overruled, but says that subsequently, a week or so before the filing of his bill of exceptions with the court, he looked on the journal and saw it was entered on the 1st day of December. It is true, as suggested by counsel, that there is nothing in the statute requiring the motion docket to be kept in this court, and it has been argued in this case and it has been argued before in this court that the entries upon it are no evidence whatever. T do not think it is necessary to discuss that here now. This motion docket existed in that court, was the docket upon which the motions were placed, and the entry overruling the motion, together with the date on which it was made, was entered in the handwriting of Judge Pratt, before whom this motion was being heard; and upon that fact being proved,' it was perfectly competent to submit that document to him as a written memorandum of the date upon which the motion was actually overruled. He had a right to act upon it, and he had a right to make an entry, as he did, that the journal be corrected so as to bear date the 27th of November.

F. M. Sala, for Defendant in Error.

M. B. Lemmon, for Plaintiff in Error.

It is argued that this is not a nunc pro tunc entry. But the date is as much a part of the entry as anything connected with it. As the statute now exists, it becomes necessary that the journal should show the actual date on which the motion was overruled, and it should be clearly and correctly stated. If not, we have, no doubt of the right of the court to make a proper entry, so as to show the actual date on which the matter transpired. We see nothing in the evidence that would operate a estoppel to the making of the motion. The judgment of the court of common pleas will therefore be affirmed.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Smith, Swing and Giffen, JJ.
    IN THE MATTER OF THE ASSIGNMENT OF H. K. ROBERG & COMPANY.

      Classification of counties inadmissible—
    (1) . The doctrine of classification does not extend to counties, so as to render an act conferring jurisdiction on courts uniform in its operation, which would otherwise be local.

      Court of insolvency of Hamilton County — Act of April 35, 1898r amending act of May 31, 1894, unconstitutional—
    (2) . The act of April 25, 1898, (93 O. L., 669) conferring jurisdiction on the court of insolvency in certain matters, and withdrawing such matters from the jurisdiction of the common pleas court, and conferring the right to appeal or prosecute error directly from the court of insolvency to the circuit court, and withdrawing the right to appeal or prosecute error to the common pleas, is unconstitutional for lack of uniform operation.
    Heard on motion to dismiss appeal.
    Giffen, J.; Smith and Swing, JJ., concur.
   H. K. Roberg & Co., a partnership composed of Roberg, Schrorer & Meehan, by deed assigned its property to Jerome D. Creed for the benefit of its creditors. The deed was filed in the court of insolvency of Hamilton county, Ohio. Greed qualified and was acting as assignee, when Meehan,one of the partners, filed his motion to set aside the deed of assignment on the ground that he had not signed it. The court having overruled his motion, Meehan appeals directly to this court, basing his right to do so upon the act of April 25th 1898, 93 O. L., 669, which amends sections 9 and 13 of the original act by which there is established “in any county of this state containing any- city of the first grade of the firs! class a court of records, which shall be styled ‘the Court of Insolvency,’ ” passed May 21st, 1894, (91 O. L., 844).

The original section 9 conferred jurisdiction on the court of insolvency in all matters of assignment.

Section 9,as amended,confers original and exclusive jurisdiction in matters of assignment, and adds the following:

“Also, in all casas for the appointment of receivers for insolvent corporations, and actions for the dissolution of insolvent corporations; also, in all actions relating to injunctions in regard to the collection of taxes or assessments, or to recover back taxes which have been illegally paid; also, in all actions in replevin brought against an assignee for the benefit of creditors, or for the recovery of assets assigned to an assignee for the benefit of creditors; also, in all actions brought under sections 6352 and 6353 of the Revised ¡Statutes of Ohio; to enforce claims which have been disallowed by the assignee for the benefit of creditors.” * * * “And ail laws now in force, or that may be hereafter enacted, regulating the mode and manner of proceeding in such cases by the probate court or common pleas court shall be held and deemed to extend to the said court of insolvency, and the said court of insolvency shall have like jurisdiction and power in all of the above matters and actions as are now by law, or may hereafter be by law, conferred on probate courts or common pleas courts in like matters or actions.’’

Section 13 of the original act provided that the mode and manner of appeals from probate court shall extend to the court of insolvency.

Section 13, as amended, is as follows:

“Appeals and error may be prosecuted from any judgment, order or decree rendered by the court of insolvency in any action or matter provided for in section 9, above stated, to the circuit court of such county, and all laws now or hereafter enacted regulating the mode and manner of appeals and error from any judgment, order or decree rendered by the court of common pleas, shall be held and deemed to extend to said court of insolvency. ’’

The amended section 9 not only confers additional jurisdiction on the court of insolvency, but withdraws it from the court of common pleas of Hamilton county, to-wit:

(1.) In all actions for the appointment of receivers for insolvent corporations; (2.) Actions for the dissolution of insolvent corporations; (3.) In all actions relating to injunctions in regard to the collection of taxes or assessments; (4.) To recover back taxes which have been illegally paid; (5.) In actions in replevin brought against an assignee for the benefit of creditors; (6.) To enforce claims which have been disallowed by the assignee for the benefit of creditors.

In thus depriving the common pleas court of Hamilton county of its jurisdiction in these matters — in thus making the original jurisdiction of the court of common pleas of Hamilton county differ from that in other counties — it is claimed the legislature violated article 2, section 26, of the constitution, which provides that “All laws of a general nature shall have a uniform operation throughout the state. ”

In the case of Kelley v. State, 6 Ohio St., 269, at page 272, it is said:

“But the courts of common pleas in Ohio are an organization of a general nature, for the organic law of the state provides for their existence in every county; they are an important agency in the administration of justice throughout the state, and are by law clothed with a jurisdiction over every citizen. The laws then which relate to and regulate their organization and jurisdiction are laws of a general nature, and are imperatively required to have a uniform operation throughout the state.”

That section 9, as amended, relates to and regulates the jurisdiction of the court of common pleas of Hamilton county is clear — for it gives the court of insolvency exclusive jurisdiction of certain matters of which the courts of common pleas in other counties have jurisdiction, and deprives the court of common pleas of Hamilton county of its jurisdiction in these matters, and it is therefore required to have a uniform operation throughout the state. This requirement is conceded by counsel for appellant, but it is urged that the section has such uniform operation by reason of its application to “any county of this state containing any city of the first grade of the first class.” In other words, that classification may be applied with like effect to counties as to the organization of cities.

In reference to this class of legislation the supreme court, in a recent case, says:

“But, if its subject matter is not a proper subject of local legislation, this attempt to give it the form of a general law can be of no avail, as has been frequently decided by this court.” Silberman et al. v. Hay, 41 W. L. B., 227,

In a still later case it says:

“While the election laws of cities may be valid under the doctrine of classification, that doctrine does not extend to •counties, and election laws for counties are required to have uniform operation throughout the state.” The State of Ohio ex rel. v. Hugh Buckley et al., 11 W. L. B., 35,

If it be necessary to withdraw certain matters from the jurisdiction of the court of common pleas and add them to that of the court of insolvency, no sufficient reason of a local nature has been suggested why this should be so in Hamilton county that does not apply to any and all the counties of the state. It is true there is more litigation in a large county. But, as said in Silberman et al. v. Hay, supra, “this difference can and bas been provided for by increasing the judicial force of the subdivision in which the county is situated.”

We are of the opinion that section 9, as amended, is unconstitutional and void; but the question still remains, is section 13, as amended, under which this appeal was taken, ■also invalid ? The two sections constitute one act only, passed April 2oth, 1898. Undoubtedly one section of an ■act may be declared unconstitutional and another constitutional when they are independent of each other. But if they are so mutually connected with and dependent of each other as to warrant a belief that the legislature intended them as a whole, and if all could not be carried into effect the legislature would not have passed the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent or connected must fall with them. 2 Gray, 98, cited in 5 Ohio St., 507.

The additional jurisdiction conferred by section 9 on the court of insolvency and withdrawn from the court of common pleas of Hamilton county virtually made the former court a common pleas court as to certain matters, and the legislature naturally provided that appeals be takeü to the circuit court just as appeals from the common pleas court generally are taken to the circuit court.

Again, section 13 provides for appeals in any action or matter provided in section 9, and makes mention of matters transferred from the probate court under section 10 of the original act, which circumstance clearly indicates that the right of appeal to the circuit court was given because of the additional jurisdiction conferred by section 9, and it is not reasonable to suppose that the legislature would have enacted section 13 alone and without also enacting section 9. If we are right in this position, it furnishes an answer to the suggestion of counsel that “even in the event that this court should be of the opinion that section 9 of the law is invalid because of the alleged withdrawal of jurisdiction from the common pleas court, and that section 13, providing for an appeal in the matters set forth in section 9, ought to fall with section 9, this is not a proceeding in which such a result can be accomplished,’’ because, while section 9 so far as it relates to assignments for the benefit of creditors might be held valid — 'yet section 13 could not be so held, as the only reason that induced the legislature to pass it is found in the fact that at the same time additional jurisdiction was conferred by section 9 on the court of insolvency.

It is further contended that the acl is void because it regulates the appellate jurisdiction of both the circuit courts and the courts of common pleas, but not with uniformity throughout the state.

A citizen of Hamilton county who has a case in the insolvency court under section 9 must take it on appeal to the circuit court, while a citizen of any other county, with a like case, must take it on appeal either to the common pleas court or the circuit court according as the probate or the common pleas court had original jurisdiction thereof. Thus the right to hear appeals in certain cases is taken from the common pleas court of this county and allowed to remain in every other common pleas court of the state. Such an act can not be deemed to have uniform operation throughout the state. McClain v. Williams, 75 N. W. Rep., 391; Dawson v. Eustice, 148 Ill., 346.

A. B. Benedict, for the motion.

Ernst Rehm, Thomas McDougall and A. C. Cassatt, contra.

We conclude, therefore, as follows:

1. An act of the general assembly conferring jurisdiction on the court of insolvency in certain matters and withdrawing such matters from the jurisdiction of the common pleas court,is one of a general nature and must have a uniform operation throughout the state.

2. An act conferring the right to appeal and to prosecute error, in certain cases, directly to the circuit court, and withdrawing the right in such cases to appeal and to prosecute error to the court of common pleas must also have a uniform operation.

3. The doctrine of classification does not extend to counties so as to render an act conferring jurisdiction on courts, uniform in its operation, which otherwise would be local.

4. If two sections, comprising an act, are so mutually connected with and dependent on each other as to warrant a belief that the legislature intended them as a whole, and would not have passed one without the other, and one is unconstitutional, then both must fall together.

5. The act entitled “An act to amend sections 9 and 13 of an act entitled ‘an act to establish a court of insolvency in counties containing a city of the first grade of the first class, and(for the relief of the probate court in such counties’ ’’ (passed May 21, 1894), passed April 25, 1898, is unconstitutional and void. The motion to dismiss the appeal is sustained.

The entire act being unconstitutional and void, the repealing section is also void, thereby leaving sections 9 and 13 of the original act still in force.


text:
      (Sixth Circuit — Lucas Co., O., Circuit Court
    June Term, 1899.)
    Before King, Haynes and Parker, JJ.
    CHRISTOPHER E. MILLER et al. v. SARAH GLEASON.

      Adair Law — What constitutes an habitual drunkard—

      (1) . In an action by a wife against a liquor dealer for damages for selling liquor to her husband, under the Adair law, the charge of the court in defining what constitutes a habitual drunkard, to the effect that if the person had formed the habit of drinking intoxicating liquor to excess and of becoming intoxicated, whether that habit be to become intoxicated daily and continuously, or periodically, such a person would be an habitual drunkard, is not erroneous.

      Damages — Plaintiff entitled to compensatory and punitive damages.

    (2) . In such an action, plaintiff is entitled not only to compensatory damages for the injury sustained in her means of support etc., but to punitive damages also without any proof showing such damages. ■

      Exceptions to action of court in ruling out questions in its entirety—
    (3) . Where the court rules out a number of questions and answers in a deposition, and the adverse party preserves one exception only to . such aotion of the court in its entirety, the fact that a reviewing court will on error find'that some of the questions and answers ruled out were competent, will not constitute prejudicial error as to such party and entitle him to a reversal to the judgment below.

      Motion for new trial for excessiveness of verdict — What must state—
    ,(4). A motion for new trial on the ground that the verdict is excessive will not be granted unless it states in the language ■of the statute, that the verdict appears to have been given under the influence of passion or prejudice.
    Error to the Court of Common Pleas of Lucas county.
   King, J.

(orally.)

Sarah Gleason brought suit against Christopher E.Miller and Sarah E. Miller, in the common pleas, and recovered a judgment for damages which^she alleged she had sustained by the sale of intoxicating liquors to her husband, Patrick Gleason, made after October 6, 1894, and prior to the com»“ mencement of this’action, the result of which had been to affect and impair her means of support under the statutes of this state relating to that subject. This proceeding in error is brought to reverse that judgment.

The first assigned error which I will notice is, that the court erred in ruling out five questions and answers in the deposition of Patrick Gleason taken on behalf of defendant Miller. The deposition was read in evidence,and five questions and the answers thereto were read to the jury over the objection of the plaintiff’s attorney. After an adjournment the court came in and remarked that he had made a mistake in ruling in reference to such five questions and answers in the deposition of Patrick Gleason. The court said, “I believe that the testimony is incompetent. It is the testimony referring to the threats of poisoning and murder. I think I have made a mistake in admitting this testimony •and I desire to withdraw it from the record, and I urge upon you the duty of not regarding that testimony and not allowing it to influenceyour verdict one way or the other.” To that ruling the defendant in errcr, plaintiff below, ex. cepted. Of these five questions three related to the subject of poisoning and murder, as mentioned by the court, and two related to other matters which were entirely proper and competent in the case. The plaintiff in error, however, preserved but one exception to the ruling .of the court to the five questions and answers; and therefore it is not prejudicial to him that the court ruled out moire than it ought to have ruled out. But I think it doubtful whether the court intended to rule out the five questions and answers. He says that the testimony upon that subject is ruled from the consideration of the jury. That we do not find to bé prel judicial to the plaintiff in error.

The next question is as to the charge of the court. The court gave, before argument, at the request of plaintiff’s counsel below, a request' which is complained of, The court also gáve substantially the same thing in its general charge. The request is as follows:

“If the jury shall find from the evidence in the case that during the time alleged in plaintiff’s petition that the husband of the plaintiff had formed the habit and indulged in it, of drinking to excess and becoming intoxicated, whether daily and continuously or periodically with sober intervals of a greater or less length, the person addicted to such habit is an intemperate man, an habitual drunkard.’’

This is complained of because it is said that it does not follow the rule which it has been customary to give in such cases of the definition of an habitual drunkard. I think probably that it is claimed by counsel that an habitual drunkard is one who becomes intoxicated whenever he can procure the means — whenever he is surrounded by the means of getting intoxicated. But it will be noticed that this request — and so of the charge of the court — 'as to the effect, that they must find that the plaintiff’s husband had formed the habit of drinking to excess and becoming intoxicated. Then the court says: “Whether daily and continuously or periodically with sober intervals of a greater or less length, the person addicted to such habit is an intemperate man, an habitual drunkard.’’ The gist of that request is, that he had formed the habit of drinking intoxicating liquors to excess and becoming intoxicated. Whether that habit be to become intoxicated daily and continuously, or periodically, is not important; in other words, if he had formed the habit of drinking liquor to excess and of becoming intoxicated, such a man would be an habitual drunkard whether he was drunk all the time or whether he was drunk periodically with sober intervals of greater or less extent. That is what the charge means if it means anything, in our^judgment; and it is a fair definition of an habitual drunkard. I think this is sustained by the opinion in Union Mutual Life Ins. Co. v. Reif, 36 Ohio St., 596, although it is true that the question there discussed and at issue was not the same as this one. However, the courtjUndertake^to say, and do say casually, what constitutes a man who is in the habit of being intemperate and who is in the habit of becoming intoxicated from intoxicating liquors and what constitutes an habitual drunkard; we think that is clear, And the general charge was not different in any respsct from this request, at least it did no state the rule any more favorably to the.plaintiff.

There are other portions of the charge complained of, but I have not time to go over them in^detail. Suffice to say we find no error in the charge.

It is alleged that the verdict is not sustained by the evidence. I think there was evidence^gin the record from which the jury could have found, if they believed what the witnesses said about it, that Patrick’Gleason was a man who was in the habit of being intoxicated; that he had been for several years before this suit was brought; that the defendant Miller, knew of his general habits and condition, and that he had procured liquor there — 'there was evidence in the record to sustain that; and there was evidence, undoubtedly, to the contrary, but the jury had an opportunity to see these witnesses and hear their testimony and determine which of them they would believe. Wa have no power to say that they ought to have believed one and excluded another. This was determined by the jury, and we cannot disturb this verdict upon that ground.

Considerable is said about the verdict being excessive, as showing prejudice, etc. I will make the same reference in this case that .1 have made here in another. The motion for a new trial does not set forth that the verdict was excessive as being caused by prejudice or passion,

One or two things are said by our supreme court, in a couple of cases that they refer to as bearing upon this question of damages. The plaintiff is entitled to recover for loss of her means of support, and the court say, in Mulford v. Clewell, 21 Ohio St., 191, reading from page 197 of the opinion: “Means of support relate to the future as well as to the present.’’ And again, on the same page:

“What those damages are, in any given case, the legislature have seen proper to leave in these broad terms to a jury to determine. Á wife’s means of support' — her reasonable alimony or allowance for maintenance — is a matter quite well known to the law; and there is no good reason why the legislature should not submit the question of its amount and value, as it seems to have done by these statutes, to the determination of a jury, under the instruction and supervision of the court.”

And again we find some remarks upon this subject in Bean v. Green, 33 Ohio St., 444. On pages 451 and 452, the court say:

“The statute giving this right of action (67 O. L., 102), contemplates that the injured party may recover a compensation in the form of damages, for the injury occasioned to her means of support, resulting from the unlawful acts of defendant. Also, that the transgressor be punished by an assessment of exemplary damages against him. The jury may award exemplary damages, under this statute, without any proof specially showing such damages', the policy of the statute being to provide punishment, by both criminal and civil proceedings, teat will most effectually prevent the evils arising from the unlawful sale of intoxicating liquors. As assessment of punitive damages, in favor of a wife entitled, by the proofs, to compensatory damages, is a mode provided by the law to prevent an evil.
“There can be no reasonable doubt, that where a defendant who has notice of an action against him, that plaintiff claims to have been injured in her means of support, by unlawful sales, by him, of intoxicating liquors to her husband, shows a wanton disregard of her rights, by continuing to debauch her husband, by selling him intoxicating liquors after such notice,and proof of such fact may be given to enhance the exemplary damages.”

Looking at the law as the supreme court have laid it down in those two cases on the subject of damages,and the carefulness with which they say that both the loss she may sustain and the amount of punishment which may be inflicted are left to the jury to determine, we do not think we would be warranted in saying, under the action of the court below in this case, that this judgment should be disturbed, and therefore it is affirmed.

Pilliod & Tyler, for Plaintiff in Error.

Beard & Beard, for Defendant in Error.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Smith, Swing and Griffen, JJ.
    THE STATE OF OHIO ex rel. HATTIE ARMSTRONG v. WALTER LACY, Constable.

      Holder of chattel mortgage suing for debt as for money icithout regard to his mortgage — Waiver of rights under mortgage— Homestead—
    Wber6 a vendor reduces his claim for balance of purchase money to judgment and takes the goods upon execution, there is’ a waiver by him of ownership by virtue of a chattel mortgage, and the vendee is entitled to homestead exemption out of such property.
    Mandamus.
   Relator bought a lot of furniture from A. J. Conroy & Co. for $464.92, payable in installments of $25 per month, •and as a part of the transaction executed a chattel mortgage to secure the purchase money, duly sworn to as a chattel mortgage,and duly filed as such. The sale was conditioned that the title of the property should remain in Conroy & Co. until all the installments were paid, The relator paid $208. Conroy & Co. sued her for the remaining installments unpaid, and got a judgment before a magistrate for $267.16 and costs, and levied an execution on the property sold. The relator demanded of the constable that he set off to her the property levied on as exempt under the homestead laws, which the constable refused to do. A writ of mandamus was issued to compel him to do so. The relator claimed that upon the levy of execution upon the goods so sold, Conroy & Co. elected to treat the property as the property of the relator, and that the title shifted from the vendor to the vendee, and became absolute in her, and that she was therefore entitled to her exemption in lieu of homestead,

Smith, P. J.; Swing and Giffen, JJ., concur.

We are of the opinion that the relator is entitled to a writ as prayed for requiring Lacy, as constable, to proceed under the statute to set off to her the exemptions to which she is by law entitled. He has in his possession, actual or constructive, and under his control as such constable, property .levied on by him by virtue of an execution issued on a judgment recovered by A. J. Conroy & Co. against the relator, such levy having been made on such goods at the direction of said plaintiff in said judgment. This, we think, was a waiver of any claim by said Conroy & Co. to the ownership of said property .by virtue of a chattel mortgage from Mrs. Armstrong, the relator, even if such claim were asserted in this action, as we understand it is not.

We find from the evidence in this case that Mrs. Armstrong is a resident of this state and city, and was so at the time of the levy of this execution, and ever since has been; that she is not the owner of a homestead, or of any real estate, and that she is a widow and the head of a family, and, therefore, under the statute that in lieu of a homestead she is entitled to hold exempt from execution on this judgment, personal property to be selected by her, not exceeding $500 in value, in addition to the amount of other chattel property she may have which the law exempts. That this was the case when the execution was levied and the demand made upon the officer to set off to her her property as exempt, and that she had not, when said levy and demand were made, personal poperty of the value of $500. That said relator did make a legal and proper demand for such exemption, asking that the whole of said property be set off to her on the ground that the value of it and of all of her property was less than $500, which demand was refused.

L. H. Pummill, for relator.

Thomas L. Michie and J. C. Clore, contra.

The defendant will be required, therefore, to proceed according to law to ascertain the value of relator’s said property, and set off to her so much thereof as is exempt from execution as is selected by her,


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before King, Haynes and Parker, JJ. [Of the Sixth Circuit, sitting in the First Circuit. ]
    M. C. ANDERSON v. JAMES W. RAWLINGS.

      Civil Rights Act — Principals’ lialitity for agent’s refusal to admit colored man to theater—

    (1.) In a suit for damages under the Civil Rights Act for refusal to sell tickets to a theatre to a colored man, the petition must aver that the ticket seller in so refusing was acting within the scope of his authority in so doing.

      What petition must state—
    <(2,) Whether allegations and proof that the ticket seller was given discretion in such a matter would bind his principal? Quere.

    Error to the Court of Common Pleas of Hamilton county.
    The defendant in error sued the Fountain Square Theater Company, owners, and'M. O. Anderson, lessee, for $500 damages, claimed to have been forfeited to him under the civil rights act by reason of the refusal of the ticket seller at the Fountain Square Theater to sell to him tickets to the parquet of said theater, the reason given for said refusal being that all the seats in that part of the theater were sold, when, as a matter of fact, the seats were not all sold, and said refusal was because of his (Rawlings) race and color. The Fountain Square Theater Company were dismissed from the suit at the trial below, and a jury awarded Rawlings $200 damages, for which he was given judgment.

      Shay & Cogan, for M. C. Anderson.

      George H. Jackson, for Rawlings.
    Parker, J; King, P. J., and Haynes, J., concur.
   The judgment in this case is reversed on the ground that the petition fails to state a cause of action against the plaintiff in error in this, that it contains no averment that plaintiff in error did the act complained of, or that the ticket agent was authorized by plaintiff in error to do such act, or that he was acting within the scope of his authority therein —i. e,, in making the unlawful discrimination complained, of.

Whether allegation and proof that the ticket agent was. given authority to exercise his own discretion in selling or refusing to sell tickets to persons applying therefor would be sufficient to charge the principal with liability for such act as that complained of, we do not decide.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1899.)
    Before Smith, Swing and Giffen. JJ.
    LIZZIE COLTER, Administratrix, v. THE CINCINNATI STREET RAILWAY COMPANY.

      Scintilla rule applied—
    (1.) ' Where the evidence tends to show that the motorman of a car running at the rate of four miles an hour that could be stopped within twelve or fifteen feet, sees a child three and one-half years of age at a point of danger fifty feet in front of him, and permits the car to run over and kill the child, it is error to direct a verdict for the defendant street railway company.

      Same— Rule should be retained—
    (2.) This court firmly believes in the well settled rule that where there is evidence tending to establish plaintiff’s case, it is for the jury to decide in the first instance; judges have power enough without encroaching upon that of the jury.

      Evidence — Measurements admissible—
    (3.) It is competant to introduce measurements made after the occurrence, if the witness is sure of the location,
    Krror to the Court of Common Pleas of Hamilton county.

      Swing, J.; Smith, P. J., and Giffen, J., concur.
   This was an action in the court of common pleas for’ damages for causing the death of George Goiter, a child three and one-half years old.

The petition alleged that the street railway company wrongfully caused the death of the child; that the company negligently operated its car in this, to-wit, that the car was. run at a high rate of speed; that the company did not provide the car with proper guard rails, and that the company was negligent in not seeing the child and stopping the car before running over the child.

On the trial of the case, at the conclusion of the plaintiff’s evidence, on motion of the defendant company, the court instructed the jury to return a verdict for the defendant.

Tn doing this it is claimed in this court that there was error to plaintiff's prejudice. The evidence tended to 3how this state of facts: On the 26th day of March, 1895, Mrs. Goiter, the mother of George Colter, had her three children with her doing some shopping in a store at the southeast corner of Elm and Elder streets, in the city of Cincinnati. The other children, besides George, were a daughter, fourteen, named Katie, and a baby named Freddie. They all came out of the store together, the mother carrying some bundles and Katie carrying the baby, while George was walking. The mother and Katie walked west on Elder street to Elm,and turned south on Elm, until they had gone ten or twelve steps south of the corner on Elm street, a distance say of thirty-one feet south of the corner; at this point the mother, missing George, turned and discovered him within two feet of the east car track, about two feet north of the south crossing of Elder and Elm. At the time she discovered the child in this position the car which afterwards run over him and killed him was right opposite Mrs. Goiter — that is, the front part of the car was. The distance of the car at this time and point was about fifty feet from where the car finally struck the child, There was evidence that tended to show that the motorman ■saw the child just as he left the curb stone to go into the middle of the street, and that the child was toddling along at the usual speed of a child of that age. There was also evidence tending to prove that the car was going at a speed not to exceed four miles an hour, and that it could have been stopped, at the rate it was then going, in a distance of twelve to fifteen feet.

It seems to us that in directing the jury to return a verdict for the defendant the court invaded the province of the jury. No rule of law is better settled in Ohio than that where there is any evidence which tends to establish the plaintiff’s case, it is for the jury to decide in the first instance. We firmly believe in the wisdom of such a rule of law. The judge has power enough without encroaching upon the powers of the jury, and we are not prepared to say that the judgment of judges on matters of fact is likely ■to be more correct than that of juries. At any rate, the law is too well established in Ohio to admit of any question, and speaking for ourselves we express the hope that it will never be changed.

In this case the evidence before the jury tended to show that the motorman saw this child at a point of danger when the car was more than thirty feet away; and when, according to his own testimony, he could have stopped the car within twelve to fifteen feet. If the motorman saw the child at that distance, and the child was in a dangerous situation as to his moving car, it certainly was his duty to have stopped his car ana avoided the accident. There was other and different evidence in the cause, some of which tended to show that the motorman did not see the child until the car ■got within six or seven feet of the child, but which was to ■be believed was foi the jury to pass on. It seems to us quite clear from the evidence in the record that we would not reverse a judgment for the plaintiff on the ground that it was against the evidence.

W. M. Eames, and Robertson & Buchwalter, for Plaintiff in Error.

Foraker, Outcalt & Prior, contra.

We think the court should have received the evidence of Meyers, on page 55 of the record. It was competent to show the actual measurements although made after the occurrence, if it was shown that the witness Hespus was standing in the same place at both times, Of course his vision must be the same, and its correctness could hardly be doubted.

For these reasons the judgment will be reversed and the-cause remanded for further proceedings.


text:
    (First Circuit — Hamilton Co., O., Circuit Court —
    Jan. Term, 1899.)
    Before Smith, Swing and Giffen, JJ.
    ELIZABETH SCHROEDER v. JOHN G. OVERMAN Clerk, et al.

      Resolution to improve — Omission of one item of improvement in ordinance — Effect—
    (1.) Where the resolution to improve correctly and fully describes the improvement found necessary, but the ordinance omits to state one item of such proposed improvement, which however was necessary and actually made, which appeared on the specifications on file in the office of the city engineer, and which resolution is directly referred to in the ordinance, such omission in the ordinance will not invalidate the assessment.

      Assessment on tract of its entirety — Parts of tract not considered by themselves as to value—
    (2.) Where the assessment for a street improvement is on the front feet of an entire tract of land which abuts thereon, the tract has to be considered as a whole in determining whether the assessment amounts to more than 25 per cent, of the value of the property after the improvement was made, and a part of such tract of land as to which the assessment would amount to more than 25 per cent, of ics value, can not be considered by itself without regard to the rest and the assessment as to it reduced to 25 per cent, of its value

      Decision in Baher v. Norwood — Bearing on assessments by front foot—

    (3.) The question of assessments by the front foot was not directly involved in the case of Baker v. Norwood, the question there being whether when the property of one person is condemned by a municipal corporation, the condemnation money, with all the costs and expenses of the condemnation, can legally be assessed upon the owner of the property from whom it was taken. No other question was before that court, and in view of the repeated decisions of our own courts as to the legality of assessments by the front foot, this court is Jnot disposed to hold them invalid.
    Appeal from the Court of Common Pleas of Hamilton •county.
   Smith, J.

This action was brought by Mrs. Schroeder, the plaintiff, to enjoin the collection of an assessment levied by the 'Village of St. Bernard on certain real estate owned by her, -situate in said village, for the improvement of Church ■street, one of the streets of said village. The principal grounds on which the relief is sought are these: First, that ■■the resolution declaring it necessary to improve Church ¡street, and the ordinance providing for its improvement were essentially different in this: That the resolution declaring it necessary to improve, passed May 11, 1893, described the improvement to be made thus: “by grading the -same, macadamizing the road bed, and constructing the ■necessary culverts or drains, in accordance with the plans, ¡profiles and specifications on-file in the office of the village •clerk’’, while the ordinance requiring the improvement to 'be made describes it thus: “by grading the same, macadamizing the road bed in accordance with the resolution of ■council adopted May ll, 1893;’’ that is, the ordinance to ■improve leaves out the words, “and constructing the neces•sary culverts or drains, in accordance with the plans, profiles and specifications on file in the office of the city clerk. ”

The evidence shows that the plans and specifications referred to in the resolution were on file in the office of the city clerk, and provided for the culverts and drains, and that they were necessary for the improvement, and were made. And that the ordinance to improve called specifically ■for the improvement declared necessary by the resolution of May 11, 1893.

We think the claim of the plaintiff thatjthese facts make the assessment or any part of it invalid is not well founded.

The cases cited by counsel for defendants we think sustain this view. 34 Ohio St., 101; 5 Ohio St., 225, and 42 Ohio St., 585.

The next claim of the plaintiff is, that as to one of the tracts of land abutting on the improvement, the part assessed for the same is not of sufficient value to' stand such assessment — ’that is, the amount so assessed is more than 25 per cent, of the value thereof after the improvement was ■made.

This controversy arises as to but one of the tracts of land of the plaintiff. It abuts upon the street improved for about eight hundred and fifty-seven feet, and the assessment was made only on the one hundred and fifty feet north of ■the street, the land being in bulk, and the usual depth of lots in the neighborhood being one hundred and fifty feet/

There can be no question on the evidence, but that all of the tract so assessed is amply able to bear the assessment, ■except about two hundred and fifty feet thereof at the west side of the tract. This two hundred and fifty feet, owing to the surface being considerably below the grade of the street, ■is not so valuable, and if that part can be set off and considered as a separate tract, we would feel constrained to hold that the assessment as to this part was over 25 per cent, of its value. But we see no reason for making any such subdivision, and hold that for this purpose the tract must be considered as one tract. And if this be so, we think it clear from the evidence, that the amount of the assessment does not exceed or equal 25 per cent, of the value of the assessed tract, after the improvement was made.

Theodore Horstman, for Plaintiff.

Samuel B. Hammel, for Defendant.

It is further claimed that this case comes within the principles of the decision of the supreme court of the United States in the case of Baker v. Norwood, recently decided. That the assessment was an arbitrary one, by the front foot, and not on the principle of benefits. The assessment by the foot front has been frequently and expressly upheld by our own supreme court. We think that the question of assessments by the front foot was not directly involved in the Baker case, the question there being whether when the property of one person is condemned by a municipal corporation, the condemnation money, with all]]’ the costs and expenses of the condemnation, can legally be[assessed upon the owner of the property from whom it was taken, and the holding of the court in that case seems to us eminently just and correct. As we understand, no other question was before that court, and in view of the repeated decisions of our own courts as to the legality of assessments by the front foot, we are not disposed to hold [them invalid.

The result in this case is, that there should ¡[be a [decree for the defendants.


author: Sullivan, J.

text:
    (Second Circuit — Darke Co., O., Circuit Court
    April Term, 1899.)
    Before Summers, Wilson and Sullivan, JJ.
    SIMON AUERBACH & CO. v. O. L. SWADNER.

      Attachment Law — Amendment of 1898 — Non-residence ground for attachment—
    Seo. 5521 R. S.,as amended April 16, 1898, (0/ L. 93, p. 318) construed to contain within its provisions as a ground for an attachment namely when the defendant, or one of several defendants, is a foreign corporation or a non-resident of this state.
    Error to the Court of Common Pleas of Darke county.
   Sullivan, J.

This action was brought by defendant in error against plaintiff in error September 26, 1898, in the common pleas, on an account for goods sold and delivered tó plaintiff in error.

Plaintiff in error and each member thereof being a nonresident of the state, the defendant in error filed his affidavit with the clerk setting forth the fact of such non-residence, upon which an order of attachment was issued and levied upon goods and chattels of plaintiff found in the county.

Plaintiff in error filed its motion to dissolve the attachment, claiming that non-residence alone was not a ground upon which the order could issue, claiming that section 5521,as amended April 26, 1898, contained no such ground.

The common pleas overruled this motion, sustained the attachment, and entered up judgment against plaintiff in error for costs, and it is to reverse that judgment that plaintiff prosecutes error to this court.

Prior to the amendment of section 5521,of April 26,1898, that section provided “that in a civil action for the recovery of money, plaintiff at or after the commencement thereof, might have an attachment against the property of the defendant where the defendant or one of several defendants is a foreign corporation, or a non-resident of this state;” whilst the section as amended reads “that the plaintiff in a suit for the recovery of money, may, at or after the commencement thereof, have an attachment when the defendant, or one of the several defendants is a foreign corporation, except as provided by an act entitled an act to further supplement section 148, of the Revised Statutes, passed May 6, 1894, (91 O, L., 272), and as except provided by “an act entitled an act to amend section 1, of an act”, etc., passed May 19, 1894, (91 O. L., 355.) [S. S. 48 C., 148d]. The words ‘‘or a non-resident of this state”, immediately following the words ‘‘foreign corporation” appearing in the section before amended do not appear in the section as amended. It is therefore contended by counsel for plaintiff in error, that since such amendment, and before the bringing of this suit in the court below, the non-residence of a defendant from this state was not a ground for an attachment, and that it was intentionally emitted by the legislature, which omission constituted the amendment of the section, in part. The only reason urged by counsel in support of such claim, was the omission, and nothing more. They did not claim that the reasons which suggested the wisdom and fairness of such ground for an attachment, did not still exist, and were not as potent as when this ground”was^first incorporated into the section, nor did they contend for any discrimination between a defendant as a foreigNcorporation, and a natural person as a non-resident defendant.

The^concluding paragraph of section 6521, as amended, providing that attachments shall issue only for certain claims, upon the'ground that the defendant is a foreign corporation"or"a”non-resident of this state, is the same as that of the section before it was amended. And also section 5523, providing that no undertaking shall be required when an attachment is issued upon the ground that the defendant is a foreign corporation or a non-resident of the state, is unchanged — containing still the same provision.

It would certainly seem, if the legislature nc longer intended to retain as a ground for-an attachment the non-residence of the defendant or one of several defendants from this state, it would have readily discerned that there would not be any necessity for retaining the provisions found still in the foregoing sections, as above recited. We are of the opinion, that it was the intention of the legislature to amend 5521, to include simply the exceptions with reference to the foreign corporations as stated in the amendment, and that the words “or a non-resident of this state” were omitted through inadvertance, and were intended to be included in the paragraph of that section changed by the amendment.

No reason is made to appear, why the legislature should discriminate between a foreign corporation, except, (in the several exceptions stated now in section 5521) and a non-resident defendant. The reasons for such a ground for an attachment existed as much at the date of the amendment, and with as much force, as when this ground was first incorporated into the statute. We are therefore of the opinion it. was the intention of the legislature to include such ground in the amended statute.

A thing within the intention of the makers of a statute is as much within the statute as it were within the letter.

“The intention of the law maker constitutes the law. A thing may be within the letter of the statute and net within its meaning; and within its meaning though not within its terms. ”

Slater v. Cave, 3 Ohio St., 80.

And “that which is plainly implied in the language of ■the statute is as much a part of it as that which is expressed. ”

Long & Kyle, for Plaintiff in Error.

Anderson & Bowman, contra.

Doyle v. Doyle, Jr., 50 Ohio St., 330.

"The words of a remedial statute are to be construed largely and beneficially so as to suppress the mischief and advance the remedy. It is by no means unusual in construing remedial statutes to extend the enacting words beyond their natural import and effect, in order to include cases within the same mischiefs. ”

The judgment of the court below in overruling the motion to dissolve the attachment was correct,and the judgment is . affirmed.