text:
    CONTEMPT PROCEEDINGS AGAINST PUBLIC OFFICERS.
    Circuit Court for Coshocton County.
    State of Ohio, on Relation of John R. Maple, v. Gail S. Hamilton, Mayor of Coshocton.

    Decided, July, 1912.

      Suspended Official Restored hy Order of Court — Attempt to Recover Salary During Period of Suspension — By Contempt Proceedings Against Municipal Treasurer and Other Officials.

    1. The relator was removed from his office of chief of police hy the mayor of the city.' In a mandamus proceeding brought for that purpose hy the relator, the mayor was ordered to restore him to his office of chief of police in the city with all the privileges, prerogatives and emoluments thereunto belonging, which order was finally affirmed by the Supreme Court. The mayor restored the relator to his office of chief of police; Subsequently the relator, not having been paid his salary and fees during the period covered by his suspension, filed a motion in the circuit court asking for a rule against the mayor, director of public safety, city auditor, and treasurer of such city, requiring them and each of them to show cause why they should not he attached for contempt for not paying the relator his salary and fees during such period of suspension. Held: That the director of public safety, city auditor and city treasurer, not having been parties to the original action and proceeding in which the order was made, can not he attached for contempt in disobeying an order made therein, and that the mayor, having restored the relator to his office, had performed all the duty devolving upon him.
    2. In a subsequent hearing, it appearing that on the application of the relator, three members of the bar were named by the court to prosecute such contempt proceeding against the above named city • officials, and the question was presented as to whether or not the three attorneys named should he allowed and recover as costs in the case fees either against the defendant or the city. Held: That the case is not one in which attorney fees as costs can he allowed.

      Bert F. Voorhees, for relator.

      John J. Adams, City Solicitor, contra.
    Norris, J. (sitting in place of Voorhees, J.); Shields, J., and Powell, J., concur.

      Affirmed without opinion under the title of State, ex rel, v. Cassingham, Mayor (’June 24, 1913); judgment as to costs set aside .and vacated, and costs in the Supreme arid Circuit Courts taxed against the State (December 16, 1913), 88 Ohio State.

   On the 31st day of July, 1909, the mayor of Coshocton issued an order removing John R. Maple, the relator, from his office of chief of police of the city of Coshocton, and appointed another in his place.

The relator, on the 7th day of August, 1909, filed a petition in the court of common pleas, asking for an order that he be restored to said office of chief of police with all the privileges, prerogatives and emoluments thereunto belonging. The court of common pleas ordered the relator restored to said office, and on appeal the same judgment was rendered in the circuit court, and the judgment of the circuit was affirmed by the Supreme Court, and the case remanded to the circuit court for execution.

After the decision5 of the Supreme Court, to-wit, on January 1st, 1912, the mayor of Coshocton restored the relator to his office and he has since that time been holding the office and acting as chief of police. Since January 1st the relator has been tendered his salary as such chief of police, but has not been paid or tendered his salary as such chief of; police during the period from August 1st, 1909, tp January 1st, 1912.

On May 21st, 1912, the relator filed a motion in this court asking for an order against George W. Cassingham, mayor, R. F. Timmons, director of public safety, Evan O. Evans, city auditor, and Harold Hershman, treasurer of the city of Coshocton, requiring them and each of them, to show cause why they should not be attached for contempt for disobeying the peremptory writ of mandamus issued in this case by this court in the following particulars as specified;

“1st. For not complying with the order of the court contained in the alias peremptory writ of mandamus heretofore issued in this ease May 21st, 1912.
“2d. For not restoring to the said John R. Maple as chief of police of the city of Coshocton, Ohio, all the privileges, prerogatives and emoluments incident thereunto belonging, and all property and rights of which he was deprived and disposed of by reason of the order and wrongful acts aforesaid, as they were commanded to do, by the alias peremptory writ of mandamus issued herein May 21st, 1932.
“Said emoluments and prerogatives incident to the office of the chief of police of the city of Coshocton, Ohio, consists of his salary of $840 per year payable semi-monthly, from August 1st, 1909, to May 15th, 1932, amounting to $2,345, and fees of the chief of police of the city of Coshocton, Ohio, in state cases prosecuted and convictions had before the mayor of the city of Coshocton, Ohio, from August 1st, 1909, to May 23d, 1912, the amount of which fees is unknown to relator, not having access to the records of the said mayor of the city of Coshocton, Ohio, but the amount is claimed and alleged as a fact to be $750.”

(

It is further stated that the relator has been tendered a warrant for his salary as chief of police from the 1st day of January, 1912, to date, which was refused by.the relator. An affidavit of the relator was filed in support of the motion stating, among other things, that he gave each of the defendants on the 21st day of May, 1912, written notice of the issuance of the writ of mandamus on May 21st, 1912.

Cassingham, the mayor, answered that he has fully restored the relator to his office and he has since been discharging the duties thereof, and he further answers with reference to the first claim by the relator, which is not necessary now to consider.

The director of public safety answers, stating that he was never a party to any action in the circuit court or any other court, in which a writ of mandamus was issued directing him to do anything with reference to restoring John R. Maple to his office or the emoluments thereof, and further that it is no part of his duty to restore the chief of police, and further answered that another, during the interim, was acting as chief of police and was paid the salary, etc.

The city auditor makes substantially the same .answer, so far as it is necessary to consider the same.

The city treasurer moves to dismiss the proceedings because the same do not specify any facts showing any disobedience or resistance of an order of the court, and further does not show that he has refused to pay any warrant issued in behalf of the relator, and that he has no right to pay the salary of the chief of police except on warrant.

Considerable testimony was offered on both sides in the case, much of which it is not necessary now to consider. The director of public safety, the city auditor and city treasurer were not parties to the proceeding and were never made parties thereto except by the filing of the motion and affidavit charging them with contempt of court in not obeying the mandate and decree of the court.

The relator’s claim is that they did not, each in his particular office, perform the necessary acts to pay the relator his salary as chief of police while this action was pending in the courts, and while another was acting in his stead, and also pay him certain fees which he claims he was entitled to.

A legal question is raised by the answers which we do not consider it necessary for us now to pass upon, as it is not properly before us, and that is whether or not the relator is entitled to a salary during the time he was unlawfully kept from his office and another was acting in his stead and was paid the salary. We do not think this question was settled by any judgment rendered in this case up to this time.

This court is asked to punish certain officers of the city for contempt in disobeying its order, but the order was only directed to the mayor, ordering him to restore the relator to his office with the emoluments, etc. The mayor has done all that he can do in carrying out that order. He has restored the relator to his office. He has nothing to do with paying him his salary or his fees. The proceeding was brought only against the mayor. No other officer was named. No other officer was served with any order in this ease. The only notice of any kind that the other defendants had in this case is a notice of the order which relator claims he served on the 21st of May, 1912.

What was the order?' To restore the relator to his office with emoluments, prerogatives and perquisites. The director, auditor and treasurer, had nothing to do with restoring him to his office. What were the emoluments, etc., to which relator is entitled? Relator does not even himself know to what fee he makes claim, and it would seem from the authorities cited that the law is not entirely clear under the facts in this ease as to what salary the relator is entitled. The city solicitor contends, and doubtless advised the other officers, that relator was not entitled to the salary during the time he was not performing the duties of his office.

Were these officers of the city to decide this question at their own peril, and if they decided against the relator and were wrong, to be punished therefor, as being in contempt of the court ?

We think first that the order was too indefinite, as held:

“In order that a commitment may issue under any circumstances, as already stated, the precise thing to be done by the party proceeded against, must be stated in the judgment or order.” Cross v. Butler, 10 N. Y. Sup., 444 (57 Hun., 110) ; Pritett v. Pressley, 62 Ind., 491.

Again, the order was never served upon the director, auditor and treasurer. Tt is claimed thejr were given notice of such order.

“Before a party can be brought into contempt for not complying with an order of court, such order must be served on him.” Hennessy v. Nicol, 105 Cal., 138 (38 Pac., 649); Perrine v. Broadway Bank, 53 N. J. E., 211 (33 A. P. L., 404) ; Tebo v. Baker, 77 N. Y., 33; Ex parte Willand, 73 E. C. L., 544.

But can these officers be punished for not obeying an order issued in a case to which they were not parties 1 Each, of these parties had the right to litigate the question as to relator’s salary and fees. This is not an action brought against the city which might bind the officers of such municipal corporation. It was merely an action against the mayor of the city and the order was directed to him. None of the other parties sought to be punished have had any day in court except to answer this charge made against them in this court.

We think the ease of the Second National Bank of Sandusky v. Becker, 62 O. S., 289, decisive of this question, if authority we need. Quoting from the concluding portion of the opinion in that case:

“As has already been noted, they were not parties to the original action against Becker, nor before the court, either by process or appearance, when the order was entered in that action requiring them to redeliver the attached property to the sheriff or p,ay the judgment then rendered in favor of the bank against Becker. The court was therefor without jurisdiction to make the order that was then entered against them. That order was the foundation of the subsequent proceeding for contempt. In that proceeding they were only notified to show cause why they had not redelivered the property in compliance with the previous order. No suit was brought against them on the undertaking, nor opportunity given them to plead or make defense to any claim of liability thereon, or be heard according to the usual course of legal proceedings. It can scarcely be claimed that this was due process of law.”

What is the foundation of this proceeding for contempt? It is an order issued to the mayor only. The other parties have never had an opportunity to be heard as to any defense they might have against the claim made by relator. We do not think that to now hold them guilty of contempt would be due process of law. The mayor, having complied with the order so far as he is able, is not guilty of contempt. The motion of the relator must therefore be denied and the rule discharged.

The' case was further heard on the application of relator for an allowance of attorneys’ fees as costs in the case. Upon the application of. relator three members of the bar were named by the court to prosecute the proceedings for contempt.

The question arises as to whether- or not the three attorneys appointed should recover, as costs in the ease, attorneys fees either against the defendants or the city of Coshocton. The city of Coshocton -was never a party to any of the proceedings. It is claimed that inasmuch as this is a case in which the authority and dignity of the court itself was involved, that attorneys fees may be collected of the city notwithstanding the judgment in this case.

We think some confusion has arisen with reference to contempt proceedings. There are two classes of what are denominated acts of contempt. They are defined in the Cyclopedia of Law and Procedure, Vol. 9, page 5, as follows:

“A criminal contempt is conduct that is directed against the dignity and authority of the court.”

This is the contempt provided for in Section 12136 of the code and was the contempt charge in the case of Myers v. State, 46 Ohio St., 473, cited by counsel. In that ease the court especially appointed counsel to prosecute the case to protect its own dignity and authority in the .administration of justice.

“Civil contempt exists in failing to do something ordered to he done by the court in a civil action for the benefit of the opposing party therein.”

That is provided for in Section 12137 of the code, where it says: “Certain acts may be punished as for the contempt.”

That is the statute invoked in State v. Crites, 48 Ohio St., 460. The case at bar comes under that statute and is of that class of cases. The complaint is that the defendants failed to do something for the benefit of the relator, i. e., failed to pay any salary and fee. Again, in 9 Cyc., 35:

“Proceedings for contempt to enforce a civil remedy and to protect the rights of parties litigant should be instituted by the aggrieved parties, or those who succeed to their rights, or some one who has a pecuniary interest in the right to be prosecuted. If, however, the proceeding is to vindicate the authority of the court and is criminal in its nature, the state is the real prosecutor. ’ ’

The learned editor cites numerous authorities in support of the above quoted text. Among others, Lester v. People, 150 Ill., 408; Secor v. Singleton, 35 Fed., 376; Latimer v. Barmore, 81 Mich., 592.

In People v. Compton, 1 Duer., 512, it is stated that a solid and obvious distinction exists between contempt cases strictly and those acts denominated contempts, which are punished as such only for the purpose of enforcing a civil remedy. To the same effect is Secor v. Singleton:

“It would seem to follow that an injunction obtained to protect merely a. private right is so far within the control of the party obtaining it, and is so far a matter of individual concern, that only those persons who have a present interest in the right to be protected can be heard to complain of its violation.”

We can find no authority authorizing the recovery of attorneys fees in this kind of a case. The policy of this state has been generally against the recovery of attorneys fees as a part of the judgment or costs. In Cole v. R. R. Co., 10 Ohio St., 372, pages 409-410, the court says:

“However desirable and just it may appear in particular cases to charge upon the defendant or his property, fees of counsel representing the plaintiff, such is not the policy of this state. Even the small docket fees which were allowed were abolished by the Legislature. We know of no rule or principle which will entitle us to deviate from the policy in this case.” See Cole v. Rosser, 53 Ohio St., 12; 50 Ohio St., 591.

What is “right and equitable” in a mandamus ease? In Section 12298 it is provided that a mandamus case where a judgment for defendant, all costs shall be allowed against the relator as above found. This is a proceeding in the original ease which was a mandamus case: The defendants were required to show cause in that ease why they should not be punished as for contempt. The court has found that they were not guilty and has ordered them discharged. It seems to us that the conclusion is irresistible that the relator should pay the costs, and it is so ordered.

The late case of Brundige v. Village of Ashley, 62 Ohio St., 526, is a much stronger ease for the allowance of attorneys fees than this, yet such allowance was denied by the Supreme Court. The only cases in which attorneys fees can be asked-as costs in this state are in partition cases as provided by statute and in certain trust cases where all parties have a common interest in the trust fund. These eases are well stated in the case of Hopple v. Hopple, 4 N.P.(N.S.), 255, of which the case of Cole v. Tucker, 35 Ohio St., 581, and Mason v. Alexander, 44 Ohio St., 337, are examples. How can the costs, including attorneys fees, be charged against the city in this case anyway? It never was a party to either of the proceedings.

The statute on the subject found in the following sections of the eode: 11624, costs allowed to plaintiff when he recovers the money, judgment or specific real or personal property; 11626, in certain cases costs are .allowed to the defendant; 11628 provides that in other cases costs may be allowed in such manner as “right .and equitable.”


source: Caselaw Access Project

license: Public Domain

text:
    EFFECT OF TAKING A SEVERAL JUDGMENT BY DEFAULT. .
    Circuit Court of Cuyahoga County.
    A. T. Osborn and F. L. Felch v. The Amherst Bank Company.
    Decided, December 4, 1911.

      Promissory Note — Joint and Several Endorsers — Joint Maher — Several Judgment.

    A several judgment may be had against one who is a joint and several -endorser hut only a joint maker of a promissory note, leaving the action to proceed against the other makers of the note.

      George A. Groot, for plaintiff in error.

      Myers & Green, contra.
    Marvin, J.; Winch, J., and Henry, J., eoncur.
    Error of the court of common pleas.
   A petition w,as filed by the Amherst Bank Company against S. W. Parsons and W. S. Snyder, doing business as Parsons, Snyder & Company, F. Carpenter, A. T. Osborn and F. L. Felch. The cause was upon a promissory note, which reads:

“$2000.00. Cleveland, Ohio, Jan. 27, 1908.
“Three months after date, the undersigned promise to pay to the order of Parsons, Snyder & Company of Cleveland, Ohio, the sum of Two Thousand no-100 Dollars at the office of said firm with interest at the rate of 6%.
“The undersigned have deposited with said Parsons, Snyder & Company, as collateral security for the payment of this obligation the following property, viz., twenty-five thousand shares of the capital stock of the Cross Lake Syndicate; and hereby agree that upon default in the payment of this note said Parsons, Snyder & Company shall have full power and authority to sell, assign and deliver the whole of said securities or any part thereof, without either advertisement or notice, the same being expressly waived.
(Signed.) “S. W. Parsons.
“F. Carpenter.
“A. T. Osborn.
“F. L. Felch.”
“Endorsements. •
“Interest paid to April 27, 1908.
“Pay to the Amherst Bank Company.
“Parsons, Snyder & Company.”

The allegation is further made in the petition that payment of said note was duly demanded of said S. W. Parsons, F. Carpenter, A. T. Osborn and F. L. Felch at maturity, but the same was not paid, of all of which the said S. W. Parsons and W. S. Snyder, doing business as Parsons, Snyder & Company, had due notice.

The transcript shows that summons in the action was served upon F. L. Felch, A. T. Osborn, W. S. Snyder and S. W. Parsons; that no service was made upon the defendant F. Carpenter, he not being found in the county by the sheriff.

This suit was begun on the 27th of March, 1909. After service upon the parties already named as having been served with summons, and at a time thereafter beyond the time for filing answers by the defendants, to-wit, on the 26th day of April, 1909, the entry is:

“To Court: The plaintiff comes, but the defendant S. W. Parsons is in default of answer or demurrer, although duly served with process, and the allegations of the petition are thereby confessed by him to be true; on consideration thereof the court finds that there is.due to the plaintiff from the defendant, S. W. Parsons, as damages, the sum of two thousand one hundred and twelve dollars ($2,112). It is therefore considered that said plaintiff recover of said defendant, S. W. Parsons, its said damages and also its costs of this suit.”

Answers were filed by the other defendants, and thereafter the case was tried as against the other defendants who had been served with process, and at the conclusion of the evidence, the court directed the jury to find for the plaintiff, and assess its damages by reason of the premises at $2,351.70, against the ck fendants A. T. Osborn and F. L. Felch, to which direction of the court the said A. T. Osborn and F. L. Felch except.

It is to reverse this judgment of the court of common pleas that this proceeding is brought, the contention being that the plaintiff having taken judgment against Parsons on default, the ease as against the other defendants could not be maintained; and attention is called tg Section 11584 of the General Code, which reads:

“In an action against several defendants, the court may render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment is proper.”

It is said that this note, reading as it does, was a joint note, and that therefore-a several judgment could not have been rendered against one of them without relieving all; that the plaintiff having elected to take the several judgments against Parsons was thereby estopped from proceeding with the ease against the other defendants.

A discussion was had at the hearing of this case as to whether the note sued upon was a joint note or a several note as against each of the makers. The language of the note, it will be observed, is peculiar. It is neither “We promise to pay,” nor “We and each of us promise to pay,” nor “We or either of us promise to pay”; but only, “The undersigned promise to pay.”

We do not deem it necessary, in determining this case, to decide the question of whether this note is one such as that .a several judgment could have been rendered against .any one of these parties as makers. It was shown that the defendants S.- W. Parsons and W. S. Snyder were partners at the time this note was given, under the partnership name of Parsons, Snyder & Company; so that this indorsement by Parsons, Snyder & Company was an indorsement both by Parsons and by Snyder.

Section 8173 of the General Code provides:

“As respects one another, indorsers are liable prima facie in the order in which they indorse;'but evidence is admissible to show that as between or among themselves they have agreed otherwise.. Joint payees or joint indorsers who indorse are deemed to indorse jointly and severally.” ,

This being so, the case as against Parsons as indorser certainly authorized a several judgment against him, and it is unnecessary to determine whether as maker a several judgment could have been rendered against him. Since á several judgment could have been rendered against him as an indorser, the rendering of such several judgment against him did not take away from the plaintiff the right to proceed against the other defendants as though this several judgment had not been taken.

We reach the conclusion, therefore, that the judgment of the court below should be affirmed, which is accordingly done.


text:
    PROTECTION TO CITY IN PAYING ALIMONY TO WIFE OF A POLICEMAN.
    Circuit Court of Cuyahoga County.
    Frederick J. Lambert v. The City of Cleveland.
    Decided, December 4, 1911.

      Alimony — Divorce—Erroneous Order Defusing to Modify Alimony' After Divorce — Protection to Party _ Owing Husband Who is Ordered to pay Wife. ,,
    A wife brought an action in Cuyahoga county against her husband, who was a police pensioner of the city of Cleveland, for alimony and was allowed alimony in the sum of $25 per month which was ordered paid to her by the city, which was a party to the case, out of the husband’s pension. Subsequently the husband brought an action for divorce in another county against his wife and was awarded it on her aggression. Thereafter he filed a motion in the Cuyahoga county court for modification of its alimony order, setting up the divorce decree as a reason why he should pay no more alimony; this motion was overruled and with knowledge of the divorce, the city continued to pay the wife as previously ordered. Thereafter the Cuyahoga county court granted another motion to modify the alimony order and stopped payments of alimony to the wife. In an action by the husband against the city to recover the money paid by it to the wife after it knew of his divorce from her; Held: The order in the alimony case was full protection to it notwithstanding the order refusing to modify the alimony awarded after • divorce, was erroneous.

      Wing, Myler & Turney, for plaintiff in error.

      Newton D. Baker, contra.
    Winch, J.; Marvin, J., and Henry, J., concur.
   Lambert sued the city of Cleveland to recover half of his police pension which the city, under an order of court, had paid to his former wife instead of to him. He failed in his action, and now seeks a review of the judgment against him.

It seems that in 1897, Eliza Lambert, who was then the wife of plaintiff, brought an action for alimony against him in the Court of Common Pleas of Cuyahoga County, making the city a party defendant thereto, and representing that her husband was entitled to a payment of $50 per month from the police pension fund of the city. Such proceedings were had in the case that the wife was allowed alimony in the sum of $25 per month, and an order was made against the defendant city directing it to pay said amount monthly tó the wife. With this order it complied.

Subsequently the husband moved to Geauga county and there sued his wife for divorce. Such proceedings were there had that in 1902 he was granted a divorce from his wife on her aggression, without allowance of alimony.

Immediately upon the granting of the divorce, he'did file a motion in his wife’s alimony case in Cuyahoga county, asking for modification thereof on the ground that the divorce had relieved him from further obligation to support her. This motion was overruled, and his attorney, Judge Penewell. notified the city of that fact and authorized it to continue its monthly payments of $25 to the divorced wife, which it continued to make to her.

Tn July, 1909, plaintiff filed his second motion in .the alimony case, in Cuyahoga county, for a modification of the order therein, and in October of that year, the common pleas court vacated its foraier order and directed the city to discontinue its payments to the former wife. This order, on error to the circuit court, was affirmed, whereupon the city ceased to make further payments to the wife.

Thereupon plaintiff brought this action against the city to recover from it payments made to the wife prior to the modification of the alimony decree in 1909. Pie claims that the judgment for alimony in Cuyahoga county became void upon the rendition of the divorce judgment in Geauga county; that the city had notice of the divorce and should, therefore, have ceased to make further payments to the wife, notwithstanding the court réfused to grant the motion to modify the judgment.

We find no ground for this claim.

The refusal in 1902 to modify the alimony judgment may have been erroneous, but the judgment did not become automatically void, upon the rendition of the divorce.

Up to the date of the divorce the judgment for alimony was valid, for the court awarding it had jurisdiction of the parties and of the subject-matter.

Judgments are sgt aside only in the manner pointed out by law; and an alimony judgment may be set aside on motion addressed to the'proper court; until the court acts, the original judgment is binding.

The city is protected in the payments it made to the former wife, by the order of the court requiring it to make said payments.

Judgment affirmed.


text:
    APPEAL FROM THE PROBATE COURT.
    Court of Appeals for Darke County.
    Ida F. Miller v. John W. Miller, Administrator.
    Decided, May 1, 1914.

      Administrator — Appointment of, by the Probate Court — Not Subject to Vacation by Appeal, When — Sections 10605, 11206 and 10859
    An order by the probate court appointing as administrator of the estate of a decedent a person other than the one named in the will is not subject to review by appeal, where there is a finding by the probate court that the applicant for appointment designated in the will is not a suitable person to administer the estate.

      Martin B. Trainer, for plaintiff in error.

      D. IF. Bowman and John F. Maher, contra.
    Ferneding, J.; Allread, J., and Kunkle, J., concur.
   We have been favored in the consideration of this case by exhaustive briefs of counsel on both sides, which have been of valued service to the court in the conclusions arrived at.

The one question for solution presented seems to be whether or not an order of the probate court appointing one, not the party designated by the will, as the administrator of the estate, is subject to review by appeal.

Michael Miller of this county died, leaving a last will duly probated, item 4 of which provides: “ I do hereby nominate and appoint my trusty daughter, Ida F. Miller, my ex'ecutrix of this my last will and testament, ’ ’ etc. The probate court appointed her brother, John W. Miller, administrator with the will annexed of the estate of Michael Miller, deceased, ,a certified copy of the journal entry from the probate court pertaining to said appointment being as follows:

“This day this cause came on to be heard upon the application of Ida F. Miller, to be appointed executrix of the estate of said Michael Miller, deceased, upon the evidence and argument- of counsel, and the court being fully advised in the premises do find that said applicant is not a suitable person to administer said estate, and do find that John W. Miller is a suitable person to act as such .administrator, etc. Therefore the court do hereby appoint said John W. Miller administrtator with the will annexed of the estate of Michael Miller, deceased.
“Thereupon came said administrator, etc., and filed herein his application for such appointment and also presented herein his bond as such administrator, etc., in the sum of $32,000.00 with John Gilfillan, R. G. Howell, A. Z. Bruss and O. P. Wolvertion as sureties thereon according to law. And this bond is approved by the court and ordered made a matter of record of this court, as required by law and letters are issued accordingly. ’ ’

Section 10605, General Code, provides:

“The probate court shall issue letters testamentary thereon .to the executor if any be named therein if he is legally competent.”

Counsel for Ida F. Miller in his brief asserts that this provision of the statute is “mandatory,” unless the executor named in the will is legally incompetent. We have no quarrel with this general view, but it is manifest from a consideration of the journal entry that the probate court, for reasons satisfactory to himself, and presumably upon the evidence found that Mrs. Miller was not legally competent. Whether this judgment of the probate court is well founded or ndt can only be determined by .a reviewing court in a case properly brought before such reviewing court where the evidence can be reviewed.

Mrs. Miller sought to bring the case to the common pleas court by an appeal. The’ court of common pleas upon motion, dismissed the appeal. From this ruling and judgment of the court of common pleas the case is brought to this court for review on error. The only question, therefore, for our consideration is whether the court of common pleas was justified in dismissing the appeal.

Counsel for the appellant rely upon the clause in Section 11206, General Code, providing for appeals, from an order removing or refusing to remove an executor, administrator, guardian, assignee, trustee or other officer appointed by the probate court.

The order of the probate court from which the .appeal was attempted involves an original appointment, and not a removal or a refusal to remove. Counsel for appellant also relies upon Section 10859, General Code, which provides:

“From any order, judgment, or decree of the probate court, an appeal may be taken to the court.of common pleas, by any person against whom it is made, or who is affected thereby, in the manner provided in other cases. Bills of exceptions may be taken and allowed upon any decision of the probate, common pleas or circuit court, in such proceedings as in other cases.”

We think it has been sufficiently established that Section 10859, General Code, is limited to proceedings affecting orders of distribution and can not be made to apply to orders affecting original appointments of executors and administrators where the discretion of. the original court is involved. Citing Barr v. Klosterman, 2 C. C., 390 (affirmed 27 Bull., 392); Kislingberg v. Donovan, 11 O. Dec., 542; In re Kremer, 8 N.P. (N.S.), 218, 219; Ebersole v. Schiller, 52 O. S., 702.

It is contended on behalf of .the appellant that Section 11206, General Code, si^ra, should be liberally construed according to its spirit and reason, and to include cases of original appointment where the court declines to appoint the person or persons named in the will. Referring to the decisions upon this subject, we find that the courts have construed the statute in respect to appeals from the probate court to the common pleas court, strictly, rather than liberally. This policy is stated by Okey, J., in Brigil v. Starbuch, 34 O. S., 287:

“An examination of our legislation and decisions shows that it has been the general policy in this state not to permit an appeal from an order appointing or removing ,a trustee, and that this extends to guardians, executors and administrators. In some states the rule is different. 1 Green’s Ch., 78; 1 McCarter, 540; 25 N. J. Eq., 508; 3 C. E. Green, 472; 1 Williams’ Ex. (6 Sm. Ed.), 642. The exception as to an appeal from the appointment of .a guardian for a lunatic or an idiot, made, doubtless, by reason of the gravity of the proceedings and its effect upon the persons, estate, and family of the ward, tends to prove the general rule in this state, and would seem to require that those who assert other exceptions should be able to point out some provision in terms warranting the appeal.”

In the case of Browne v. Wallace, 66 O. S., 57, it was held in an appeal under Section 11206, General Code, that:

“As the right of appeal exists' only by virtue of the statutes, in order to give the appellate court jurisdiction, the statutory provisions must be strictly followed.”

In the case of Collins v. Mitten, 57 O. S., 298, Judge Bradbury, speaking for the court, says, at page 291:

“The right of appeal is statutory, and we must look to the statutes to ascertain if it has been lawfully exercised. The party who seeks' to exercise this right, must comply with whatever terms the statutes of the state impose upon him as conditions to its enjoyment.”

This policy of construction of statutes in regard to appeals was evidently in the mind of the General Assembly in the enactment of Section 11206, General Code, for it was expressly provided that appeals may be taken “in proceedings to-appoint guardians or trustees for idiots, lunatics, imbeciles or drunkards. ’ ’

Under the well known maxim, “expressio unius est exclusio alterius” the Legislature having expressly conferred the right of appeal in the cases specifically mentioned in the statute, there follows a reasonable inference that appeals were not to be allowed in other cases of original appointments. This construction is also in harmony with sound public policy. If appeals were to be allowed from cases of original appointments, it would often leave estates without any one in charge of the assets while the ¡appointment was being litigated. The dictum of the Supreme Court in the case of Bank v. Telegraph Co., 79 O. S., page 100, to the effect that, “The defendant if it had such an interest in the estate as would give it the legal standing to do so, might have attacked the appointment in the probate- court, or by appeal or error, ’ ’ should be construed with the facts of that case.

It was not evidently intended to overrule the cases above cited nor to establish the right of an appeal direct from the original appointment. The court evidently had in mind an appeal from the final judgment upon an application to remove an administrator who had been improperly appointed. The ease of Schumacher v. McCallip, 69 O. S., 500, did not involve an appeal from the probate court and is, therefore, not authority on this subject.,

The opinion expressed by Judge Ferris, in 7 N. P., 665, is one of discretion for the probate court. In the case cited in this report the court appointed the party named in the vpílj and then later removed him. This may be a very proper course in ordinary cases, but we can not apply that rule in a reviewing court, unless the ease is properly before such court with all the evidence bearing upon the propriety of such appointment. For aught we know, and we have nothing before us either in support of or adverse to the proposition, the probate court may have had good ground for the judgment rendered.

Whether proceedings in error in the common pleas court would be available is not involved in the present litigation and we, therefore, express no opinion in respect thereto.

The appeal was properly dismissed by the court of common pleas, and its judgment will,'therefore, be affirmed by this court.


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    ADMISSIBILITY OF STATEMENTS MADE BY AN ACCUSED PERSON IN A FOREIGN LANGUAGE.
    Circuit Court of Cuyahoga County.
    Ignazio Riolo v. State of Ohio.
    Decided, December 16, 1911.

      Criminal Law — Evidence—Conversation hi Italian Given in English to Jury — Cross-Examination of Accused — Previous Admissions Toy Sim.

    1. Statements made by the accused in Italian in answer to questions put to him in the same language by police officers, after his arrest, may be given to the jury in English by said officers, their ability to understand and translate Italian correctly being first inquired into and put before the jury.
    2. The accused having given evidence in his own behalf may, on cross-examination, be questioned as to a different story by him told to police officers after his arrest.

      T. J. Ross for plaintiff in error.

      J. A. Cline, contra.
    Winch, J.; Marvin, J., and Henry, J.. concur.
   There was no error in the admission of the testimony of the two police officers as to statements made by the accused to them at the police station, after his arrest. Though they questioned him in Italian, and he answered in the same language, it was proper for them to repeat in English to the jury what had been said, by and to them in Italian. It would have been idle to require them to first give to the jury the questions and answers in Italian and then translate the same themselves, or have an interpreter to translate it to the jury. Their ability to understand the language and translate it correctly was gone into and put before jthe jury, so that it was enabled to give this evidence the weight to which it was entitled.

Nor was there error in cross-examining the accused as to what the police officers had said to him and what he had said to them .at the police station. The examination on this point was not for the purpose of eliciting affirmative proof that he had made the admissions testified to by the police officers, but to discredit his evidence given in his own behalf by showing that he had previously told a different story. The evidence of the police officers was offered by the state in chief.

As to the weight of the evidence:

The testimony of the police officers, admitted to be true in several important particulars by the accused himself in the cross-examination referred to, shows that the accused was clearly guilty as charged in the indictment and properly convicted.

Einding no error in the record, and believing that substantial justice was done in this ease, the judgment is affirmed.


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    DAMAGES CLAIMED ON ACCOUNT OF AN ABANDONED APPROPRIATION OF LAND.
    Circuit Court of Mahoning County.
    Jeannette J. Jack v. Lake Erie & Eastern Railroad Company.
    Decided, December 26, 1911.

      Appropriation Proceeding — Abandonment' of — Remedy of Lot Owner,

    Section 11060, General Code, prescribes the only remedy allowed by law to the owner of property sought to be appropriated in a proceeding brought in good faith and subsequently abandoned.

      S. L. Clark, for plaintiff in error.

      Arrel, Wilson & Harrington, contra.
    Henry, J.; Winch, J., and.Marvin, J., concur.
   The parties to this proceeding in error stand here as they stood below. There, the plaintiff commenced her action to recover damages alleged to have been sustained by- her in the deterioration caused by the action o£ the elements, to .a partially completed building and to materials intended for the completion of the same, upon a lot owned by her,'during the pendency of appropriation proceedings begun by tbe defendant and subsequently abandoned by it. The gist of her action lies in the defendant’s interruption of her building operations by the commencement of said .appropriation proceeding. If the proceeding were prosecuted to judgment and the property taken, she might well have been denied compensation for. money expended in the improvement of the property sought to be appropriated during the pendency of the appropriation suit. She claims, therefore, to have been prevented from making use of her property during the period, and to have suffered loss, also, because of damage by the weather to the partially completed improvement of her premises.

- She claims here to certain errors in the charge and elsewhere in the record of the trial below. A bill of exceptions was duly perfected, containing a statement of the trial judge of what the evidence tended to prove, and setting out -the charge to the jury in full. Prom this it affirmatively appears that no evidence was offered of any bad faith in the commencement or in the abandonment of the appropriation proceeding. Although that proceeding was not a civil action, we see no reason why the rule .laid down in The Cincinnati Daily Tribune Co. v. Bruck, 61 O. S. 489, does not apply. The syllabus is as follows:

“As a general rule no suit will lie for the malicious prosecution of a civil action, where there has been no arrest of the person or seizure of property.
“A stockholder of an incorporated newspaper company maliciously .and without probable cause, commenced a suit against the company for dissolution and the appointment of a receiver, to the great injury of the company. . The application was denied and the suit dismissed. In an action for libel, provoked by the suit, the company by way of counter-claim asked to recover damages for the malicious prosecution of the suit against it. Held: That while the facts are sufficiently connected with the subject of the action for the purpose of a counter-claim they do not constitute a cause of action, entitling the defendant to relief by way of damages, as there was no arrest of the person or seizure of propérty.”

But whether the rule thus laid down be applicable or inapplicable to the malicious prosecution of an appropriation proeeeding, and irrespective, also, of the presence or absence of the element of malice on the part of the defendant here in commencing and subsequently abandoning the appropriation proceeding, contemplated by the petition, we are of opinion that Section 11060, General Code, prescribes the only remedy allowed by law to the owner of property sought to be appropriated in a proceeding brought in good faith and subsequently abandoned. That section reads as follows:

‘ ‘ The corporation may abandon any case or proceeding after paying into court the amount of the defendant’s costs, expenses, and attorney fees, as found by the court. If the corporation fails in any case to make payment or deposit, as provided in the next preceding section, within thirty days after confirmation of the verdict, on motion of the party entitled to such payment, to be filed within ten days after the expiration of such thirty days, the judge shall enter an order directing the corporation to make such payment or deposit within thirty days after the date of the order. Unless such corporation, within such time makes such payment or deposit, it shall be held thereby to have abandoned the property, rights, or interests so appropriated, and all claims thereon under its proceeding, and the judge shall issue an order to thatt effect. He also shall enter a judgment against the corporation, and in favor of the party entitled to such payment, for such amount of expenses, including time spent and attorney fees incurred by him in the proceeding, as, upon the evidence offered in that behalf, the court deems just, for which execution may be issued against the corporation. The directors of the corporation shall be individually liable upon such judgment, and may be made parties thereto by actions. ’ ’

The first sentence of this section obviously relates to a voluntary abandonment of an appropriation proceeding by the plaintiff at any stage thereof, either before or after judgment.

.It follows that the plaintiff had no cause of action upon those facts alleged in her petition below, which the evidence tended to prove. This renders the other assignments of error upon the record before us quite immaterial, and the judgment is affirmed.


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    FAILURE TO COMPENSATE BY BEQUEST FOR SERVICES RENDERED.
    Court of Appeals for Carroll County.
    Lewis Walters, as Administrator of the Estate of Nancy J. Walters, v. John D. Heidy.
    Decided, April Term, 1913.

      Compensation ¡or Services — Where Promised to he Made hy Witt, But the Promisor Died Intestate — Statute of Frauds — -Limitation of Actions.

    W agreed with H that if he would render her certain services she would, in compensation thereof, make a will giving him all the property she owned at the time of her death. H performed services under the agreement. W died intestate. Held:

    1. H can maintain an action to recover the value of the services so rendered.
    2. The statute of limitations does not begin to run against such action until the appointment of an administrator of W’s estate.

      Wallace M. Handley, for plaintiff in error. «

      I. N. Blythe, contra.
    Metcalfe, J.; Norris, J., and Pollock, J., concur.
   Defendant in error was' plaintiff below. In the second amended petition filed in the ease it is averred in substance, that in February, 1890, he entered into a verbal agreement with Nancy Heidy, whereby he agreed to live with her upon her farm, known as the Tom Neely farm, as long as she desired him to do so, and that in compensation for his services to be rendered her in that' behalf she agreed to make a will and give to him all the property she owned at the time of her death. That in pursuance of that agreement he did move onto said farm and for-a period of about two years gave his work and labor to the said Nancy Heidy, and performed services which he claims were of the value of a thousand dollars. In the meantime Nancy Pleidy married Lewis Walters, plaintiff in error in this case, and some time after her marriage with Walters Heidy moved away from the farm. Nancy Walters died in 1910 intestate, and after the appointment of an administrator Heidy brought his action to recover the value of the services which he claims to have rendered under his .agreement with her. Upon the trial of the ease Heidy recovered judgment. A number of questions are urged in argument, but we think the only questions of importance are, whether the action can be maintained, and if so whether it is barred by the statute of limitations.

That the agreement of Mrs. Walters to compensate Heidy for his wrork by will was within the statute of frauds, and that no action can be maintained thereon for specific performance- or for damages seems clear. Austin v. Davis, 13 L. R. A., 120; DeMoss v. Robinson, 46 Mich., 52; Wallace v. Long, 55 Am. Rep., 222; 8 L. R. A., 414; 25 Am. Law Journal, 69.

But if no action can be maintained upon the contract, does it follow that if services are rendered in pursuance of a mutual understanding that compensation shall be made therefor by will, and the party receiving the services dies without making the expected compensation, that the party rendering the services may not recover their value from the estate of the deceased? Without entering into a discussion of this question we think the right to recover in such case is fully sustained by the following' authorities: Robinson v. Raynor, 28 N. Y., 494; Martin v. Wright, 13 Wend., 460; 28 Am. Dec., 468; 41 N. Y., 480; Jenkins v. Stetson, 9 Allen, 128, Wellington v. Apthorp, 145 Mass., 69; 57 Am. Rep., 759.

It is urged that the statute of limitation began to run at the time Heidy ceased to labor on the farm, and hence that his cause of action is barred. Upon the question of the statute of limitations the trial judge charged the jury as follows:

“If upon consideration of all the evidence adduced on the trial you find that said agreement between plaintiff and decedent as claimed by plaintiff was in fact made, that said plaintiff was to be compensated for said alleged services rendered, and means of support furnished, if any, and that he was not to receive such compensation until the death of Nancy J. Walters then in such event I say to you as matter of law that his cause of action therefor would not arise and would not- accrue to him until the date of said Nancy J. Walters’ death, which is admitted to be May 19, 1910, and in such event, plaintiff’s cause of action would not be barred by the statute of limitations.”

The evidence in this case tends to show that the services which Heidy was to render for Mrs. Walters were to be paid at her death by a provision in her will. The manner in which they were to be paid is a matter of indifference. The question is was the compensation to be made at her death. If Heidy was not to be paid until her death how could a cause of action arise before that time? In the case of Marsh, Admr., v. Clark, 11 O. D., 564, it is held that where an uncle agreed to compensate his nephew by will for services that the statute of limitations did not begin to run until the death of the uncle. In Holies v. Riddle, 74 O. S., 173, the holding is to the effect that in an action on a contract not in writing which became due by the decease of the debtor the cause of action does not accrue until the appointment of an executor or an administrator. We do not think that the fact that the contract in this case could not be enforced specifically makes any difference in the application of the principle announced in Holies v. Riddle, and that the statute would not begin to run until the appointment of an administrator for Mrs. Walters’ estate. And as the death of Mrs. Walters and the appointment of the administrator’ occurred within six years prior to the commencement of the suit the statement in the charge that the statute began to run at the death of Mrs. Walters is not prejudicial.

Judgment affirmed.


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    INTERFERENCE WITH RAILWAY TRACKS IN BUILDING SEWER.
    Circuit Court of Mahoning County.
    The Mahoning Valley Railway Company v. John Grady.
    Decided, December 26, 1911.

      Contract — Agreement to so Construct Sewer as Not to Interfere with Railroad — Ordinary Care Measure of Duty.

    Under a covenant in an agreement between a contractor building a sewer in a city street and a street railroad company operating a street railroad in the same street, that the contractor “will con'struct said sewer south of the south or east bound tracks of second party and far enough therefrom so as not to interfere with said tracks or the ties and foundations supporting the same,” ordinary care in the construction of the sewer is the measure of the contractor’s duty.

      Arrel, Wilson & Harrington, for plaintiff in error.

      8. 8. Conroy, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The parties to this proceeding in error stand in the relation opposite to that in which they stood below. There the ¡action was brought to recover $755 with interest, being the balance alleged by the plaintiff below to be due upon an agreement between the parties, as follows:

‘ ‘ This agreement made and entered into by and between John Grady, of Youngstown, Ohio, first party, and the Mahoning Valley Railway Company, a corporation, second party, Witnessbth, That:
“Whereas, first party has a contract with the city of Youngstown for the construction of a sewer from Central Square to Spring Common in said city, and the specifications for said sewer call for its construction in the middle of the street, beneath the tracks of second party, and second party desires to have said sewer constructed south of its south or east bound tracks, and first party is willing to so construct said sewer, under the conditions hereinafter‘set forth:
“Noto, Therefore, first party and second party do ¡agree as follows:
“First. First party agrees that from Central Square to Deibel’s store, he will construct said sewer south of the south or east bound tracks of second party, and far - enough therefrom as not to interfere with said tracks or the ties and foundations supporting same; that from Deibel’s store to Spring Common, he will construct said sewer far enough from the north or west bound track as not to interfere with the operation and movement of cars thereon, or the ties and foundations supporting said north bound track.
"Second. First party agrees that he will excavate for, furnish all material and labor, lay and construct such lateral sewer connections at such points, in the manner, and in such number, as the city engineer of the city of Youngstown shall designate, and agree to accept in full payment therefor, the sum of one dollar and twenty-five cents ($1.25) per lineal foot of such lateral sewer connections; second party to pay only for the additional lateral connection required by reason of the construction of the sewer on the south side of Federal street instead of in the center of said street; as originally specified by the city of Youngstown.
"First party further agrees to so construct said sewer as to at all times-permit the free operation of cars on the northwest bound track of second party between 'Central Square and Spring Common, and not io obstruct said track between said points, nor in any manner to interfere with the operation of the ears thereon.
"Second party, in consideration of the agreements of first party, agrees to pay first party the sum of twenty-two hundred dollars ($2,200.00) ; and further agrees to remove its south or east bound track between Deibel’s store and Spring Common.
"It is mutually understood and agreed, that temporary crossovers shall be installed at, or near Central Square, and Deibel’s store, and at points intervening, in order that the movement of cars between said points shall not be unnecessarily interfered with; and that first party shall prosecute the work of construct, ing said sewer to its earliest nossible completion. It being the intent and purpose of this agreement that the operation of cars on the north or west bound track shall not at any time be interfered with or obstructed or the traffic thereon delayed.
"Third. The terms, conditions, covenants and agreements herein contained shall extend to and be binding upon respective heirs, administrators, successors and assigns of the parties hereto.
"Witness the signatures of the respective parties hereto to duplicates hereof, this 15 day of August, 'A. D. 1907.
"John Grady,
"The Mahoning Valley Railway Company,
by R. Montgomery,
‘ * Vice-President.
‘1 In presence of
“W. H. McMillin.
“The above agreement is approved by us this 16th day of August, A. D. 1907.
“D. Heinsepman.
“P. Hagén,
“ J. E. Rtjdge,
“Board of Public Service, Youngstown, Ohio.”

To this cause of action an answer and cross-petition were filed', admitting the plaintiff’s claim, except as the same should be offset by defendant’s counter-claim. Upon this matter the defendant alleged:

“That plaintiff, in violation of the terms of said agreement, failed and neglected to so construct said sewer as not to interfere, with said tracks and not to interfere with the ties and foundations supporting the same, but did construct said sewer upon such location and in such a manner as that the ties and foundations supporting the tracks of this defendant and the tracks were undermined, — caused to become depressed and out of alignment, and in such a condition as to interfere with and endanger the passage of cars thereover; that upon the completion of said sewer, this defendant was put to large expense by reason of being compelled to re-set said ties, foundations and tracks, and to repair, re-surface, and align the same, and that in consequence of the violation by plaintiff of the terms of said contract above set forth, and in the respects above set forth this defendant company has been damaged in the sum of one thousand dollars ($1,000).”

Other pleadings were filed by which issue was joined, and upon the trial, plaintiff recovered a verdict and judgment of $400, which does not allow enough of the counter-claim, according to the plaintiff in error here.

The chief error assigned is upon the eoiirt’s instructions in the charge to the jury, that ordinary care in constructing the sewer was the measure of defendant in error’s duty. It is urged that the court should have charged the jury that the defendant’s undertaking to save the railway company’s tracks and substructures from injury in consequence of the sewer excavation, was an absolute duty under the terms of the contract.

We recognize that the contract-might conceivably have been such as to require the defendant in error at all events to prevent injury to the railway company’s property from his work. But as we construe the contract actually made by the parties, it contains no such covenant. Grady agreed to construct his sewer south of the trades “and far enough therefrom as not to interfere with said tracks or the ties or foundations supporting same.”

The court charged, at the request of the plaintiff, and as we think correctly, as follows:

“If you find that plaintiff constructed the sewer in the proper place, that is, as far south as in the situation it possibly could be done, and that, in doing it, he exercised ordinary care, as between himself and the defendant railroad company, then the defendant would not be entitled to be compensated under their counter-claim. ’ ’

We find no error in this record, and the judgment is affirmed.


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    ALLEGED SLANDER. IN THE PULPIT.
    Circuit Court of Mahoning County.
    Thomas Wilk v. Taofil Robert.
    Decided, December 26, 1911.

      Slander — Words Spoken by Priest in Sermon.

    Unquestionably it is a part of the duty of a priest who has the spiritual charge of his congregation to look after the moral character of those in his church, to reprove them for immorality, and to do it with vigor and earnestly, but he can not charge in public those in his congregation who are not guilty of crime, with,being criminals, without being required to respond in damages, as any other man is required to respond.

      David Steiner, for plaintiff in error.
    W. S. Anderson, contra.
    Henry, J.; AVinch, J., and Marvin, J., concur.
   Thomas AVilk is the priest in charge of a Polish church; Robert is a member, of the congregation of said church.

On. the 8th of August, 1909, Wilk preached a sermon to his congregation in which he referred to Taofil Robert, using words which Robert claims to have been slanderous. Robert sued Wilk for this alleged slander. In his petition Robert gives the Polish words which he says Wilk used concerning him, and he gives what he says is the English meaning of the words used, and he says that what was said of him in the sermon means in English that he, Robert, was a knave, criminal, a rogue, a scoundrel, a villain, and .a cheat and deceiver.

The evidence shows that at the date named, Wilk preached a sermon to his congregation, in which he named Robert, with others, and used denunciatory language against them. There .is a conflict in the evidence as to just what Polish words were used, and the English meaning of the words used is not given the same by all the witnesses, but it is plain, from the evidence of all the witnesses, and from Wilk’s own testimony, that he used and intended to use language condemnatory of Robert, and the jury found, by the preponderance of the evidence, that the English meaning of the Polish words used in reference to Robert was substantially as charged in the petition. Without question, if the language used meant to charge Robert with being a criminal, a scoundrel, a villain and a cheat, these words were’slanderous, if not true.

The words were uttered in the presence of several hundred people who- understood the Polish language. The petition charges that they were false and malicious; that Robert, who carries on a small business at Youngstown, where these words were used, was greatly injured in his business by reason of the utterance of the words.

The defendant below, Wilk, by his answer, denies that he preached any sermon in which he in any manner referred to Robert either directly or indirectly. He sa.ys that it is his duty to conduct religious services in the church of which he was pastor, and to celebrate the mass, and to direct and exhort the people over whom he has charge to live honorable and moral lives; and he says that at the date charged, he celebrated mass and preached ■a sermon to his congregation.

As already said, the evidence clearly shows that Wilt did refer, by name, in the sermon preached on the date referred to, to Mr. Robert, and did use’ condemnatory language of him by name; but if the language used had only the meaning which some of the witnesses give to it, the words would not be slanderous in the way in which they were used. It was sought to show, on the part of the defendant below, that the priest, by the rules of the church in which he holds the official • position of priest, was privileged to use such language of and concerning the plaintiff below as he did use; but if the words used were such as directly charged the plaintiff with being a criminal, when in fact he was not a criminal, the official position of the priest could not relieve him from the responsibility to which any man is subject, who falsely charges another with being a criminal. •

Unquestionably it is a part of the duty of the priest who has the spiritual charge of his congregation, to look .after the moral character of those' in his church, to reprove them for immorality, and to do it with vigor and earnestly, but he must not charge in public those in his congregation who are not guilty of crime with being criminals, without being required to respond in damages, as any other man would be required to respond.

We do not feel that, under the evidence in this case, the judgment could be reversed because against the weight of the evidence. It was for the jury to say, and we are not surprised that they reached the conclusion, that the words used were slanderous.

It is urged, however, that the court erred in failing to charge a proposition requested of it. That request reads:

“Where a party makes a communication, and said communication is prompted by a duty owed either to the public or to a third party, or the communication is one in which the party has an interest, and it is made to another having a corresponding interest, the communication is privileged if made in good faith and without actual malice.”

We think this request was properly refused. Without any qualification of the words used in this request the jury might very well have been mislead by it. It can not be questioned that one may say things of another in the discharge of a duty for which, he would not be responsible as he would in the same sense if he used them simply as a matter of gossip, or for the purpose of circulating a story; but it is never any man’s duty to make statements concerning another which charge him with being a criminal, when such statements are not true.

In the charge as given, including the requests made by the defendant below, which were given, the court stated the law as fairly to the defendant below as he was entitled to have it stated. There is but one possible exception to this, and that is the charge as to punitive damages; but upon examination of the whole case, we think the defendant below can have no just complaint as to the charge in this regard. The court said:

“As to punitive damages, that is, ‘smart money,’ as it is- sometimes called, that is, damages in addition to compensatory damages, it is a question that is left with you in your own good sense and judgment to determine whether you will give punitive damages or not. You may give them if you think, upon proper consideration of the case, something ought to be added; you may add something to compensatory damages, .and compensatory damages, I may say, include a reasonable counsel fee for the plaintiff for preparing and the trial of the case. But you are not obliged to give punitive damages unless you think it ought to be given; and punitive damages are given for the purpose, not only of punishing the defendant, but also as a warning to others; and that matter is left to the sound discretion of the jury as to whether they will or will not give punitive damages in addition to other damages, if you find for the plaintiff, that is, in addition to compensatory damages.”

It is charged in the petition that the words spoken were maliciously spoken. The court did not in this connection say that punitive damages could only be allowed in case the jury found that the words were maliciously spoken, but the court, in an earlier part of the charge, had instructed the jury as to the circumstances and facts under which they might return simply nominal damages, and then as to compensatory damages. We think the verdict itself which was for but $200, negatives any claim that the jury gave anything by way of punitive damages. The evidence tends to show that the plaintiff below suffered actual damages in his business, and as the amount of the verdict was but $200 it seems clear that no part of it could have been given by way of punitive damages.

Considering the entire case, we feel that substantial’ justice was done by the verdict and the judgment, and said judgment is affirmed.


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    VARIANCE NOT GROUND FOR REVERSAL UNLESS PREJUDICIAL.
    Circuit Court of Mahoning County.
    The Mahoning Valley Railway Company v. George Seefred.
    Decided, December 26, 1911.
    V<inan.ce Between Pleading and Proof.

    A judgment will not be reversed because of a variance between the pleadings and the proof and omission to conform the pleadings to the facts proved, unless the variance clearly misled the opposite party to his prejudice.

      Arrel, Wilson & Harrington, for plaintiff in error.

      Spellman & Hammond, contra.
    Winch, J.; Marvin, J., and Henry, J., concur.
   This was an action for personal injuries sustained by Seefred while boarding a car of the railway company. Verdict and judgment were for the plaintiff below.

The plaintiff in his petition alleged that, being ,at a proper stopping place, he signaled the motorman of the approaching ear to stop; that the motorman obeyed his signal and the ear came to a stop; that when it had so stopped he attempted to board the ear, but before he had opportunity'to get securely aboard the car, the conductor gave the motorman ,a signal to go ahead, and the latter started the car with a violent jerk which. threw the plaintiff to the ground severely injuring him.

The petition further alleges that the injuries so received were . directly and proximately caused by the sudden starting of the car without giving plaintiff sufficient and reasonable opportunity to board it, and without warning him that the ear would be so started.

The answer, in addition to containing a general denial, further averred that the plaintiff attempted to board a car not then in condition to be boarded by him, and did so without exercising any care or caution .whatsoever.

Upon the trial plaintiff introduced evidence tending to prove all the allegations of his petition, including the averment that the ear had stopped before he attempted to board it.

The defendant introduced evidence tending to prove that the ear had not come to a complete stop, but had only slowed down, when the plaintiff attempted to get aboard it.

Claiming that the plaintiff could not recover under the allegations of his petition, unless the jury should find that the .car came to a complete stop before he attempted to board it, the defendant reserved that point alone for the consideration of this court by exception to the trial court’s refusal to charge certain requests preferred by it, both before and after the argument, and by excepting to the charge as given, the same authorizing a verdict for the plaintiff with proper qualifications, in event the jury should find that the car had either wholly stopped or so slowed down as to warrant a reasonably prudent man in attempting to get upon it.

We have here what is technically called a variance, provision for which is made by Sections 11556, 11557 and 11558, General Code, and it becomes important to determine whether the variance in this case was material or immaterial.

The gist of the action was the negligent starting of the car, either from a stop or from slow speed. Tt is conceded that if the car was started negligently with a jerk, either from a stop or from slow speed, and the plaintiff by reason thereof was thrown from the car, without fault on his part, he could recover.

Had plaintiff in his petition alleged that on his signal the car stopped or slowed up sufficiently for him to step aboard it, the question here made would not have arisen.

The allegations of the petition were proved in their general scope and meaning, and unproved, if at all, only in the unimportant particular that the car had stopped. The ease does not come under the last section oJE the General Code cited, but under the first section, 13556, which provides:

“No variance between the allegations in a pleading and the proof, shall be deemed material, unless it has actually mislead the adverse party .to his prejudice, in maintaining his action or defense' upon the merits. When it is alleged that a party has been so mislead, that fact must be proved to the satisfaction of the court. It also must be shown in what respect he has been mislead. Thereupon the- court may order the pleadings to be amended, upon such terms as are just.”

The evidence tending to create the variance was introduced by the defendant below. It was properly introduced without objection by anybody.

The record fails to- show that by the variance, the defendant was “actually mislead” in maintaining his defense upon the merits.

There is no allegation in the record that the defendant was so mislead at the trial, nor does the record show that it presented such question to the trial judge or undertook to point out in what respect it had been mislead, as required by the statutes.

It is not .urged in this court that the defendant company was mislead by the variance complained of, and there is no evidence satisfactory to this court that the defendant was in any manner mislead by the variance suggested, or the neglect of the trial judge to order the petition to be amended so as to cover the possibility and claim that the ear had not come to a complete stop.

Indeed, by raising the question in its answer, the defendant may be said to have broadened the issues in the ease so that no % amendment of the. petition was necessary. The trial judge evidently took this view of the matter.

In Hoffman v. Gordon, 15 O. S., 211, it was said:

“The evident object of the code is to vest in the court a discretion where it can be done without surprise or injury, to try the case-upon the evidence, outside of the pleadings, and if objection be made, to allow the pleadings to be conformed to the evidence at once and without terms.”

Here no objection was made to the introduction of evidence, no surprise or injury suggested, and no demand made that the petition be amended.

In the case of Dayton Insurance Co. v. Kelly, 24 O. S., 345, it was held:

“A judgment will not be disturbed for an omission of the court to order an amendment of the petition so as to make its allegations conform to the facts proved or admitted, where the variance between the allegations in the petition and the proof is not material.”

To the same effect is Sibilia v. Bahney, 34 O. S., 399.

To have granted the defendant company’s requests to charge would have been reversible error. Banta v. Martin, 38 O. S., 534, 537.

Section 13364, General Code (formerly R. S. 5115), provides:

“In every stage of an action, the court must disregard any error or defect in the pleadings or proceedings, which does-not affect the substantial rights óf the adverse party. No judgment shall be reversed, or affected, by reason of such error or defect.”

Following this injunction the Supreme Court, in the case of Benninger v. Hess, 41 O. S., 64, 69, speaking through Judge Diekman, said:"

“Where a judgment has been rendered and there has been a variance between the pleading ,and the proof, but not such as to mislead the opposite party to his prejudice, and where there has been an omission in such ease, to conform the pleadings to the facts proved, it will not be in furtherance of justice to deprive the plaintiff of the fruits of the trial, by a reversal of the judgment on error.”

By the amendment to said Section 11364, adopted May 10, 1911 (102 O. L., 132), it is provided that no reviewing court shall reverse a judgment for error or defect in the pleadings or proceedings, which does not affect the substantial rights of the party complaining, unless it can certify that substantial justice has not been done.

Being unable to so certify in this case, the judgment is affirmed.


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    LIABILITY FOR THEFT FROM A PULLMAN CAR PASSENGER.
    Court of Appeals for Hamilton County.
    Robert J. Bonser v. The Pullman Company.
    Decided, April 12, 1913.

      Negligence — Resulting in Loss by Theft — Money and Jewelry Stolen From a Sleeping Car Passenger — Company Held Not Liable.

    A sleeping car company is not an insurer of the safety of property belonging to its passengers although held to a high degree of cafe in its protection, but where the evidence goes to show that a passenger was himself negligent with reference to the care of money and jewelry which was stolen from his berth during the night; a judgment in favor of the company will not be set aside.

      Louis B. Sawyer and Wm. A. Roudebush, for plaintiff in error.

      Mortimer Matthews, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.
   Plaintiff brought this action to recover the value of a diamond ring and money which was lost or stolen out of his trousers pocket while he was a passenger in defendants’ sleeping ear. Before retiring plaintiff took his-valuable diamond ring from his finger and placed it in his trousers pocket, in which he also had $220 in money in bills. As he was somewhat disabled by lameness and had therefore taken a whole section he caused the porter to hang up his trousers with these valuables in the pockets, on a hook nest to the aisle within the curtain of his section and against the partition between, his berth and the adjoining one. When he secured his trousers in the morning while dressing, he discovered that his ring and money were gone.

It appears that the trousers could have been reached, by the occupant of the adjoining berth, where they hung through the night, and the pockets could have been rifled without being seen from the aisle, and for that reason the place selected was an unusual or dangerous place for the deposit of plaintiff’s money and diamond ring, and plaintiff had reason to know that it could not be as effectually guarded there ag in some other place he might have selected in his berth.

Plaintiff claims that the trial court erred in refusing to give the following special charge requested by him, to-wit:

‘11 charge you that defendant was bound to use ordinary care to prevent the theft of plaintiff’s money and ring while he was asleep, if plaintiff placed it anywhere in his berth, and plaintiff can not be held guilty of negligence contributing to the loss of his property by placing his money and ring in one place rather than in another in the berth.”

This charge if given would remove all possibility of plaintiff being guilty of contributory negligence so long as he places his money and valuables any place within the limits of the berth he is occupying regardless of how or where they might be placed or how accessible they might be to others in the car. It would seem to relieve plaintiff from all duty of exercising ordinary care regarding the safety of his own property. The law of this state does not recognize so lax a rule as to the duty of a passenger.

The law in Ohio requires such a passenger to take ordinary care for the safety and protection of his property, and while the sleeping car company is held to a high' degree of care in the protection of plaintiff’s property, it does not become an insurer, nor does its duty to relieve the passenger from taking ordinary care for the preservation of his property. The question of whether the company was negligent is for the jury.

The charge of the court below correctly states the law submitting the question of defendant’s negligence under the circumstances of the case to the jury and its evrdiet in favor of the defendant is sustained by the evidence. The judgment is therefore affirmed.


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    REMEDY OF A LESSEE FOR NINETY-NINE YEARS OF PROPERTY FOUND TO BE ENCUMBERED.
    Circuit Court of Cuyahoga County.
    George King v. Erla M. Barry.
    Decided, December 16, 1911.

      Lease for Ninety-Nine Tears — Reformation—Confusion as to Title— Reduction of Rent on Account of Encumbrance.

    1. Where there was no mutual mistake as to the terms of a ninety- . nine year lease entered into between the parties, it is no ground for reformation of the lease that the parties were in some confusion as to the encumbrances upon the title of the lessor.
    2. Where there is an encumbrance in the nature of an easement upon property which one has agreed to lease for ninety-nine years, and which encumbrance the lessor is unable to remove, the lessee may keep the premises and have his rent reduced proportionately.

      Henderson, Quail & Siddall, for plaintiff in error.

      Smith, Taft & Arter, contra.
    Marvin, J.; Winch, J., and Henry.' J., concur.
   In this action the plaintiffs seek the reformation of a contract of lease entered into between the parties, in reference to certain real estate owned by King in this city, which lease was to continue for a period of ninety-nine years. This reformation is sought on the ground of mutual mistake of the parties.

Without stopping to go over the evidence in the case, it does not appear that there was a mutual mistake, either as to the reading of the contract of lease, or as to its legal effect, but there was some confusion in the mind of King, and perhaps of Barry, as to the.state of the title to the south twelve feet of the premises leased. It was known that there had been granted a right-of-way across these twelve feet to an adjoining lot. It was apparently thought by Barry that the rights of the dominant tenant had been forfeited, in this right-of-way, and there was doubt in the mind of King on that subject, and without having that matter settled and fixed, the parties voluntarily entered into the lease.

Prior to the beginning of this action, Barry had made no claim against King because of any encumbrance by way of this right-of-way upon .the south twelve feet of the premises leased, but King apprehended that he might make such claim, and he seeks in this proceeding to have the contract of lease so reformed as to relieve King from warranting the title as against such encumbrance.

It would not be profitable to go over in detail the evidence in the case. As already said, we do not find that there was that kind of mistake as would justify granting the prayer of the plaintiff’s petition.

The defendant, by way of answer, sets up the fact that there is such a right-of-way existing over this property, or rather admits that the .allegations of the petition in that regard are true; and he asks that the court so modify the tei’ms of the lease as to fix an amount that should be deducted from the rental which the defendant undertook by the lease to pay to the plaintiffs for the premises. The evidence on the difference in rental value because of this franchise, when carefully considered, differs very little among the several witnesses. Giving the defendant the benefit of the last evidence produced on the part of the plaintiffs in that regard, which is fully as beneficial to the defendant as any evidence introduced by him or by any of the other witnesses of the plaintiffs, it would seem that the rental of these premises should be reduced one forty-fourth of the rent contracted by the defendant to be paid, and the decree will be that the petition of the plaintiffs be dismissed, that the contract of lease shall be valid as between the parties except that there shall be deducted each year from the rental specified in the contract one forty-fourth part of such rental, leaving the defendant to pay forty-three forty-fourths of the specified rental.


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    FIRST STEP IN TESTING THE CONSERVANCY ACT.
    Court of Appeals for Montgomery County.
    Ex Parte David Oldham, as a Citizen of Shelby County.
    Decided, March 21, 1914.

      Writ of Prohibition — Fixing Proceedure Under this New Remedy — Federal Practice to be Followed — Constitutionality of the Conservancy Act Sent Back for Determination in the Common Pleas Court.

    The writ of prohibition will not ordinarily be allowed until the question' ’ of jurisdiction has been made and overruled in the court or tribunal whose jurisdiction is challenged.

      Horace Andrews, H. H. McKeon and P. R. Taylor, for petitioner.

      John A. McMahon, J. Warren Kiefer, O. B. Brown, John Galvin and F. A. Belden, amicus curiae.

      C. C. Hall, Prosecuting Attorney, for Shelby County, J. Guy O’Donnell, Prosecuting Attorney, for Miami County, F. G. Long, Prosecuting Attorney, and A. J. Metler, for Logan County, G. S. Thomas, City Solicitor, and Robert A. Black, for City of Troy.
    Allread, J.; Ferneding, J., and Kunkle, J., concur.
   David Oldham, a citizen and tax-payer of Shelby county, petitions for a writ of prohibition against the judges of the courts of common pleas, to restrain them from acting as a conservancy court, upon the ground that the conservancy act is unconstitutional and void.

\ The preliminary question is whether this court as a matter 'of right can, or, as a matter of discretion, should entertain the writ in advance of action upon the jurisdictional question by the tribunal whose jurisdiction is questioned.

The writ of prohibition is a remedy revived or brought into the jurisprudence of our state by constitutional amendment' taking effect January 3, 1913. This remedy was not intended to become a substitute for, or supersede, the ordinary or usual procedure of courts of general or special jurisdiction.

The writ must be confined to occasions and causes where the usual procedure is defective or inadequate and where it becomes necessary to subserve the ends of justice.

No better statement of the objects and purposes of the writ can be found than in Wcdcott v. Wells, 21 Nev., 50:

“The writ of prohibition is an extraordinary remedy, and should be issued only in cases of extreme necessity. Before it should issue, it must appear that the petitioner has applied to the inferior tribunal for relief. The object of the writ is to restrain inferior courts from acting without authority of law in cases where wrong, damage and injustice are likely to follow from such action. It does not lie for grievances which may be redressed, in the ordinary course of judicial proceedings, by appeal. It is not a writ of right, but one of sound judicial discretion, .to be issued or refused according to the facts and circumstances of each particular case. Like all other prerogatime writs, it is to be used with caution and forbearance, for the furtherance of justice and securing order and regularity in judicial proceedings in cases where none of the ordinary remedies provided by law are applicable. ’ ’

Spelling, in his work on Extraordinary Relief, Section 1731, says:

“The extraordinary remedy by prohibition is confined at present, as when first employed, only to cases where it appears that the party seeking has an actual grievance and has applied without avail to the inferior tribunal for relief.”

The authors of Cyc. (32 Cyc., 624), thus summarize the American and English authorities:

“An application for a writ of prohibition will not be considered, unless a plea to the jurisdiction has been first filed and overruled in the lower court. Until the inferior court has been asked in some form, and without avail, to refrain from proceeding with the trial of a cause, or to dismiss the same, a superior court will not entertain an application for a writ of prohibition.”

Exceptions to the rule are noted in the text, but none apply to the present proceedings. Conflicting decisions are1 also noted.

Many of the eases cited by counsel for the petitioner acknowledge the general rule but originate and justify exceptions growing out of special circumstances. Some, notably the Arkansas and Colorado cases, are followed by subsequent cases in the same courts acknowledging the general rule.

City of Little Bock, Ex parte, 26 Ark., 52:

‘ ‘ Prohibition will not' lie to an inferior court, in a cause arising out of its jurisdiction, until that matter has been pleaded in the original court and the plea refused.
“The circuit court will not be presumed to take cognizance of matters not within its jurisdiction.”

Adams County Court v. People, 11 Pac. (Colo.), 86:

“A petition to hav.e a court prohibited on the ground of lack of jurisdiction from further proceeding in a criminal contempt proceeding is insufficient; it not showing that the jurisdiction of such court was challenged by appropriate plea or motion therein, so as to give it opportunity to pass on the question, as it is not assumed that, had the question been raised there, it would not have correctly ruled thereon. ’ ’

Chester v. Colby, Judge, 52 Cal., 516:

“If the question of the jurisdiction of an inferior court in a case before it has been submitted to that court by an appropriate pleading or objection, ,a writ of prohibition will not issue to restrain such court from proceeding in the case while the question of its jurisdiction remains undetermined by such court.”

Ex parte Oklahoma, 220 U. S., 191, 208:

“It is firmly established that where it appears that a court, whose action is sought to be prohibited, has clearly no jurisdiction of the cause originally, a party who has objected to the jurisdiction at the outset and has no other remedy, is entitled to a writ of prohibition as a matter of light. ’ ’

The argument is made that when the constitutional convention of 1912 submitted and the people adopted this judicial amendment, it was intended thereby to revive the common law writ as interpreted and practiced in the English courts.

This court will take judicial notice that eminent lawyers of the state were members of the constitutional convention and took a leading part in framing this judicial amendment.

It is, in our opinion, a more probable inference that the eminent lawyers who framed this amendment and' the citizens who adopted it contemplated the writ as known ih this state by the practice in the federal court. This inference is strengthened by the close analogy existing between the judicial amendments in other respects to the federal practice.

The general rule above .announced is especially applicable to the present proceedings. The enterprise at hand is one of great magnitude and importance. The conservancy act is of necessity comprehensive in its general scope and embraces many details.

The court specially charged with jurisdiction under the conservancy act consists in the present instance of ten judges of the court of common pleas, from the counties affected. These judges from the various courts are learned in the law, and experienced in constitutional interpretation. We think it would be an unjustifiable inference to be indulged in by this court that the conservancy court will not fully consider and correctly determine the constitutional as well as all other questions sub* mitted. If the law should be wrongly interpreted by the conservancy court, there will still be ample’opportunity for intervention in an appropriate court before the property of the petitioner can be affected.

For the reasons above stated, the writ of prohibition will be denied, and the petition therefor dismissed.


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    CONSTRUCTION OF A BUILDING RESTRICTION.
    Circuit Court of Cuyahoga County.
    Charles E. Kapitzky v. H. W. Brown et al.
    Decided, December 4, 1911.

      Building Restrictions — Porch no Violation, When.

    A porch built upon restricted territory is not a violation of a restrietion that the main body of any dwelling-house to be erected upqn a lot shall be back a given number of feet from the street line.

      H. J. Doolittle and Hoyt, Duslin, Kelley, McKeehan & Andrews, for plaintiff.

      C. W. Fuller and J. L. Cannon, contra.

    Winch, J.; Marvin, J., and ITenry, J., concur.
   The plaintiff is not entitled to have Brown’s side porch removed. Whatever restriction xwas originally placed by the Windermere Realty Company in the deeds to the Euclid avenue lots cornering on Idlewood and Rosalind avenues, this restriction had been violated before Kapitzky bought, to his knowledge. He made no objection when the second violation occurred on Miller’s lot. His suggestion that these violations were on the corners of Idlewood and did not affect his view on Rosalind, would be of some importance were it not for the specific statement in his own deed as to the nature of the restriction which would be made for his benefit when the Brown lot was sold; that agreement was in accord with the condition apparent to him on the corner of Idlewood.

We hold that the general .scheme as to the corner lots, of which he is entitled to the benefit, is that which he agreed to when he accepted his deed, to-wit, that the main tody of the dwelling-house to be erected on Brown’s lot should be back at least twenty feet from the southwesterly line of Rosalind avenue. Brown’s side porch, which encroaches upon this twenty feet, is not a violation of the general-plan or scheme as thus expressed.

The petition will be dismissed.


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    AS TO THE RIGHT OF MATERIAL MEN TO RECOVER FROM SURETIES ON THE CONTRACTOR’S BOND.
    Circuit Court of Cuyahoga County.
    The Cleveland Metal Roofing & Ceiling Company v. Nick J. Gaspard et al.
    Decided, November 27, 1911.

      Contractor’s Bond Given Owner — Material-Man Can Not Sue Thereon.

    A material-man who furnishes material to a contractor which goes into the construction of a building, for the construction of which the contractor has given bond to the owner, conditioned also to “pay, or cause to be paid, all claims contracted in reference thereto for material and labor,” can not maintain - an action for the value of the material so furnished against the sureties on the bond to the owner, it appearing that at the time said bond was given the claim of the material-man had not -been created and that he did not know of the existence of the bond, or rely upon it when he furnished the material.

      F. C. HcM'iman, for plaintiff in error.

      Pomerene tf; Karch, contra.
    Winch, J.; Marvin, J., and Henry, J., concur.
   The question in this case is whether a demurrer to the roofing company’s petition was properly sustained.

It recites that the roofing- company furnished material to the defendant, Nick Gaspard, a building contractor, who had given bond to the owner conditioned for the completion of the work under the contract, and that the contractor would “pay, or cause to be paid, all claims contracted in reference thereto for material and labor. ’ ’

The petition alleges the terms of the contract and bond, that the plaintiff’s claim accrued under the contract and had not been paid, and asks judgment against the obligors on the bond.

-The defendant sureties on' the bond filed the demurrer in question.

It fairly appears from the petition that at the time the bond was executed and delivered to the owner, the claim of plaintiff had not been created; it arose afterward iu the progress of the execution of the contract; and there is no allegation that plaintiff knew of the existence of the bond and relied upon it when it furnished material to the contractor.

The plaintiff claims a right to recover against the sureties under the rule of law expressed in the case of Emmitt v. Brophy, 42 Ohio State, 82, and cases there cited, to the effect that in Ohio an agreement made- on a valid consideration by one person with another, to pay money to a third, can be enforced by the latter in his own name.

This general rule, however, has its limitations, as shown by Judge Spear in the case of Railroad Co. v. Bank, 54 Ohio State, 60. After explaining the Emmitt case and showing that in it the claim of the third person was well known to all the parties, reduced to judgment and a lien on the property conveyed under Emmitt’s obligation to pa.y off and liquidate all claims and demands against it, the learned judge, on page 69, observes:

"No one of the oases cited carries the doctrine farther than the foregoing. In no one of them is it held that a right to sue in a stranger can be raised by mere implication. Nowhere is it held-that the obligation will attach in favor of future creditors not named and not known, and as to amounts not specified or then ascertainable, to the extent of giving to such creditors a right of action on the contract.”

Clearly the roofing company is one of "such creditors” and has no right of action on the bond. The bond sued on in the case of American Surety Co. v. Reader, 15 C. C., 47, contained the following covenant:

"We hereby agreeing and consenting that this undertaking shall be for the use of any laborer or material-man having a just claim as aforesaid, as well as for said board of education”; (to whom the bond read).

This express agreement was enforced against the surety company; there is no language of similar import in the bond here under consideration, and the case last cited is, for that reason, inapplicable.

Judgment affirmed.