text:
    THE DEFENSE OF PRIVILEGE TO A CHARGE OF LIBEL.
    [Circuit Court of Columbiana County.]
    Todd v. East Liverpool Publishing Co.
    Decided, March 31, 1906.

      Libel and Slander — Competency of Evidence as to Facts Admitted in Pleadings — Exceptions to Charge of Court — Proper Charge as to Innuendo — Libels Per Se — Defense of Privilege as to Matter Admitted to be False.

    1. In an action for'libel, where the falsity of the publication has been admitted, in the answer, the introduction by the plaintiff of evidence having reference to such falsity, brings it within the discretion of the court to permit the defendant to also introduce evidence on the same subject, provided the question of the truth or falsity of the charge is not submitted to the jury.
    2. The fact that no exception was taken to the charge of the court, does not prevent the raising of the question on review as to whether the verdict was contrary to law, where it was apparently the result of erroneous instructions.
    3. A newspaper publication which charges a policeman with having taken money from a prisoner for which he had refused to account, charges a crime involving moral turpitude, and is libelous per se; and it does not lose its libelous character hy reason of the fact that it was a mere repetition of what others had said.
    4. It is for the jury to determine whether the meaning ascribed to the publication by the innuendo was intended by the defendant, but the question is submitted only as bearing on the matter of actual malice and in mitigation of punitive damages, and not as a defense that would prevent recovery.
    5. A libelous charge against a irablic officer can not he defended by the newspaper printing it on the ground that it was of public interest and as such was privileged, but to make the defense of privilege available it must be shown that reasonable diligence was used to ascertain the truth of the charge and that it was published in good faith.
    Laubie, J. (orally): Cook, J., and Burrows, J., concur.
    Error to Columbiana Common Pleas Court.
    This is a proceeding in error by Todd to reverse a judgment of the court below in favor of the defendant, in an action brought by himself against the publishing company for libel. The article was written by a reporter of the defendant, and published in its newspaper, the Evening Review, at East Liverpool, this county, and is as follows:
    “Jenkins wants his money back. Say officers took $50 from him and that he was sober. Has hired an attorney.
    “Officer Temple Sykes Todd has got to convince Bert Jenkins that he knows nothing of the two $20 gold certificates, which Jenkins alleges the patrolman took from him on last Thursday evening and refused to turn over, to the mayor. A prominent attorney has been engaged by Jenkins and the case will be pushed.
    “Jenkins was arrested on a charge of being drunk and disorderly. He was taken to the city hall by Officer Todd and he says that Todd and Night Janitor Turnbull searched him. He claims that Turnbull took a $10 gold piece and some small change from his right pocket and that Todd got the certificates from his left pocket. He says that he asked the officers to count the money in his presence but they refused and Todd told him to get on in his cell, that the money would be attended to. It is said that several members of the board of public safety were present at the time. Jenkins expects to prove by several witnesses that he had the money within thirty minutes prior to the arrest and that he had no way to get rid of it. He also claims that he was not drunk. When the mayor offered to give him about $7 on the morning following the arrest he refused to take it saying that he had two $20 bills coming to him and that he wanted it all.
    “The story of his protest was published in a morning paper, but the name of tlie officer who was accused of taking the money was not published and suspicion therefore rests on the entire force. ’ ’
    Plaintiff alleged that the defendant thereby falsely and maliciously intended to and did charge him with having kept, stolen or embezzled $40, the money of the said Jackson, while acting as such policeman. The defendant in its answer admitted the publication but denied the intent charged, and alleged it published the article as a matter of public interest and in good ■faith. ■
    It is alleged as one ground of error that the court erred in admitting evidence upon the part of the defendant to show the truth of the act charged. Of course, under the pleadings it was admitted that the charge was unfounded; that it was false, as the truth of the charge was not alleged as a defense; consequently the plaintiff had no reason nor necessity to undertake to prove the falsity of the charge as a fact, but did do it. In the examination of Todd himself when upon the stand, his counsel proceeded to ask him and to have him tell that the man Jenkins did not have in his possession two $20 bills, and that he did not take such bills or money from Jenkins. So that the plaintiff opened the door himself. And in such a case where the plaintiff starts the evidence — as it is said, opens the door — - then in such case it is in the discretion of the court afterwards tc permit the defendant to give evidence upon the same proposition. The court permitted Jenkins himself to testify that he did have the two $20 bills, and that they were taken from him by Todd the night of his arrest. So wre can not say there was any error in admitting that evidence, as the plaintiff himself opened the door by attempting to show that which he had no occasion to do, because the falsity of the charge was admitted. If the court had permitted that question to go to the jury in that shape — that is, submitted to them whether the charge as a defense was true or false — then of course that would have been error. ■ But the court did not do that, and we can not say there was any error in the respect named.
    The principal ground of complaint, however, is in regard to the charge of the court. And in two particulars: One, as to whether this was a libel per se; and, secondly, whether it was a privileged publication.
    There was no exception taken to the charge of the court. The plaintiff below seemed perfectly content and satisfied with the charge of the court to the jury, so far as the record discloses; probably on the ground that there was no question but that he would recover. But it is the principal error here claimed, and relied upon, and of course if the law permits it, we have to consider it. And the law does permit it, under certain circumstances, and the case at bar is of that class. Where there is a complete-record of the whole proceedings — evidence and all, as here — and the verdict is contrary to law, and apparently was the result of erroneous instructions, no exception need be taken.
    In Mowry v. Kirk, 19 Ohio St., 375, the last head of the syllabus is:
    “When the whole case, evidence and all, is before the court, and the error of law occurring at the trial is such as to make the verdict contrary to law, a new trial should be granted, though no exception was taken to the ruling of the court. ’ ’
    And in Baker v. Pendergast, 32 Ohio St., 494, it was held, third head of syllabus:
    “Where the overruling of a motion for a new trial is assigned for error, and all the evidence offered on the trial, together with the charge of the court, is properly brought up by bill of exceptions, a reviewing court will, in connection with the evidence, look to the charge of the court, whether excepted to or not; and if there is reason to believe that the verdict was the result of erroneous instructions, will reverse the judgment and award a new trial.”
    In this case all of the evidence and charge of the court are in the bill of exceptions, and the question whether the verdict was the result of erroneous instructions must be considered. And it certainly was, as there can be no question but that the plaintiff was at least entitled to recover full compensation for all injuries caused by the publication.
    The court in this instance, after stating that the defendant did not deny the publication of the article, said to the jury:
    “If the article, upon its face, charged this plaintiff with being a thief, with having stolen the money of the man Jenkins, then I would be warranted in saying to you, as a matter of law, that such a charge was in and of itself libelous; but they do not directly charge him thus in the article in question, and the defendant, by its answer, says that it had no intention of so charging this plaintiff. That it did not falsely and maliciously publish nor intend to publish that this plaintiff stole, embezzled or took the money of another. The plaintiff, on the other hand, says that that is the just and fair inference to be drawn from the language used. Whether or no such fair inference is to be drawn from that article is a matter addressed to the good common sense of you twelve men, and upon your retirement the first thing that you ought to do is to take that article up and read it in its entirety, and consider it in detail to the end that you may answer that question whether or no , the article as published was such that, by a fair inference, men reading it would conclude and infer therefrom that the newspaper intended to charge this plaintiff with the taking improperly With the intent to appropriate that money. For if that is not the fair inference to be drawn from that article, then there is no libel, and your labors would be at an end, and you should return a verdict for the defendant. ’ ’
    So that the court submitted the whole question to the jury to determine whether this was a libelous article, and whether also there was any fair inference that did charge the plaintiff with being a thief, with having stolen or taken the money.
    In this, we think the court erred. The article itself is libelous on its face. It starts out with, “Jenkins wants his money back. Officer Temple Sykes Todd has got to convince Bert’ Jenkins that he knows nothing of the two $20 gold certificates which Jenkins alleges the patrolman took from him on last Thursday evening and refused to turn over to the mayor. A prominent attorney has been engaged by Jenkins and the case will be pushed. ’ ’
    And after reciting what Jenkins said, and what he claimed, as heretofore quoted, the article ends this way:
    “The story of his protest was published in a morning paper, but the name of the officer who was accused of taking the money was not published and suspicion therefore rested on the entire force. ’ ’
    And the reporter himself, when upon the stand, admitted that he was accusing Todd of stealing the money when he said, “I named the officer (Todd) who was accused of stealing the money. ’ ’
    A libelous article does not cease to be a libel because the party charged was simply repeating what some other body told him, ■or that he heard some other one say. If, in fact, it is libelous — • if it accuses another of theft, or illegally taking property— taking money from the person of another secreting and keeping it — the question is, whether the statement itself is libelous, and if it is, the party libeled is entitled to compensation, whether the defendant originated the libelous matter, or merely repeated what he had heard some one say. Saines v. Welling, 7 Ohio (pt. 1), 253; Fowler v. Chichester, 26 Ohio St., 9.
    The innuendo allegation in the petition is, that the plaintiff wrongfully took, stole, or embezzled $40, the property of Bert Jenkins. It does not undertake to set out that plaintiff was thereby held up to public disgrace, but it is alleged that he was thereby injured in his reputation, which is practically the same thing. We think there is no question but what the innuendo alleged is a true one as evidenced by the article itself.
    It alleges plaintiff was a policeman. That he arrested Jenkins for being drunk and disorderly, and that he and Turnbull, another officer of a similar character, searched Jenkins and took his money, the plaintiff taking $40 which he did not deposit with the mayor, but kept it himself. That Todd was the officer who was accused of taking the $40, and has got to convince Jenkins that he knows nothing of those two $20 gold certificates. That Jenkins has employed an attorney, and the case will be pushed. So that the defendant itself asserted that the burden was on the plaintiff, of proving, in order to exonerate himself, that he knew nothing about these certificates. This statement was not hearsay, but the defendants’ own charge, in effect that plaintiff took from Jenkins $40, secreted it and kept it for his own purpose, which, if true, would subject him to indictment for a crime involving moral turpitude and infamous punishment. It plainly was a charge of larceny or embezzlement, or both.
    In Cheaclle v. Buell, 6 Ohio, 67, it was held:
    “Words charging a person with having received á letter containing money, to deliver to another, that he gave himself a false name at the time, and that, instead of delivering the letter, he broke it open- and used the money, amount to a charge of larceny and are actionable in slander.
    “Larceny is a taking and conversion of another’s property in a secret and clandestine manner, and -with, the intention, by secrecy and fraud, to deprive the owner of his remedy to recover his goods.”
    In 18 Eng. L. & Eq. (2d Ed.), 473, in discussing the question, what is a larceny, it is said:
    “It is accordingly as obvious as it is well settled that the conversion of goods by one who has the mere custody of them is a trespass, and therefore a larceny. ’ ’
    Even in cases of bailment, a conversion after the termination of the bailment is larceny. Ib., 479.
    This plaintiff, the article in effect states, as a policeman', had the custody of this- money. It would not be criminal for him to search this intoxicated party when he arrested him, and to do as he did — put the money found on his person in an envelope and give it to the mayor to be held until the man’s case was disposed of by the mayor. It was not an illegal act. lie properly had the mere custody of the money. But if he refused to count the money and tell how much he took, and secretly kept it for his own use instead of putting it with the other, and turning it over to the mayor, it was a clear case of larceny, and that is the statement made in this publication.
    But if it was not, it was at least a charge of embezzlement. If the statements of the article were true, he had committed the crime of embezzlement.
    Section 6842, Revised Statutes, provides that:
    “An officer * * * who embezzles, ® i:< or secretes with intent to embezzle or convert to his own use, anything of value which shall come into his possession by virtue of his appointment or employment as such officer, * * * is guilty of embezzlement. ’ ’
    The plaintiff was an officer, recognized as such in various statutes of the state, and if he obtained the $40 in the manner stated, the money came into his possession by virtue of his office, and he secreted it with intent to convert it to his own use.
    The court should have instructed the jury that the article was libelous per se. There are no two inferences to be drawn from it. It charges, in effect, as alleged in the petition, that he stole the $10. Larceny or embezzlement is stealing, and the party who does it is a thief in the eyes of the law.
    “Where the charge, if true, would subject the plaintiff to an indictment for a crime involving moral turpitude, or to an infamous punishment, the words are actionable per se.” Alfele v. Wright, 17 Ohio St., 238.
    Indeed, any false newspaper article, the tendency of which is to degrade, and lessen the standing and reputation of the plaintiff in the community, is libelous per se. Tappan v. Wilson, 7 Ohio (pt. 1), 190, 193.
    And in Post Publishing Co. v. Moloney, 50 Ohio St., 78, the first paragraph of the syllabus is:
    “To print and publish of a person, that he ‘is said to have been in the workhouse, and to have had a criminal record,’ is libelous per se.”

    The plaintiff, Moloney, was a policeman, as the plaintiff in this ease, and the article in each case would injure the reputation and official integrity, and degrade the officer in the community.

      Maúle v. Brundage, 68 Ohio St., 89, is about the latest case we have from the Supreme Court. This was a case where the board of health of the village published a matter in regard to the village physician. And the court, in the second head of the syllabus, hold:
    “In an action for libel the question whether the publication is not libelous per se is a question for the court. And where the publication is claimed to be privileged, the question whether or not the occasion gives the privilege, the controlling facts being conceded, is also for the court.”
    In Kahn v. Cincinnati Times-Star, 8 N. P., 616, affirmed without report, Cincinnati Times-Star Co. v. Kahn, 52 O. S., 662, this is a portion of the holding:
    “1. Any written words are defamatory which impute to another that he has been guilty of any crime, fraud, dishonesty, immorality, vice, or dishonorable conduct, or has been accused or suspected of any such misconduct, or which, suggest that the person is suffering from an infectious disorder, or which have a tendency to injure him in his office, profession, calling or trade.

      “2. Everything printed or written which reflects on the character of another and is published without lawful justification or excuse, is a libel, whatever the intention may have been.
    “3. Unless the article published was entirely true, the law implies malice and liability will attach and the plaintiff can recover damages.”
    So that as the defendant’s defense-admitted that the statements were not true, the question whether the article was a libel per se was for the court; and the court should have instructed the jury that it was a libel per se, and that the plaintiff was entitled to recover full compensation for such defamation. Instead of doing that, as we have seen, the court left it to the jury to determine -whether or not it was a malicious libel.
    The court told the jury, “Whenever you go to your room the first thing you do, take up this article and read it in its entirety, and consider it in detail,” to the end that they might “determine whether or not, by a fair inference, it charges him with the taking improperly with the intent to appropriate that money.” It was a question of law, and not of fact, yet the jury were to take it and construe it as if it was a superior judicial tribunal to the one that was giving the instruction.
    The court- also left it to the jury to determine the inference to be- drawn from the article. And upon this proposition counsel for the defendant rely upon, and refer us to, the case of Slate v. Smily, 37 Ohio St., 30, which was a criminal action for libel. The concluding statement of the eminent judge that delivered the opinion shows that the case does not sustain the contention of counsel of this defendant. It is as follows, page 35:
    “Mr. Starkie states it to be the duty of the court to determine whether the language will bear the meaning ascribed to it by the innuendo, and if it will, that the question whether such meaning was intended, must be submitted to the jury. * * * This we believe to be the true rule, and applying it to the present case, wre think the point admits of little doubt, that the language employed by the defendant will bear the meaning which the innuendo ascribed to it, 'and that in holding otherwise the court erred. ’ ’
    It is the court’s duty, therefore, as laid down in that case, to determine the inference — whether the language would bear the meaning ascribed to it in the innuendo. Instead of doing that the court, in the case at bar, left it to the jury to determine whether or not the language would bear the meaning ascribed to it in the innuendo', although the language was too plain for doubt.
    The further proposition is entirely distinct from. that. That is, if the language of the article will, in the opinion of the court, bear the inference alleged in the innuendo, then the court may submit to the jury whether such meaning was intended by the defendant. That, however, is oniy on the question of damages, as a matter of excuse in mitigation of punitive damages, and not as a defense that would prevent a recovery. After the court has determined that it is a libel per se, that from its language the inference must be as charged in the innuendo, if the question may go to the jury, whether the defendant intended such inference, it could only be as bearing on the question of actual malice. But the court left every question in the case— malice included — to the jury as questions of fact. So that in all of these resp.ects we think the court erred.
    “Malice may be evinced in circulating slanderous reports as well as originating them; and if the words repeated are actionable in themselves, the malicious intent in publishing them will be inferred, unless it be shown that the circumstances under which the words were uttered and published were such as to repel the inference.” Fowler v. Ghieliesler, supra, page 14.
    “In the absence of a justifiable occasion for the publication, malice is but an inference of law, and should not be left as a question of fact for the jury.” Maulc v. Brundage, supra, page 98.
    As to privilege in regard to a libel there are two classes, at least. One is an absolute privilege that is possessed by the party who publishes the libel, and the other is a qualified one arising from the circumstances of the case, as it is said in regard to the newspaper press, that it may print in regard to certain things, and as to certain parties, that which will be conducive to the public welfare or morality of the community.
    The court in this case charged this:

      “A newspaper — under the Constitution of the state of Ohio, embodied in its Bill of Rights — like an individual, has a right to write, speak and publish just criticsm, even though it be severe, concerning public officers or private individuals. The Constitution in that respect reads thus: That ‘every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of the right. No law shall be passed to restrict or abridge the liberty of speech or of the press.’ And one of our courts in speaking in respect to that constitutional provision has aptly, I think, used this language:
    “ ‘The right to exercise reasonable criticism should be extended liberally to the newspaper press. Jus]; criticism, though severe, may be a great conservator of the character and morals of the people. To truthfully and fairly hold up to public view and condemnation conduct that is wrongful and detrimental to social well-being is a yery useful and important office of the newspaper press.’
    “You are therefore instructed that whenever the object of any newspaper publication, fairly considered, is not to injure the reputation, but to correct and hold up to public condemnation that which is hostile to morality and official integrity, does not come within the definition of libelous matter so long as the author or authors keep themselves reasonably and in good faith within the line of truth and wholesome criticism.”
    Thus the court correctly quoted to the jury the provisions of the Constitution and the declaration of the Supreme Court upon this question, which the court affirmed in the emphatic language quoted; but it was a mistake to apply such doctrine to the case in hand. This was not a ease where the defendant was “holding up to public view and condemnation conduct of the plaintiff that was wrongful and detrimental” or “hostile to morality and official integrity.” If Todd had been convicted of larceny, or it was shown as a fact that he had stolen the money, then his conduct might have been held up and commented upon in the public pjress. But that was not this case. It was not a case where he had, in fact, taken the money. It was admitted that he had not. It was admitted that the charge was false, and admitted in such a shape that tfre defendant could not possibly controvert it.
    Where an act is really done by an officer — actually performed — there the public press may comment upon it and bring it up before the public for public condemnation, if it is wrongful. But it must be such a case to justify such criticism. This was a different case entirely, and the law thus given to guide the action of the jury had no application to it, nor should this question have been submitted to the jury at all. The controlling facts being conceded, as in the case of Mauk v. Bnmidage, supra, the question whether occasion gave the privilege was for the court. It was not a privileged communication, because the defendant did not attempt to assert, its truth, but admitted plaintiff had not committed the act. Then why should they attempt to hold him up, or be justified in holding him up, to public condemnation, for doing that act — an act which he did not do, and which they admit he did not do ?
    And again: As to a qualified privilege growing out of the circumstances which might relieve the defendant from punitive damages. The eases that I have referred to bear upon this question. And they show that when, as in a case like this, the newspaper company that undertakes to. set up that the article referred to was a matter of public interest, and that it was justified in commenting upon it, must show, in order to rebut actual malice and prevent punitive damages, not only that it acted in good faith, but that it had used reasonable diligence to ascertain- the truth. But the court in the charge eliminated all question as to reasonable diligence upon part of the defendant, and instructed the jury that good faith alone was sufficient to ■uphold such claim. This man Jenkins was arrested for being drunk and disorderly,°'and he pleaded guilty and was fined, and the defendant knew it, and yet it declares in this article, “Jenkins says he was not drunk.” So the defendant ought to have known that he was lying, and yet it took no steps to ascertain the truth of this charge against the plaintiff. Take the statement of the reporter himself when on the stand.
    Question. “What steps did you take to ascertain what there was in the story ? ’ ’
    Answer. “After hearing the story that Mr. Jenkins had accused Mr. Todd of stealing $40 from him, and that he had not been able to get the money back at the city hall, and had employed an attorney to get the money back for him, I then called up the attorney to corroborate the story. And the attorney told me that he had taken the ease and would see what there was to it.”
    Then he states that there had been a publication of the matter in the other city paper, the “Tribuna,” and he is asked:
    Question. “In what particular did yours differ from the Tribuno story?”
    Answer. “Well, about the only particular I think was the fact that I named the officer who was accused of stealing the money, and that the ease had been given to an attorney.”
    And that is all the means he took to ascertain the truth. Tie had called up Jenkins ’ attorney and asked him, and the attorney said he had taken the case and he would see into it — giving him no assurance of the truth of Jenkins’ statement. In the article itself the reporter states that when Jenkins was searched and the money taken, several persons were present, as follows:
    “It is said that several members of the board of public safety were present at the time, and Officer Turnbull was there and helped to search.” And yet he made no effort at all to reach either of those parties — parties that were said to be present. Several members of the board of public .safety, and another officer present at the time the money was taken, and who, the evidence showed, saw the money laid out upon the table and put into an envelope, and it was twelve dollars and some cents. The evidence, therefore, shows cleai-ly and conclusively that he did not use reasonable diligence in ascertaining, before publishing this article, the truth of Jenkins’ statement; and therefore the publication was in no sense shown to have been privileged. ”

      In Post Publishing Go. v. Moloney, supra, pages 84, 87, it is said:
    “Publications having a qualified privilege are more numerous, and are those where the privilege arises out of the circumstances of the publication. Good faith in the publication and the exercise of reasonable diligence to ascertain the truth of its statements are essential to the privilege, which is said to be qualified because the plaintiff may recover, if actual malice be shown, notwithstanding the existence of the circumstances which would otherwise malee the publication a privileged one.
    ‘ ‘ It was proven on the trial, that the plaintiff was a policeman of Cincinnati at the time of the publication, and had been for a long time prior thereto; that he had never been in the workhouse, nor charged with any crime, or misconduct; and that his general reputation was good. The evidence also tended to prove that the truth could have been easily ascertained by the employe of the defendant who wrote the article, upon proper inquiry, and that he had information of the facts before the article was published. ’ ’
    And that doctrine applies here. This reporter could easily have ascertained the truth by inquiring of these members of the board of public safety, and of Turnbull, who were present when the man was searched, and the money taken out and laid upon the table. And that important element in this case the court eliminated entirely in its charge to the jury.
    For the reasons stated, and because the verdict is clearly against the weight of the evidence, the judgment is reversed and cause remanded.

      W. II. Spence, for plaintiff in error.

      J. II. Brookes and R. G. Thompson, for defendant in error.


source: Caselaw Access Project

license: Public Domain

text:
    TAKING A MORTGAGE OUT OF THE STATUTE OF LIMITATIONS.
    [Circuit Court of Cuyahoga County.]
    Edward David, Administrator of the Estate of John W. Morgan, Deceased, v. Caroline E. Fauble et al.
    Decided, February 4, 1907.

      Mortgage — Statute of Limitations — Not Barred, but Mortgage Taken Out of the Statute — By Acknowledgment of in Subsequent Mortgage — Foreclosiore—Restriction of Defense of Statute of Lvmita- ■ tions to Us Spirit.

    1. A recital in a mortgage that it is “subject to” a prior mortgage between the same parties, and upon the same premises, is a sufficient “acknowledgment” within the provision of Section 4992, Revised Statutes of Ohio, to take said prior mortgage out of the operation of the statute, of limitations.
    2. There may be a foreclosure of a mortgage taken out of the operation of the statute of limitations by a written acknowledgment of the mortgage signed by the mortgagor, notwithstanding an action on the note secured by said mortgage may be barred by said statute.
    • Winch, J.; Marvin, J., and Henry, J., concur.
    'Appeal by defendant, Caroline E. Fauble.
    This is an action to foreclose two mortgages upon the same premises, both given by the defendant, Caroline E. Fauble, and both now held by the administrator of the estate of John W. Morgan, deceased.
    The petition has two causes of action.
    The first cause of action sets up a mortgage given February 17, 1871, by Caroline E. Fauble, her husband, Michael J. Fauble, joining with her, to William S. Jones, to secure a note for $300 of said date, due in three years, given by her husband, Michael J. Fauble, to said Jones. It recites that said Jones duly assigned said, note and mortgage to said John W. Morgan on October 10, 1883, and that no payments were ever made upon said note except the first six months’ interest. This mortgage was duly recorded February 20, 1871, in Yol. 182, page 539 of Cuyahoga county records. It further recites that on January 30, 1893, said Caroline E. Fauble duly executed and delivered to said John W. Morgan another mortgage of said premises to secure her note of said date for the sum of $500, payable to said Morgan five years after date, and that in this second mortgage is contained the following recital:
    “This conveyance is made subject to a mortgage executed by Caroline E. Fauble and Michael J. .Fauble to William S. Jones, for the sum of $300, and recorded February 20, 1871, in Yol182, page 539 of Cuyahoga county records. ’ ’
    Reliance is had upon this recital in the second mortgage to remove the bar of the statute of limitations from the first mortgage.
    To this first cause-of action a demurrer was filed.
    The second mortgage is set .up in the second cause of action in which it is admitted, however, that the note secured by said mortgage has been lost and can not be found.
    • The defense to this mortgage is that said Caroline E. Fauble was the sister of John W. Morgan and that he forgave her her debt and destroyed said note before his death.
    As to the demurrer to the first cause of action:
    Manifestly the note recorded by the first mortgage is barred by the limitation of the statute, which is fifteen years. The mortgage, also, is barred by the same statute, unless the recital in the second mortgage is an “acknowledgment” thereof within the purview of Section 4992, Revised Statutes, so as to authorize the bringing of an action to foreclose said mortgage within fifteen years from the date of said second mortgage, which was January 30, 1893.
    The wording of this section of the statutes was slightly changed upon the adoption of the revision of the statutes, June 20, 1879, but, under the facts in this case, -that is of no consequence. True, the mortgage having been given when the old statute was in force, that statute would apply until the limitations therein provided had run out, which was in 1889 (Herseley v. Billingsley, 19 O. S., 413). But the fifteen years having expired before the acknowledgment or new promise was made, the statute then in force applies (Brooks v. Otis, 2 O. D., Rep., 355).
    It is claimed that the words used in the recital in the second mortgage do not amount to an acknowledgment of the former mortgage. In the recital it is said that the second mortgage is made “subject to” the former mortgage. We are inclined to think that this clause clearly recognizes that the former mortgage is existing and that the mortgagor is willing to discharge it. Bissell v. Jauclon, 16 0. S., 498.
    Such was the opinion of the Supreme Court of Iowa in Palmer v. Butler, 36 Iowa, 576, a ease very much like this and one that has been cited with approval by all the standard text-books on limitations and mortgages.
    The contention of counsel for defendant that though ah acknowledgment of the mortgage may take it out of the statute, still there can be no foreclosure of it, because the note which it secures is barred, is not maintainable.
    It'is claimed that the case of Kerr v. Lyclecleer, 51 0. S., 240, is authority for this contention, and general language used in the concluding paragraph of the opinion in said case would seem to warrant the claim. But the syllabus is carefully limited, and reads as follows:
    “A mortgage is a specialty, and an action for its foreclosure and sale of the premises comes within the provisions of Section 4980, Revised Statutes, and the period of limitation is fifteen years, unless extended by virtue of Section 4992, Revised Statutes

    On page 254 of the opinion the court also says:
    “A mortgage may be made to secure an account, and an action on account may be barred in six years, while an action on the mortgage would not be barred short of fifteen years.”
    The court also says (page 253):
    “The case of Fisher v. Mossman, 11 Ohio St., 42, correctly holds that the bar of the note, or other instrument secured by mortgage, does not necessarily bar an action on the mortgage.”
    The latter case quoted with approval from the leading case of Belknap v. Gleason, 11 Conn., 160, to the effect that “where a security for a debt is a lien on property, personal or real, that lien is not impaired in consequence of the debt being barred by the statute of limitations.”
    So we conclude that though the remedy on the note is gone, the right remains, the debt is not paid, and the remedy on the mortgage still exists, being extended by the acknowledgment.
    Speaking generally of the defense of the statute of limitations, we quote from Bradfield v. Hale, 67 O. S., 316, 325:
    “While such a defense is not received with disfavor, and is regarded as one of merit, it has not yet become a special favorite of the law so as to justify extending it beyond the letter and spirit of its enactment.”
    Ats to the second cause of action:
    The testimony on this subject was deficient in two particulars—
    It is not at all certain- that the note was destroyed before John W. Morgan’s death. All we know is that it can not now be found. After his death his papers passed through the hands of two persons before they came to the hands of the administrator. One of these persons was an imbecile relative of the defendant and the deceased. The note might have been lost after Mr. Morgan’s death.
    Again the testimony relied upon to prove a gift is too general. It is said that the deceased previous to his death repeatedly said that he did not want to leave any “debts” against his sister, the defendant; that she would have nothing to pay after his death, etc'. ■
    The slight presumption arising from such statements that he destroyed the note in pursuance of his promise to hold no claims against her is rebutted by the finding of the note secured by the first mortgage. To carry out his general promises, if they amount to promises, he should have destroyed both notes.
    The demurrer to the first cause of action is overruled and judgment is rendered in favor of the plaintiff on both causes of action:

      Edward David, J. G. Heald, for plaintiff,

      0. F. Morgan., for defendant,


text:
    FAILURE OF JUSTICE TO RENDER JUDGMENT IMMEDIATELY ON RETURN OF VERDICT.
    [Circuit Court of Trumbull County.]
    C. C. Sigler v. Jesse K. Shaffer.
    Decided, October, 1906.

      Justice of the Peace — Judgment by, Absolutely Void — When not Entered on Verdict Immediately — Construction of Section 6579— Parol Evidence■ — Attachment—Jurisdiction Lost — Discontinuance of Action — Injunction.
    1. Where the docket of a justice of the peace shows that judgment was rendered ten days after the return of the verdict by the jury, parol evidence is not admissible to show that the judgment in fact was rendered immediately upon the return of the verdict.
    2. Where a justice of the peace fails to render judgment until ten days after the return of a verdict by a jury, such failure works a discontinuance of the action; the judgment so rendered by the justice is absolutely void, and a court of equity will enjoin any further proceedings upon such judgment.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    This action is before us on appeal. Defendant, Jesse K. Shaffer,' brought suit before a justice of the peace against the plaintiff. The action was tried to a jury, which,- on the 13th day of June, 1904, returned a verdict in favor of Shaffer for the sum'of $27.75. On the 23d day-of June the justice entered judgment upon the verdict on his docket, reciting that on that date he rendered judgment upon the verdict, against Sigler, for the amount of the verdict and costs. Execution was issued up.on this judgment and this action was commenced to restrain Shaffer from enforcing the execution against plaintiff’s property, and that he be perpetually enjoined from making any claim against him upon the judgment.
    The theory of counsel for plaintiff is that judgment not having been rendered by the justice immediately upon the return of the verdict by the jury, that the justice lost control of the case, and the judgment is a nullity. In order for the plaintiff to succeed in the action that theory must be maintained. Therefore, is the judgment of the justice absolutely void as claimed? Evidence was received upon the trial and taken under advisement tending to show that the justice did in fact declare that he entered judgment upon the verdict immediately upon the return of the jury.
    The first cpiestion, therefore, that meets us is: Was such evidence competent? We now think it was not and reject it. It will be observed that the justice’s docket shows that the judgment was rendered, not entered, upon June 23d, and to admit this evidence is to permit the entry upon his docket to be directly contradicted. It is not a case where there is no entry at all; possibly in such case parol evidence might be admissible to show what was done, in order to support the judgment. That question we do not decide, for in this case the docket is complete, and shows, as we have said, that the judgment was rendered on the 23d, and that the verdict was returned on the 13th.
    The next and important question is: What is the effect of the justice withholding his judgment for ten days? Does it make the judgment absolutely void, or is it only voidable by reason of irregularity, the remedy being a proceeding in error or by appeal to common pleas court.
    Section 6579 of the Revised Statutes provides:
    “Upon a verdict the justice must immediately render judgment accordingly. When the trial is by the justice, judgment must be entered immediately after the close of the trial, if the defendant has been arrested or his property attached; in other cases, it must be entered at the close of the trial, or if the justice then desire further time to consider, on or by the fourth day thereafter, both days inclusive.”
    Justices of the peace derive «all their power from the statutes, and the language of the statute is clear, specific and peremptory air'd would seem to preclude the justice from rendering judgment at any time other than that provided by the statute.
    The ease of Robinson v. Kious, 4 O. S., 593, is difficult of reconciliation upon this theory, but is also probably as difficult of reconciliation with subsequent decisions. The syllabus is:
    “Section 107 of the justices’ code provides that, ‘Upon.a verdict the justice must immediately render judgment ae'cordingly. ’ This provision may not make a judgment rendered upon a subsequent day absolutely void, but it makes it irregular, and for such irregularity, when not waived, it is reversible.”
    If you take the language of the syllabus literally, it no doubt sustains the proposition that the judgment is not void, but voidable only, and the remedy of the aggrieved party would be by error. It will, however, be observed that 'the question we have did not directly arise in that case. The question there was could the successful party by failing to pay the jury fee prevent a judgment and thereby compel a dismissal of the case for want of. further jurisdiction.
    In the ease of Dunlap v. Robinson, Administrator, 12 O. S., 530, it is held in the third proposition of the syllabus-.
    “Where a justice of the peace fails to render judgment or take any ether action, for a period of ten months, upon the verdict of a jury rendered in a cause upon trial before him, such neglect of duty, on the part of the justice, works a discontinuance of the action, and such verdict, without judgment, will not constitute a bar to a subsequent suit on the same cause of action.”
    In the opinion after referring to Robinson v. Kious, 4 O. S. R., 593, it is said:
    “A justice of the peace can riot by neglecting or refusing to enter judgment within the time required by statute, keep an action indefinitely pending before himself. When his power to determine the controversy by a valid judgment ceases, his jurisdiction ends. Ilis power of adjudication is derived from the statute, and if not exercised within the time allowed by law, it is clearly lost; and the cause is no longer pending before him. The legal effect of such a failure in duty, is a discontinuance of the action. So jurisdiction may be lost by an adjournment of the suit without consent of parties, for a time longer than the statute permits. Such unauthorized adjournment or other neglect of duty by the justice, which prevents a hearing and determination of the suit within the proper time,' it has been repeatedly lie.ld works a discontinuance of the action. 2 Johns, 192; 5. Johns, 353; 13 Johns, 469; 1 Cowen, 245.”
    Sutliff, C. J., and Brinkerhoff, J., concurred with Scott, J., who rendered the opinion, in the third proposition of the syllabus, while Peck and Gholson, JJ,, dissented.

      It must be conceded that it is difficult to uphold this decision without overruling Robinson v. Kious, supra.

    In the ease of Eaton v. French, 23 O. S. R., 560, it is said:
    “Section 107 of the justices’ act provides, that when the trial is by the justice, judgment ‘must be entered either at the close of the trial, or if the justice then desire further time to consider, on or by the fourth day thereafter, both days inclusive.1 This language is clear, specific, and peremptory. The power of the justice must be measured by the statute. Accordingly, it was held in Robinson v. Kious, 4 Ohio St., 593, that a judgment rendered by a justice after the time allowed by the statute, was, for that reason, reversible; and the holding in Dunlap v. Robinson, 12 Ohio St., 530, would warrant the conclusion that such delay works a discontinuance of the action.”
    From these cases, taken together, and especially from the language of the statute, we are of opinion that the failure of the justice to immediately render judgment upon the return of the verdict by the jury worked a discontinuance of'thé action; that he thereafter had no authority to render and enter the judgment and that the same' is absolutely void.
    A decree will be entered enjoining the defendant from taking any further proceedings upon the execution he caused to be issued, and from causing any further proceedings to be taken upon the pretended judgment. Defendant to pay costs.

      W. B. Floran and T. I. Gillmer, for plaintiff.

      E. B. Leonard, for defendant.


text:
    COMMITMENT'S FOR. SAFE KEEPING.
    [Circuit Court of Summit County.]
    John E. Washer et al v. Harry Iler.

    Decided, October, 1905.

      Criminal Law — Adjournment of Examination tty Mayor or Magistrate —Commitment in Meantime for Safe Keeping — Mayor must Keep Within Ilis Jurisdiction at His Peril — Section 7143.
    1. Upon the adjournment of the examination of one accused of crime, as provided in Section 7143, Revised Statutes of Ohio, it is unlawful for the magistrate to commit the accused for safe-keeping for more than four days, or to the city prison, instead of the county jail, unless the former be designated as the place of confinement by the magistrate in a written order.
    2. The mayor of a city is equally liable with the chief of police and the keeper of the city prison for false imprisonment, where the mayor, contrary to the provisions of Section 7143, Revised Statutes of Ohio, orders the accused to be confined in the city prison for more than four days, without designating said prison as the place of confinement in a written order, and the chief of police orders the keeper of the city prison to carry out said order and the latter confines the accused pursuant to said unlawful order.
    Winch, J.; Marvin, J., and Henry, J., concur.
    Error to tbe Court of Common Pleas of Summit County.
    Plaintiffs in error are the mayor of Akron, its chief of police and the keeper of the city prison, against whom defendant in error recovered a judgment for false imprisonment, from which judgment error is prosecuted to this court, the only error relied upon being that the petition does not state a cause of action.
    It appears that Her was arrested for cutting with intent to wound ancl taken before the mayor for examination. The may- or continued the hearing for seven days, and verbally ordered Her confined in the city prison for that time, but made out •no mittimus or other order for his detention therein. The chief of police ordered the prison keeper to carry out the order of 'the mayor and Iler was confined for five days until he was released on a writ of habeas corpus.

      Her claims that his confinement was unlawful and in violation of Section 7143, Revised Statutes, in two respects: First, because he was committed and confined for more than four days; and, second, because he was detained in a place other than the jail of the county, to-wit, the city prison, without the written order of the mayor designating that place of confinement.
    It must be conceded that for these reasons the confinement of Her was unlawful; and it must be 'further conceded that all three of the plaintiffs in error were concerned in the false imprisonment and all equally liable to respond in damages therefor, under the decision in the ease of Leger v. Warren, 62 O. S., 500, unless the'mayor alone may shield himself from liability by a claim which he makes that he erred only in the exercise of judicial functions, for which he is not answerable. This claim made on behalf of the mayor is not an open question in Ohio. The mayor’s court is one of inferior jurisdiction, and the mayor must keep within his jurisdiction at his peril. Trues-dell v. Combs, 33 O..S., 186; Truman v. Walton, 59 O. S., 517, 529-530.
    Judgment affirmed.

      Rogers, Rowley (& Rockwell, for plaintiffs in error.

      I-Iolloway & Chamberlain, for defendant in error.

       Affirmed by tlie Supreme Court, without report, January 29, 1907,


text:
    COMMON LAW MARRIAGE AND BIGAMY.
    [Circuit Court of Allen County.]
    David F. Bates v. State of Ohio.

    Decided, December 22, 1906.

      Criminal Law — Bigamy—Common Law Marriage not a Basis for Prosecution for — Cohabitation and Aelcnoioledgment of Marriage Relation — Sections 7018, 6384 and 6394.
    Cohabitation and acknowledgment of tbe marriage relation by a man and woman, but without statutory marriage, do not, in Ohio, constitute a valid marriage on which an indictment for bigamy can be founded.
    Hurin, J.; Norris, J., and Donnelly, J., concur.
    • Tbe plaintiff in error was indicted by tbe grand jury of Allen county for bigamy. The indictment is based on his marriage to one Isie Dora Miller, while he had an alleged wife living— one Hazel Ginter Bates. The state, at the trial of the case, relied upon evidence of what is designated as a common-law marriage of the accused with Hazel Ginter.
    This evidence tended to prove that from about the 17th day of December, 1904, to some time in 1906, the accused and Hazel Ginter lived together at intervals, cohabiting together as man and wife; that a child was born to them as a result of this relationship; that their relationship as husband and wife was frequently acknowledged by the accused, who introduced her as his wife to various people; that at his mother’s home she, in his presence, stated that they had been married and that he did not deny it, but thereafter, at his mother’s home, occupied the same bed with Hazel Ginter and otherwise assumed the position of husband; that he rented rooms for housekeeping and bought furniture for housekeeping, stating to the landlord and to the furniture dealer that she was his wife; that when their child was about to be born, he called on several physicians and endeavored to procure their services, stating to at least one of them that it was his wife who was about to be confined; that he was present comforting the woman when the child was born; and it not being born alive, he called in an undertaer and had the child buried, stating to the undertaker that this child was his child and that Hazel was his wife.
    Many letters addressed by him to the woman were introduced, in all of which he used terms of affection and in one of which, dated November 12, 1904, he declares that he hopes that when they meet again they will not have to part until death parts them, and calls upon God to witness his love for her. His letters written after December 17, 1904, the date of his alleged marriage to her, uniformly refer to her parents as Pa and Ma.
    Most of this evidence is not denied by the accused, who frankly admits the essential parts of it. There is no claim by the state that a formal marriage ever occurred between David F. Bates and Hazel Ginter. Nor is there any denial by the accused that shortly after the breaking off of this relationship, David F. Bates was formally married by a minister of the gospel to Isie Dora Miller, Hazel Ginter or Hazel Ginter Bates being still alive; and she was still alive at the time of the trial. On this evidence the accused was found guilty of bigamy and sentenced to the reformatory. From this judgment he prosecutes error to this court.
    While an examination of the bill of exceptions discloses much that was irregular and probably erroneous, and while the motion for a new trial and the petition in error save these questions, we are explicitly asked, by the counsel for the plaintiff in error to disregard all technicalities and to confine our attention to the one question as to whether an indictment for bigamy can be based upon a so-called common-law marriage followed by a marriage to another person in accordance with the statutes of the state. On account of the importance of the principle involved in this case and in the hope that our ■ Supreme Court may once for all establish a rule as to the standing of a so-called common-law marriage in Ohio, we have concluded to confine our attention as requested by counsel to this one question.

      The crime of bigamy is defined by Section 7018, Revised Statutes, as follows: “Whoever, having a husband or wife, marries another, is guilty of bigamy.”
    The statutes of this state, Sections 6384 and 6394 inclusive, define with great precision the requirements of the law as to marriage. These statutes definitely prescribe certain rules and formalities connected with marriage, and limit the persons who may lawfully marry. The persons and officers who may lawfully perform the marriage ceremony, and the limits of their authority are definitely specified; the publication of bans, or the obtaining of a license to marry, are declared to be prerequisites to marriage, and a rigid form of oath is prescribed before such license can be obtained, .which oath includes explicit statements as to age, occupation, residence, place of birth, parentage, preyious condition as to marriage, and other matters connected with the history of each of the parties to the contemplated marriage.
    Certificates of the fact of marriage are required to be filed and recorded and each step thus required to be taken is to be enforced by severe punishments by fines varying from $50 to $1,000, and imprisonment not exceeding six months, which punishments, are extended not only to the parties to the proposed marriage, but to the person who performs the ceremony and the judge who attempts to issue a license not in strict accordance with law.
    It thus appears that the Legislature has by most stringent rules provided for marriage in accordance with law. These requirements are in form mandatory. There is an evident purpose of the Legislature to strictly guard the institution of marriage with such legal requirements as shall effectually protect the contracting parties and all others interested, and shall at the same time safeguard the interest of the state and provide reliable records for future reference.
    But notwithstanding these strict requirements of statute, it is claimed by counsel for the state that there is another form of marriage equally legal; that a marriage consummated in total disregard of the statutes will be equally valid; that a private arrangement called a conunou-law marriage entered into by the parties, without a license from the state, without the publication of bans, without the services of minister or magistrate, without any ceremony whatever, without witnesses to the marriage itself, without any record of the existence of the marriage, without any definite promise of marriage, is just as effectual, just as legal and confers just the same rights upon the parties as a marriage in strict conformity to the statutory requirements which, in positive terms, specify the exact course of procedure requisite to a legal marriage, and impose severe penalties for any violation of the rules prescribed.
    The proposition is a startling one. If this be true, of what use are the statutory requirements? Why punish with fine and imprisonment the minister or magistrate or probate judge who inadvertently omits to do any one of a dozen formal things required by statute to be done, when none of these things are essential to a valid marriage? Why impose upon the contracting parties the expense and labor of filing statements, under oath, regarding ail sorts of statistical matters, and the procuring of a license, and the securing of the services of minister or magistrate, when all these things add nothing to the validity of a contract which they themselves may enter into without any of these formalities and without the embarrassment of witnesses? Why require statistics to be complied or provided for, when, if all these formalities are unnecessary, they will certainly be neglected and the statistics will certainly be incomplete and inaccurate?
    But an examination of'the question discloses the fact that from very early times in England, and for many years in certain states of this union, such marriages without legal formality have for some purposes, been upheld. A common-law marriage, as it is called, is a well known institution and in certain jurisdictions, has a definite standing in law.
    In Ohio such marriages have been by some courts sustained for certain purposes, and, by other courts, their validity has been denied. No definite rule seems so far to have been laid down by the Supreme Court fixing the limits of their legality or invalidity, except possibly in one case to which I will allude later; and it appears by no means easy to discover a rule which will be consistent with all the decisions so far rendered.
    The importance of the subject demands for it the most careful consideration, for upon its decision depend not only the stability of the home and family, which are the very foundation of the state, but the legitimacy of children, the property rights of husband and wife, of children and heirs, as well as the reputation of citzens and their immunity from, or liability to, arrest and imprisonment.
    At the very outset of the discussion we must clearly distinguish between a common-law marriage in the loose, popular use of that term, and a marriage which at common law was actually a marriage, for certain purposes. The mere fact of a man and woman living together in a state of fornication has never constituted a marriage recognized at common law, nor has a public acknowledgment of the relation of husband and wife,' a holding of 'themselves out as husband and wife, accompanied by cohabitation, been ever deemed in itself a valid marriage at common law, although there seems to be a widespread popular notion that this constiutes a valid common-law marriage, and in this country the courts of some states have, gone to great lengths in sustaining such acts as proof of an actual marriage.
    At all periods of the law of England, so far as we have been able to ascertain, there was required to be an actual contract of marriage, an actual agreement' of the parties to live together as husband and wife; and this, too, not as a merely temporary arrangement, but for life. And this contract was required to be actually expressed in words of mutual promise.
    Much controversy has arisen as to whether such promise must, at common law, have been per verba cíe futuro or per verba de praesenti.

    This question was fully discussed by Judge Brinkerhoff in his opinion in the case of Duncan v. Duncan, 10 O. S., 181, and he there, after a review of the authorities, concludes that notwithstanding clic.ta by judges in many cases, and even though such authorities as Kent and G-reenleaf may be quoted to the contrary, no real authority can be found for the doctrine that cohabitation, following words of futuro promise merely, will constitute a marriage. And he shows that the authorities cited by Kent and G-reenleaf to the contrary do not in fact sustain the doctrine of the text. He quotes Blaekstone (.1 Com., 439) to show that such a contract was deemed a valid marriage for many purposes and the parties might be compelled in the spiritual courts to celebrate it in facie ecclesiae.

    Such a promise (i. e., per verba de futuro), under the common law of England, just as under our law to-day, was a sufficient basis for an action for breach of promise of marriage and it seems that in England'it was also a recognized basis for an action for specific performance of marriage.
    But as to a promise per verba de praesenti there has been much more diversity of judicial opinion. In the case just cited, Judge Brinkerhoff maintains that in England even such a promise in the leading case of the Queen v. Millis (10 Clark and Finnelly’s Rep., 534), was held (though by a divided court) not to have'sustained the claim of a valid marriage, and that that case declares the rule of the common law. That celebrated case arose over a marriage in due form before a Presbyterian clergyman in Ireland, and a subsequent marriage by the husband to another woman, while his first wife still lived, the second marriage being performed by a clergyman of the Church of England, it being then the law that only clergymen of the established church could perform the marriage ceremony. The first marriage, not having been performed by a clergyman of the established church, but by a dissenter, was held invalid, although the parties actually pledged themselves to each other by words of present promise in good faith, believing that this was a valid marriage.
    But in the case of Carmichael v. The Slate, 12 O. S., 553, which was apparently a case exactly parallel to the case of The Queen v. Millis, the authority of that celebrated case is repudiated by our Supreme Court, although its authority in England is fully recognized as finally stating the common law.
    Regarding the conclusion of Judge Gholson, who read the opinion in the Carmichael ease, it must be said with all due deference: 1st, That the opinion thus enunciated was an obiter

      dictum, not necessarily involved in the case then at issue which only related to the question whether the absence of authority in the officiating clergyman or magistrate, to solemnize a marriage, otherwise legal, renders such marriage void. The broad question of the validity of a marriage in total disregard of the statutory law was not involved in that case; 2d, That as that case was decided before the adoption, of the rule making the syllabus the law of the case, we are permitted to look to the actual facts of that case and to disregard the strict rule of its syllabus except in so far as it applies to the case then decided; 3d, That an examination of the reasoning of the learned judge, who rendered that opinion, makes it plain that his opinion is based, not on any authority in England or elsewhere, but upon his conception of what ought to be the law applicable to such a case. In fact, he reaches his conclusions after a somewhat painstaking effort to show that the English authorities suport an exactly contrary view.
    In a careful review of the history of the case of The Queen v. Millis and of the law of England prior to the rendering of that opinion, he shows conclusively that not only in that case was it declared that a mere private contract of marriage “never constituted a full and complete marriage in itself unless made m the presence and with the intervention of a minister in holy orders; and that-by the common law of England it was essential to the constitution of a full and complete marriage, that there must be some religious solemnity; that both modes of obligation should exist together, the civil and religious”; but that such was and had always been the law of England, not only at common law but by the ecclesiastical law, which had remained unchanged from the time of The Council of Winchester in 1076, which had by its decree declared that a marriage, without the benediction of the priest, should not be a legitimate marriage and that other marriages should be deemed fornication.
    lie shows also that by the civil and canon law since the Conncil of Trent in 1545, though as he says, the authority of that council was never admitted in England, such marriages have not been valid. Plaving thus shown that neither by the .common law of England, nor by the ecclesiastical law, were such private marriages valid, he proceeds to disregard these precedents and bases his opinion on the fact that in this country church and state are separated.
    “The Legislature,” he says, “must have proceeded on the idea of the entire' inapplicability of any such rule of the common law in this state where ecclesiastical authority binds only those who render a voluntary submission, or, as is more probable, the rule of the common law in the mind of the Legislature was that shown by the certainly prevalent opinion in England prior to the decision in Queen v. Milbis and almost universally accepted in this country,” and he concludes by saying, “we can not construe our statute as restrictive and prohibitory, as invalidating what by natural law, the general law of society, independent of statutory prohibition, would be regarded as a valid marriage.”
    If the concluding sentence had been confined by the learned-judge to1 the case which he was then discussing, a marriage duly performed in good faith by a person supposed by the contracting parties to be duly authorized to perform the ceremony, we would heartily concur; but if intended, as the syllabus apparently indicates, to apply to all- private and secret marriages made in total disregard of the statutory law, the far-reaching consequences of such a holding demand for it the most careful consideration.
    Nor does his first reason for disregarding the English authorities appear valid in view of the fact that the Legislature, by expressly authorizing a marriage to be performed by a civil magistrate as well as by a clergyman, plainly recognizes the separation of church and state in this country and by statute prescribes rules applicable to both magistrate and clergyman, to both a civil and religious ceremony, merely requiring that one or the other shall be used.
    Ordinarily this court would feel bound, of course, to follow a decision of the Supreme Court, but a dictum of that court in a case not involving the exact question before us, and especially when avowedly opposed to the recognized authorities of common law, seems at least to require careful consideration before it can be applied to the case at bar, where the facts present no analogy to those of the case, in which such dictum was expressed.
    The Carmichael case Avas decided forty-five years ago. In that time there has been a vast change in the condition of society. It is a matter of common knowledge that in these latter days the stability of the family is threatened as never before by loose ideas of marriage. The family is the foundation of the state. Marriage is the basis upon which the family rests.
    It seems to us that the importance of the question is such as to demand an independent consideration, and in the hope that the Supreme Court Avill have an opportunity of finally passing upon this question and settling the laAV of the state, we venture to disregard the decision of Carmichael v. The Stale, in so far as it seems to us to extend beyond the actual facts of that case and to lay doAvn a rule on matters not involved therein.
    In the case at bar there was no attempt on the part of David F. Bates and Hazel Gintor to comply Avith the law. It is plain from the evidence that they ignored the law, deliberately ignored it. Nor was there any promise of marriage, either present or future, proven by the state. Apparently the parties did not rely upon any promise of marriage.
    The defendant admits a promise to marry her in the future, though this appears not to have been given as a prior inducement to the relations sustained by them, but nowhere in the bill of exceptions is there any evidence of an actual promise in praesenii. The state relied absolutely upon evidence as to their living together claiming to be husband and wife, and acknowledgments of that relation by both parties, and upon this testimony is based the claim of a common-law marriage and consequent bigamy.
    And here we are met with numerous decisions to the effect that such evidence is admissible to prove a marriage.
    In divorce proceedings the statute, Section 5698, provides that—
    “Proof of cohabitation and reputation of the marriage of the parties shall be competent testimony to prove such marriage and may be, Avithin the discretion of the court, sufficient evidence thereof.”

      But this was held in Houpk v. Houpt, 5 0., 539, to refer only to the marriage sought to be dissolved in the divorce proceeding, and not applicable to evidence of a former marriage assigned as a ground for the divorce.
    In the early case of Wolverkon v. The Stale of Ohio, 16 0., 173, testimony as to the admissions of a former marriage were offered to convict the accused of bigamy and the court admitted such testimony and was sustained by the Supreme Court, but that court tool?; occasion to say that such admissions should not be relied bn, and hold by the jury, when unsupported, sufficient to work a conviction. See, also, Sianglein v. The Stale, 17 0. S., 453.
    In civil cases such admissions may often establish a prima facie case, and are always admissible in evidence as tending to prove the fact of a disputed marriage, and they have been held in some civil cases to establish an estoppel where undenied.
    See Edgar v. Richardson, 33 0. S., 593; Bruner v. Briggs, 39 0. S., 478; and such evidence is generally admitted in other states in civil cases. See Taylor v. Siuett, 3 La., 33 (22 Am. Dec., 156).
    In New York prior to the passage of Chapter 339 of the laws of 1901, marriage in civil cases could be entirely proved by cohabitation of the parties, acknowledgment, declarations, conduct, repute and the like. Gall v. Gall, 114 N. Y., 109 (21 N. E. Rep. 106); Tracy v. Frey, 88 N. Y. Supp., 874 (95 App. Div. 579); The Matter of Schmidt, 42 Mise., 463 (87 N. Y. Supp. 428). See, also, 15 N. Y. Annotated Cases, and extended note.
    In criminal eases it was apparently necessary to have direct proof of some marriage ceremony or agreement, but evidence of reputation in the community and of holding out or introduction as man and wife could be introduced to corroborate direct proof of a ceremonial marriage. Hayes v. People, 25 N. Y., 390 (82 Am. Dec. 364) People v. Wentworth, 4 N. Y. Crim. Rep,., 207.
    The New York law of 1901 added an additional way of solemnizing marriage by permitting a written contract to be signed by both parties and subscribed by two witnesses, in the same manner provided for the acknowledgment of a conveyance of real estate, which was to be recorded; and that such contract should be filed with the clerk of the town or city in which the marriage is solemnized within six months.
    In Massachusetts and Connecticut it seems that in bigamy cases there must be proof of an actual marriage. Commonwealth v. Littlejohn, 15 Mass., 163; Boswell’s case, 6 Conn., 446.
    In Michigan, no civil or religious ceremony is required, provided the parties actually agree together to take each other as husband and wife and do so live together, yet in an action for criminal conversation an actual marriage (of some kind) must be proved, and it was said by Judge Cooley in Hutchins v. Kimmell. 31 Mich., 126; 18 Am. Rep., 164 — “Such evidence of cohabitation and reputation as would be sufficient in other civil cases will not suffice -where it is sought to fix upon the woman a charge of adultery.” ,
    Prom all of these cases and from many more which we have examined, the rule seems to be well established that in both civil and criminal cases evidence of admissions by the accused of the fact of a marriage having been performed, and evidence that the parties have lived together as husband and wife will always be admissible, and its weight is a matter to be determined by the jury from the circumstances of the case under proper instructions from the court, but that, in a criminal case, such evidence when supported by direct evidence of an actual marriage is not, in Ohio at least, nor in most other states, sufficient to support' a conviction.
    There must be in a criminal case direct evidence sufficient to establish beyond a reasonable doubt the fact that a marriage— an actual, legal marriage — has been in fact consummated or at least — as in the Carmichael case — has been attempted to be performed.
    The authorities therefore that are cited by counsel to sustain the contention of the state, that marriage may be proved by evidence of cohabitation and admissions of marriage by the accused do not sustain this contention, but only go so far as to hold such evidence competent to. corroborate direct evidence of an actual legal marriage.
    But the cptestion still remains, what is this actual marriage in 'Ohio of -which direct evidence must be given. The statutes determine one form of legal marriage. The state claims that another form — a so-called common-law marriage1 — is legal.
    Our statutes are silent as to any authority for such a marriage. Our Supreme Court has not, as we have found, authoritatively sanctioned such a marriage.
    In other states the rule varies. Such marriages are sustained by statutes in some of the states, notably so in Nebraska. In some states the courts • have upheld such marriages, even when statutes p.ositively prescribe the forms of legal marriage. In the dase of Cartwright v. McGown, 121 111., 388 (2 Am. St., 105), (12 N. E. Rep. 737) it is held that—
    “Marriage is a civil contract made in due form, by which a man and woman agree to take each other for husband and wife during their joint lives, unless it is annulled by law, and to discharge toward each other the duties imposed by law upon such relation. No solemnization or other formality, apart from the agreement itself, is necessary, nor need there be any witnesses. ’ ’
    And in the case of Dyer v. Brannoclc, 66 Mo., 391; 27 Am. Rep., 339, it is held that—
    “In the absence of statutory provisions pronouncing such an agreement void an agreement between parties to live together as husband and wife followed by an actual cohabitation is valid without any magisterial or clerical solemnization.”
    And such it seems is the rxile in Utah.
    While some states, e. g., New Hampshire (see Dtmibarton v. Franlclin, 19 N. IT., 256), hold the contrary doctrine, there seems to be a decided tendency toward the theory that a .so-called common-law marriage is legal. But in nearly all of these states the marriage thus recognized as a common-law marriage is not a mere cohabitation, but an actual agreement, per verba de praesenii to live together — followed by an actual living together —as husband and wife; and this, too, not as a temporary arrangement, but for life.
    One reason assigned by Judge G-holson for upholding marriages in apparent violation of the statutes is, that, notwithstanding any statute on the subject a common-law marriage is good, unless the statute contains express words of nullity.

      But if our understanding of the common law rule as to marriage is correct, such marriage was never good, in England, except for limited purposes and has never been adopted in Ohio and therefore the supposed historic reason for this rule as to the interpretation of statutes fails.
    The marriage statutes of Ohio are in form mandatory. We have found no rule of common law or ecclesiastical law that would justify us in supposing that the Legislature meant anything else than what the statute so expressly declares. We know no rule of statutory construction that justifies us in reading into 'the statute a negation of its express terms. The repeated provisions for severe penalties on all those who neglect or fail to follow the precise formalities of the law as to marriage, seem to negative any idea that the Legislature ever intended or had in mind any other legal form of marriage.
    It would seem a strange anomaly if a civil contract leasing real estate, or agreeing to answer for the debt of another or an agreement made upon consideration of marriage, is to be held void unless in writing signed by the parties to the agreement; yet marriage itself, the most sacred and momentous contract in its consequences which it is possible for man to enter into, may be made by merely verbal promises or even without such promises.
    It is strange if our laws, in order to insure the stability of land titles, require a record of every deed and instrument conveying title, yet require (by implication) no record of the title on which the family name and honor, the property rights of wife and children-, and the very legitimacy of the children themselves depends.
    It is said that if common-law marriages are not upheld innocent girls will suffer in the loss of their good name, and the case at bar is cited in proof of this proposition.
    We do not so view it. Hazel Ginter by all the evidence, in this case knew that she was not legally married, and proved it by her repeated statements to David Bates’ mother, as an excuse for living with him, that she hacl been married at Celina, at Lima and in Indiana (he.r stories varying from time to time), and that she had a license to, verify her statements. There can be no doubt that she regarded a license and some form of official action as essential to a legal marriage and pretended to have such license in order to support a claim which she knew to be false.
    But common-law marriages, however we are to understand that term, are not yet so common as to be recognized anywhere a.s anything but exceptional. Our marriage laws are, and have always been, well known and understood, and a legitimate ceremonial marriage, either civil or religious, is the universal desire of all decent people contemplating matrimony.
    To break down the bars established by the statute, to make possible the substitution of loose and uncertain requirements for the time honored, fixed forms of the law is to open the way to all the forms of fraud and crime with which designing men may seek to destroy womanly virtue and with which unscrupulous women may seek to appropriate the good name and wealth of men to whom in life they were perhaps perfect strangers.
    If a private arrangement without any formalities, and without any writing or any record or any witnesses., is to be upheld as a civil contract; if secret marriages, known only to the parties themselves and participated in by none other are to be authorized; if the state is to have no right to protect its own interests, it is but one step further to the practice, now publicly advocated by certain notorious criminals and others, of having marriages on probation, the relation to cease at the will of cither of the parties.
    If such is to be the law of Ohio, some other court must be the first to proclaim it. The judgment of the court of common pleas will be reversed, and the cause remanded for further proceedings.

      Klinger át Meares l, for plaintiff in error.

      Benjamin F. Welly, Prosecuting attorney, for defendant in error.

       Reversing State v. Bates, 4 N. P.-N. S., 502.


text:
    REFERENCE BY COURT TO FAILURE OF DEFENDANT TO TESTIFY.
    [Circuit Court of Columbiana County.]
    Clarence Tate and Thomas Taylor v. The State of Ohio.
    Decided, November, 1906.

      Criminal Law — Charge of Court — Reference of Court to Failure of Defendant to Testify not Error in Ohio — Section 7289.
    It is not error for the court, sui sponte, to charge the jury that: “The fact that the defendant has not gone upon the witness stand and testified, does not excuse the state from the full measure of proof to which I have called your attention, for it is the privilege of the defendant either to testify in his own behalf or to decline to do so, resting his denial of the offense solely upon his plea of ‘Not Guilty.’ ”
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Error to Columbiana Common Pleas Court.
    Plaintiffs in error, Clarence Tate and Thomas Taylor, were tried and convicted of the crime of arson, and sentenced to the penitentiary.
    A number of errors are assigned as ground for the reversal of the judgment below, but the one mainly relied upon by counsel, and indeed the only one that could be considered important, is that the trial judge in his charge to the jury, without any request so to do, referred to the provisions of Section 7289 of the Revised Statutes, respecting the accused becoming a witness in his own behalf. The section reads as follows:
    “On the trial of all indictments, complaints, and other proceedings, against a person charged with the commission of an offense, the person so charged shall, at his own request, but not otherwise, be a competent witness; but his neglect or refusal to testify shall not create any presumption against him, nor shall any reference be made to, nor any comment made upon, such neglect or refusal.”
    If the provisions of the statutes are to be taken in their strict literal sense, then the failure of an accused to he a witness in his own behalf should not be referred to at all. The language of the statute could not be made more definite and imperative:
    “But his neglect or refusal to testify shall not create any presumption against him, nor shall any reference be made to, nor any comment be made upon, such neglect or refusal.”
    This prohibition of the statute is clearly as applicable to the trial judge as the prosecuting officer, and such was the holding-in the case of Buloff v. The People, 45 N. Y., 213, under the statute of that state, which is not nearly so strong as our own. The remarks of Mr. Judge Allen in his opinion are so applicable that we quote them at some length:
    “A question is presented by the exception to the comments of the judge upon the fact that the prisoner had not availed himself of tire privilege of being sworn and giving evidence in his own behalf. By statute (Chap, 678 of the Laws of 1869) persons upon trial for crime may, at their own request, but not otherwise, be deemed competent witnesses.. The act may be regarded as of doubtful propriety, and many regard it as unwise, and as subjecting a person on trial to a severe if not a cruel test. If sworn his testimony will be treated as of but little value, will be subjected to those tests which detract from the weight of evidence given under Deculiar inducements to pervert the truth when the truth would be unfavorable, and he will, under the laws as now understood and interpreted, be subjected to the cross-examination of the prosecuting officer, and made to testify to any and 'all matters relevant to the issue, or his own credibility and character, and under pretense of impeaching him as a witness, all the incidents of his life brought to bear with great force against him. He will be examined under the embarrassments incident to his position, depriving him of his self-possession and necessarily greatly interfering with his capacity to do himself and the truth justice, if he is really desirous to speak the. truth. These embarrassments will more sei-iously affect the innocent than the guilty and hardened in crime. Discreet counsel will hesitate before advising a client charged with high crimes to be a witness for himself, and under all the disadvantages surrounding him. If, with this statute in force, the fact that he is not sworn can be used against him, and suspicion be made to assume the form and have the force of evidence, and circumstances, however slightly tending to prove guilt, be made conclusive evidence of the fact, then the individual is morally coerced, although not actually compelled to be a witness against himself. The Constitution, which protects a party accused of crime from being a witness against himself, will be practically abrogated.
    “The Legislature foresaw some of the evils and dangers that might result from the passage of this act, and did what could be done to prevent them by enacting that the neglect or refusal of the accused to testify should not create a presumption against him. Neither the prosecuting officer or the judge has the right to allude to the fact that a person has not availed himself of this statute, and it would be’the duty of the court promptly to interrupt a prosecuting counsel who should so far forget himself and the duties of his office as to attempt to make use of the fact in any way to the prejudice of a person on trial. An allusion by the judge to the fact, unexplained, can not but be prejudicial to a person on trial, and a provision intended for his benefit will prove a trap and a snare. It is an intimation to the jury of the effect upon his mind of the omission of the accused to explain by his own oath, suspicious and doubtful facts and circumstances, as affecting the question of guilt or innocence.”
    In the case of State v. Pearce, 56 Minn., 226 (57 N. W. R., 652) it was held:
    “Where in a criminal trial the defendant neglects or refuses to testify in his own behalf as provided by Gen. St. C. 73, Tit. 1, Sec. 7, the trial court has no right or authority to allude to or comment upon such refusal before the jury, nor to refer to the subject or instruct them as to whether they shall consider such neglect in any manner whatever.”
    In this case the counsel for the accused requested the court to charge the jury:
    “That defendant has not testified in this case can not be taken into consideration by you in determining the guilt or innocence of the defendant, and all referenec thereto-, or inferences therefrom, must be entirely excluded from your minds, and your determination must be based solely upon the evidence introduced and the instructions of the court. ’ ’
    The court refused to give this request, and this was assigned as error.
    Buck, J., in support of the decision of the court, in a very able opinion, shows that to have given the instruction would be in direct conflict with the statute which provides that “the neglect or refusal of the accused to testify shall not create any presumption against him, nor shall such neglect or refusal be alluded to or commented upon by the prosecuting attorney or by the court. * * Indeed the court should not even hint at the existence of such a law by the most remote suggestion, and to do so would be a nullification of the statute.” Many authorities are referred to in the opinion in harmony with the holding of the court.
    Is the law different in Ohio ? We are inclined to think it is, and that in this state it is not error under certain circumstances for the prosecuting officer or the trial judge to refer to the fact that the accused might testify in his own behalf; and this court must be controlled by the decisions in our own court.
    In the case of Calkins v. State, 18 O. S., 366, it was held that where a defendant interrupted the prosecuting attorney during his argument by controverting his statement to the jury, and the prosecuting attorney replied, “You had an opportunity ,to testify in this case and did not do so. ’ ’ And it not appearing that the court was derelict in duty, such reference is not cause for granting a new trial. In the opinion it is said:
    “We suppose a case might occur, in which the misconduct of counsel for the state in disregarding the prohibition of the statute above quoted, and of the court in permitting such disregard, of in failing promptly to rebuke and to arrest it by the exercise of all its authority and power necessary for that purpose, would require the court, in the exercise of a just discretion, and out of due regard to the rights of the prisoner, to award a new trial. But in this case the prisoner seems to have provoked the single hasty retort of counsel, and the court does not appear to have been in any way wanting in duty. ’ ’
    While in this case the remark of the prosecutor was provoked by the accused, yet from the opinion it is apparent that the view taken of the statute was that it was a matter of discretion in the court whether or not a new trial should be granted when reference was made to the prohibition of the statute which is directly opposed to the law as laid down in State v. Pea/rce, supra.

      In the case of George Schneider v. The State of Ohio, 2 C. C., 420, the prosecuting attorney in his argument said of the accused who was convicted of murder in the first degree:
    “Tie admits that he was present when she was killed; of course, he does not say he killed his mother; he did not get on the stand and say he killed her; he did not tell any one that he killed his mother; he says that two robbers killed her, and that he stood by and saw them do it — is that a reasonable story ? ’'
    The court held:
    “This is not such misconduct of the prosecuting attorney as would require the trial court to set aside the verdict and grant a new trial. No statement having been made to the jury, as to the right of the defendant to testify, or any comment made on his refusal to do so, and it not appearing that the defendant was in any way prejudiced thereby, it rests in the sound and legal discretion of the trial court.”
    In the opinion Judge Smith concedes that the use of the- word “stand” by the prosecuting attorney no doubt referred to the witness-stand; and then referring to the case of Calkins v. The State, says:
    ‘ ‘ The effect of this decision is, that to justify the setting aside of a verdict for such cause, there must be a material and substantial infraction of the law, and one which seems to the trial court, or that reviewing its decision, to have prejudicially affected the rights of the defendant.”
    This case was affirmed by the Supreme Court without report. Whether this question was pressed or not we do not know, but it is to be presumed it was.
    Were it not for these two eases decided by our Supreme Court, this court would be inclined to hold, under our statute, as was held in the Minnesota case referred to, that neither the public prosecutor nor the court had any right to refer to the failure of the accused to testify, and that the prohibition of the statute is mandatory and must be strictly complied with. But from these cases we feel to do so would be to hold against what is decided by our own court.
    Whait the trial judge said to the jury in this case was not in any sense unfair to the accused, and if justified in referring to the subject at all, was as favorable to them as it should have been. It was as follows:
    “I desire, however, to remind you, as I have heretofore said in this charge, that you mil not be warranted in returning a verdict of guilty against any one of these defendants unless the evidence produced against such particular defendant convinces your minds, beyond a reasonable doubt, of his guilt; for even though you should find, beyond a reasonable doubt, that one of the defendants had been guilty of the commission of said crime, that fact alone would not warrant you in finding the other defendants guilty unless, as I have heretofore stated, the evidence is such as to convince your minds to a moral certainty of the guilt of each defendant against whom you shall return a verdict of guilty. And I desire to say to you now that the fact that no one of the defendants has gone upon the witness-stand and testified, does not excuse the state from the full measure of proof to which I have called your attention, for it is the privilege of each defendant either to testify in his own' behalf or to decline to do so, resting his denial, of the offense solely upon his plea of not guilty.”
    We should say that the conclusion to which we have come is in line with Sullivan v. Ohio, 9 C. C., 652.
    Judgment of common p.leas court is affirmed.

      Metzger & Smith, W. S. Anderson and J. G. Moore, for plaintiffs in error.

      M. J. McGarry, Prosecuting Attorney, and G. S. Speaker, for defendant in error.