text:
    (First Circuit—Hamilton Co., O., Circuit Court
    Nov. Term, 1888.)
    Before Smith, Swing and Cox, JJ.
    STEPHENSON et al. v. D. Z. SEDAM AND OTHERS.

      Deed of conveyance to parties without the word “heirs” only conveys life estate—

    A deed for land to parties (naming them), “surviving executors of the estate of W. S., dec’d, their successors and assigns forever,” the word “heirs” not being used in connection with the grantees, either in the granting clause, in the habendum clause, or in the covenants, conveys no fee simple, but only an estate for the joint lives of such executors and the life of the survivor of them, and at the death of such survivor, the estate will revert to the grantor if living, and his heirs or assigns, if deceased in fee, free, and discharged from an)- claim arising under such deed.

      Same — The trust relation existing between the executors and the beneficiaries under the will, does not affect other parties—
    No synonym will supply the word “heir” in a deed, and no circumlocution has ever been held to create a fee, except in case of a conveyance in trust. The trustee will take the legal estate in fee, though limited to h3irs, without the word “heirs, ” if the trust which he has to execute be to the cestui que trust andhisheirs. But the trust relation between executors and the beneficiaries under the will, does not affect parties not such beneficiaries.
    Appeal from Court of Common Pleas of Hamilton county.
   Smith, J.

We had thought it probable from what took place in this case after the hearing,that some agreement might be arrived at by the parties themselves, but learning that there is no prospect of this, we state the conclusions at which we have arrived, on the questions presented to us.

The action is one brought by the executors of Stephenson against Sedam, to recover ground rent claimed to be due from him, on a perpetual lease granted by them to him, and to sell the .interest of Sedam therein, to pay the same.

They make parties defendant the wife of Sedam, .and other persons claiming to hold an interest in the premises under him. They allege the execution of this lease to Sedam on January 29, 1880,in due form. That it was also duly executed by Sedam who thereby agreed to pay them as rent therefor $800.00 each year, in quarterly installments of $200.00, for which they were to have the first lien on the property. Sedam was also lo pay all taxes and assessments on the premises. That he has failed to pay several installments of rent when due, and they are still unpaid, and they pray for the sale of said leasehold and improvements to pay the same. Sedam filed an answer and cross-petition. He first denies that the plaintiffs leased the land in question, to him. He says the transaction was simply a loan of money by them,to him. Second, he says,by way of cross-petition, that in January,1880, he was the owner in fee simple of the property, which was then worth at least $80,000.00. It was incumbered to the amount of $12,000.00, which he wished to pay. He applied to plaintiffs for a loan of $12,-300.00. That they agreed to loan him that sum,, at 6-| per cent interest, but to avoid taxes, wanted the papers fixed in the shape of a deed and lease; that he supposed that this was the same as a mortgage, and agreed to it, leaving the form of the papers to be fixed by the executors and their attorney. That they were executed as part of the same transaction, and were simply to secure a loan of that sum with 6-| per cent interest. That he did not know when he executed the papers, that, the lease contained no privilege of purchase. He says he did not convey the property to plaintiffs for $12,-800.00. There was no purchase by them, and no sale by him, He says the plaintiffs had no power to take such a deed. For these reasons he asks that the deed, as such, be cancelled. In his third defense he alleges that at the time of the transaction he was in possession of the premises which then,and ever since he has rented for $2,500.00 per annum. He asks that the arrangement be held simply a mortgage to secure the $12,300.00 and interest, and offers to pay the amount of principal and interest due thereon. Mrs. Sedam also files an answer and cross-petition, setting up several of the same matters stated in the answer of her husband, and alleging that her signature to the deed was obtained by the representations of the agent and attorney of plaintiffs, that it was only a mortgage to secure the,loan of $12,300.00; that she had no knowledge that it purported to convey the property, and she prays that the deed be set aside, on the payment of the debt and interest, as fraudulent as against her.

On these pleadings, (the plaintiffs have stricken out their claim for a personal judgment) and the evidence submitted, the case was heard in the court of common pleas, and a decree entered in favor of the plaintiffs, finding that the deed in question was a valid one, and conveyed an absolute fee simple to the plaintiffs, and that Sedam only had a perpetual lease of said premises as set out therein. — ;and finding the amount due for rent, and that if it were not paid in thirty days, the leasehold should be sold.

From this decree Sedam appealed to the Circuit Court, and the case was heard by us on the same pleadings and the evidence submitted, the defendants having offered evidence tending to show that the allegations of their answers were true, and the defendants, evidence in opposition thereto. After we had arrived at a conclusion as to what was shown by the evidence on this point, we were surprised to find that no reply to either of these answers, or cross-petitions, was ever filed by the plaintiffs. As the execution of the lease was admitted,the defendant sought to avoid the decree asked for, by setting up a parol contract that the transaction was in fact but a mortgage, and not a simple deed and lease, and the wife averred that she was not bound by the deed, and asked its cancellation on the ground that it had been fraudulently procured from her. In the absence of a denial of these facts by plaintiffs, there is much doubt whether it is not an allegation of new matter, and unless, denied to be considered admitted. We, however, state the conclusions' which we have reached from the evidence,looking at the case as if the allegations of these answers and cross-petitions had been denied by a reply.

We think the evidence shows the following state of fact: For twenty years before January 27,1880,Sedam had owned this property in fee simple. It was however encumbered with mortgage liens to the amount of about $9,000.00 or $10,000.00, and the taxes, interest and penalties thereon, were near $2,000.00, and these demands against Sedam were being pressed for payment. The. real estate was worth at least $25,000.00, and perhaps $30,000.00.

Sedam was trying to borrow $12,000.00 to take up these liens, by giving a mortgage upon it, but for some cause, was unable to do so. He employed Mead, a real estate agent and money broker, to try and procure him a loan on the property. Mead notified him after trying to do so, that he had failed, but that he could get the money at a less rate on a ground rent. Sedam authorized him to see if he could, and Mead applied to Mr. Coles,the attorney of plaintiffs. Mr. Coles informed him that plaintiffs would not loan him the money, but that if Sedam could convey the property to the plaintiffs, they would furnish him with $12,800.00 on which they would execute to him a perpetual lease, Se-dam to pay a yearly rental therefor of $800.00 in quarterly installments of $200.00 each, and also to pay the taxes on the property. Sedam agreed to this, and accordingly, on the 27th day of January, 1880, a deed was prepared by Mr. Ooles and signed by Mr. Sedam and then taken by Mr. Coles and Layton, (the business agent of Sedam) to the house of Mrs. Sedam, (she then being parted from her husband) and it was there signed and acknowledged by her— Layton and Coles being the witnesses to the signatures of both, Sedam and wife, and Mr. Coles as Notary Public taking the acknowledgment of both of them thereto. The lease (owing to the absence of one of the plaintiffs) was not executed and acknowledged by plaintiffs and Sedam until January 29, 1880, but the two were delivered at the same time and formed but one transaction, and the $12,300.00 was then paid to Sedam, or as directed by him. Not a word seems to have been said by any of the parties as to the value of the property thus conveyed. We think it probable that' both Sedam and wife at the execution of the papers supposed that it was a transaction more in the nature of a loan than of the conveyance of the property to the plaintiffs absolutely. It would be very strange if they had made so improvident a contract as it appears on its face, if they had fully understood it. That a man of any intelligence would thus convey property worth $25,000.00 to $35,000.00 for a consideration of $12,300.00, even if he was to receive a permanent lease on it, the rental of which was equivalent (saying nothing of the taxes to be paid thereon) to 6-J per cent, on the amount received, is hard to be credited. And yet we are satisfied from the evidence that the transaction is, just as the plaintiffs intended, and understood it was to be, and that these terms were made known to both of the grantors in the deed before they executed it, and-that no misrepresentation of any kind was made to either by the plaintiffs orjlieirjattorney. Sedam, as he says, may have entertained, the idea, that he might pay off the debt some time, but how hejcould so do if he gave the slightest attention to the terms of the two papers executed by him, it is difficult to see. If he had read them, he must have been aware, that neither of them gave to him a privilege of repurchasing the property, at anytime. On the contrary, the most casual examination' ofjthe lease itself (a printed form for the use of these plaintiffs iffjsuch cases) would show on its face, a provision, giving the lessee the privilege of repurchase, in this case erased by red lines drawn across it, but still plainly visible, and in this condition it is accepted by Sedam, and so far as the evidence shows no complaint was ever made by him till the institution of this suit. In this state of the case we think he must be held to have had knowledge tliat the instrument he received was only a conveyance to him of a perpetual leasehold of this property, without any right on his .part, ever to obtain the title again by a re-payment of the $12,-300.00, but that he, his heirs and assigns were entitled to it so long as they performed the stipulations of his contract, and that this, under the lease, was his only interest in the property. In the negotiation between the parties, there does not seem to have been any talk whatever of a repayment of the money and a re-conveyance of the property, and as shown by the evidence of Lay ton, the agent of Sedam, he saw the peculiarity of the transaction and asked his principal if he was entirely satisfied to have it in that shape, and though his attention was thus called to the subject,he took no steps' to have a right to purchase put into the contract.

If therefore the plaintiffs at the time of the execution of this lease to Sedam, had acquired from him a fee simple title in form, he would not be able to say that the evidence we have heard shows'any parol agreement 'between'them and Sedam,that it was to be only a security for a loan; but that the transaction would be just what the pfeintiffs claim it to be.

The claim is made however in this court,for the first time as we understand, that the deed so executed did not convey the fee simple estate — and this raises an interesting and important question. Though the point was suggested on the trial of the case, we have not had the benefit of any suggestions from he counsel for plaintiffs on the subject.

The deed in question recites that Sedam and wife,in consideration of $12,300.00 to them paid by Henry W. Stephenson and others (naming them) surviving executors of the estate of William Stephenson, deceased, “do hereby grant, bargain, sell and convey to the said Henry W. Stephenson (and others naming them,) surviving executors as aforesaid, their successors and assigns forever,” the real estate in question. This is followed by the statement,“and all of the estate, title and interest of the said grantors, and of each of them, either in law or in equity, of, in and to said premises.” Then follows the habendum clause to the grantees “surviving executors as aforesaid, their successors and assigns forever,” and the covenants of warranty by Sedam in the usual form, to the plaintiffs “surviving executors as aforesaid, their successors and assigns forever”. That is, neither in the granting clause, in the habendum clause, or in the convenants, is the word “heirs” used in connection with the grantees. Now, if we are to be governed in this case by what for a great many years has been considered in England and in this country a well settled rule of construction of such language in a deed, it seems quite clear to us that a fee simple was not conveyed to these grantees. That the most that could properly be claimed is, that they took an estate therein for their joint lives, and the lives of the survivors or survivor of them. And at the death of such survivor, Sedam, if living, or his heirs,devisees er assigns in case of his death, would be the owner in fee •f the whole estate, free and discharged from any claim arising under such deed, saving, of course, any legal deruand against Sedam arising out of the lease executed to and by him. This general rule of the law is this, viz: and I quote from Walker’s Am. Law, “that to create a fee simple estate by deed, the word “heirs” is indispensable, except in the grant to corporations, where the word “successors” though not essential, is usually substituted, Accordingly, if in creating this estate by deed, the word “heirs” happens to be omitted, however clear may be the intention to create a fee, the grantee will take only a life estate.” And as stated in First Washburn on Real Prop., vol. 1, Sec, 53, p. 71: “So a deed to one and his successors, or to one, his successors and assigns, is a life estate only.’ He also says that no synonym will supply its place, and that no circumlocution has ever been held to create a fee. It is true as stated in Washburn (same page) there are some seeming exceptions to this rule — “one being, that where land is clearly conveyed in fee by one deed, and the deed by which it is again granted, instead of being to the grantee and his heirs, be to him as fully as it was granted in the former deed, referring to it, it is only borrowing the words of limitation from the former deed, and conveys a fee.”

Another is, “that in the case of a conveyance in trust, the trustee will take the legal estate in fee, though limited to him without the word heirs, if the trust which he has to execute be, to the cestui que trust anc. his heirs. The words of limitation and inheritance in such case, are connected with the estate of the cestui que trust, but are held to relate to the legal estate in the trustee,because without such a construction the trustee would not be able to execute the trust, and that only, even though it were to him and his heirs, and the trust was for life only, in the cestui qui trust. Thus a grant to A in trust, to sell, carries a fee. ’ ’

If it be claimed that under the last paragraph quoted, this deed may be held to pass a fee, we would answer that in our opinion such would not be the case. Because, in the first place, no trust is created, by the deed, and there is no conveyance to the grantees in trust. It is true that the grantees are described as “surviving executors of the estate of William Stephenson,” but this is rather a description of the persons of the grantees, than a conveyance to them of any trust to be executed by them. It may be true that as between them and the beneficiaries under the will of the testator, they might be held as trustees, but that is a matter with which Sedam and his wife had nothing to do. There is no pretense that it was a part of the arrangement that the land was to be conveyed to them by Sedam, on any trust, or that he had any knowledge of the purpose of the purchase by them. He simply acceded to their proposition to convey the land to them, (describing them as surviving executors), their successors, and assigns forever — and he might well rely on the doctrine of the law, that he thus conveyed to them but a life estate in the property.

Unless the doctrine of the common law is not now the law of Ohio, we would be of the opinion that this depd only conveyed a life estate. And the doubt as to this question arises in our minds in view of a decision of the Supreme Court in 44 Ohio States 269 — Brown v. National Bank.

In that case the court recognize the general rule to which we have referred. In the syllabus the court says:

“1. By a well established general rule, the .use of the word, “heirs” or other appropriate words of perpetuity in a mortgage, or other deed of conveyance of-lands, is essential to pass a fee simple estate; but this is not an inflexible rule of law admitting of no exception or qualification.”

“2, When the language employed in, and the recitals and-conditions of a mortgage plainly evidence an intention to pass the entire estate, of the mortgagor, as security for the mortgage debt, and the express provisions of the instrument cannot otherwise be carried into effect, it will be construed' to pass such estate, although the word “heirs” or other-formal word of perpetuity is not employed.” . •

It must be conceded we think that this holding, to some extent at least,modifies the rule of the common law to which we have referred. The latter holds that as a rule “the use ■of the word ‘heirs’ is indispensable to create a fee simple by deed, and that no matter how clear the intention may be to create the fee, if it is not used, only a life estatej will pass,” and that no synonym will supply its place, and that no circumlocution has ever been held sufficient to create a fee. While the decision under consideration seems to hold that if the word “heirs” be not used, and the intention otherwise clearly appears to pass the entire estate of the mortgagor, it will have this effect.

In that case the question arose on a mortgage on Ohio land, executed in the state of Indiana, on a form which by the lavs of that state, viz: by the use of the words “mortgage and warrant” is operative to pass a fee simple estate in the lands mortgaged. It did not use the word “heirs” in connection with the mortgage. It did not provide for the collection of the notes secured by it, “by foreclosure of this mortgage”. All of these circumstances seem in the opinion of the court to lead to the conclusion, that it was manifest that it was the intention of the mortgagor to pass the entire estate. That the fact that it was executed in Indiana in a form which was there effectual to do this, was entitled to great weight. That the use of the word “mortgage” in the granting clause “was a fact of potent significance.” That the meaning of this, is a grant for the security of'a debt, and that it was unmistakably the intention of the grantor to do this, and that the security should abi'le until the debt was paid; and that this contemplated a sale of the property if the debt was not paid, and to this end, the sale of the complete title of the mortgagor.

None of these considerations apply to this case, and they are the principal, ■ if not the only ones on which, the court, based its judgment. We’see nothing in the language of this deed, which clearly and plainly [expresses an intention to do more than to convey the property to the plaintiffs and their successors. They executed it in Ohio, which up to that time at least, was supposed to be governed in this respect by the common law rule, it not having been changed by decision or statute, as in Indiana, and it was executed on a form from which the word “heirs,” wherever it occurs in connection with the names of the grantees,is carefully erased, a fact perhaps not without significance, as showing that the conveyance by Sedam to these plaintiffs in this form, was done designedly, and not by mistake or oversight. It is true that the deed contains in other respects, all the statements and covenants usual in fee simple deeds with the exception that the habendum clause and the covenants are to the plaintiffs and their “successors,” instead of “heirs.” And it is expressly held in the case of Ford v. Johnson 41 Ohio St. 366, which in effect, was an affirmance of the common -law doctrine as being the law of Ohio, that where “in a deed of bargain and sale the grant was, “unto the said Charles Cline,and to his lawful issue, to go to his surviving brother or brothers and to their heirs and assigns,” and in which the habendum clause was,unto the said Charles Cline and to his lawful issue, to the “only proper use of the said Charles and his lawful issue, (as above mentioned,) forever.” And the covenants of seizin, of quiet enjoyment, and against incumbrances were each with the said Charles Cline and his lawful issue, that Cline only took a life estate.

In view then of all of the law upon this subject, it seems to us, that we are bound to hold that the rule to which we have referred, arbitrary and technical though it be, is the law of Ohio, and if further change or relaxation of its strictness is to be made,it should be done by the legislature, or the true state of the law be announced by the highest court of the state.

If the case were then to be decided by us upon this issue, our judgment would be that the plaintiffs took but a life estate; they are entitled however to a decree finding the amount due from J3edam under this lease, and if not paid by a day to be named by the court, that the interest of Sedam under it be sold to pay the same, but that they can only sell, and the purchaser can only take the leasehold estate during the life of the plaintiffs or of the survivor of them, and that at the death of such survivor the premises would revert to Sedam, and if living, and if not, to his heirs or assigns, free and discharged from any liability to pay the $12,300.00.

Stephen Coles, for Plaintiffs.

Mallon, Coffey & Mallon, for Defendants.

But if it be true that a reply was required in this case, there was really no issue made for trial by the court. But as the case was heard as if an issue had been taken on the allegations of the cross-petitions, the court in furtherance of justice might still allow the reply to be filed. But in our view the claim of the plaintiffs is not one which is entitled to extraordinary indulgence at the hands of a court of equity. At the time of the transaction the property was worth $25,000.00 to $35,000.00. Its rental is $2,500.00. The value of the fee now is about $40,00.00. For this; Sedam has received but $12,300.00, on which he was bound to pay a yearly rental of $800.00, in addition to the taxes on the property. And if the claim of the plaintiffs be sustained, that sum is all that he or his family ever can receive for it from the plaintiffs. It was certainly a most improvident contract upon the part of Sedam and wife, and to allow it to stand, we must feel obliged by the law to do so. We therefore again venture to suggest to counsel, whether in view of all the circumstances of the case, without further stating what our judgment would be on the last point suggested, whether it would not be a fair and equitable arrangement to have this transaction held by consent of parties to be a loan of money secured by the papers executed, and that a decree be made on this basis.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit,—Hamilton Co.„ Ohio Circuit Court,
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    AUGUST GERWE v. THE CONSOLIDATED FIREWORKS CO.

      Action for damages for injury caused by negligence — When case should be taken from jury — Mere speculations as to the cause of the injury—
    In an action for damages for injury caused by defendants negligence, to submit the cause to go to the jury, the evidence must tend to show that the negligence complained of actually brought about the injury, and the court should withdraw the case from the jury and order a verdict for the defendant where the proof as to the cause of the injury are mere speculations.
    Error to the Circuit Court of Hamilton County.
   Smith, J.

The amended petition of Gerwe the plaintiff below avers, that the defendant was a corporation, engaged in manufacturing fireworks at Reading, in this county, and operated a plant there, and that the plaintiff was in the service of the defendant company as a laborer at said plant, January 30, 1893. That on said date defendant used inflammable and explosive substances and material about its plant, and required plaintiff to handle and work with and about it, and wrongfully, negligently and knowingly had and used in and about said plant a certain dry house in which its said fireworks dried, and unlawfully, negligently and knowingly used and operated a stove in said dry house,and wrongfully, negligently and knowingly suffered and permitted the said stove to be heated with fire and to be managed by a minor seventeen years old, who was then incompetent to doit with safety and without danger to the plaintiff, who was then and there required by the defendant to work in another building about fifty feet distant'from the dry house, of all of which premises and matters the plaintiff was then and there ignorant and without knowledge. By means whereof, while the plaintiff on said day was in the service of the defendant, and without any negligence or default on his part, an explosion occurred on said day in said dry house, and without any notice or warning to him, which explosion caused to ignite and explode the inflammable and explosive material about which plaintiff was at work, whereby he was seriously and dangerously injured in the sum of $10,100,00, for which he asked a judgment. The answer admits the corporate character of the defendant; and the control and operation by it of the plant described, and that plaintiff was in its service on that day as a laborer in said plant, and denied each and every other allegation of the petition.

At the close of the testimony offered by the plaintiff, thetiral court on the motion of.the defendant withdrew the evidence from the jury, and directed a verdict for the defendant which was rendered. To this, counsel for plaintiff excepted and filed a motion for a new trial, which was overruled and an exception taken, and a bill of exceptions was duly allowed containing all of the evidence submitted in this case— and this petition in error is filed seeking the reversal of said judgment.

The evidence in the case tended to show, or did show7, this state of fact: At the time the plaintiff was injured he was about twenty-four or twenty-five years of age, and had been engaged in the same employment for defendant company for three months before. What was knowm as the dry house was a small frame building, about 8x10 feet, fitted up with shelves on each side, with a narrow passage in the center. At one side or end of it was a very small place in which there was a small cannon stove, heated by coal, and between this and the other part of the dry house was a wire screen eight feet high extending to the top of the room, to keep, out the sparks,but to allow the heat to go into the dry room. When the plaintiff was first employed, three months before he was hurt, he was put to work in another small frame, building about fifty or sixty feet from the dry house,nothing intervening between the two. He was set to work making stars. At that time two other boys were at work there— one of them, Henry Horne, had been there for some time before. He was about seventeen years and a half old, a bright boy, and tall as an ordinary man. The superintendent of defendant company took the plaintiff into this second building, and set him at'work making the stars, and told the Horne boy, who was at work at the same thing,to show him how to make them, and what he was to do. The stuff from which the stars were made was mixed by the superintendent and brought into this building, and placed on a table, and •stirred and dampened if necessary by the workmen, and by them passed into little moulds. When a sufficient number was so pressed, they would be placed on a fray and carried by the workmen into the dry house and removed to a shelf and the tray taken back. The stars placed on the shelf would be dry in one or two days, and then be placed by these workmen in kegs on the floor of the dry house until removed to a magazine some distance away. About a month after plaintiff was there, there was a small explosion in this building, and after that he knew that they were not allowed to smoke or have matches, and that the rules prohibited all such things. It was the usage of the plaintiff and Horne and any others employed in making these stars, to sweep the floor of these two buildings when they thought it was needed, and as he says, when any one of them went to the dry house and thought that there should be more heat from the stove, to put coal into it. Plaintiff seems to have acted generally under the direction of the young man Horne, He says: “I never had any directions from anybody, only this boy Horne. Whenever he would say “Let’s sweep,’’ I would go with him; I was ignorant, and I used to go with him and sweep. ”

On the day the plaintiff was injured the evidence shows or tends to show this state of fact: Horne and plaintiff were the only persons at work in the building. Both were there at the starting time — twenty or twenty-five minutes to seven a. m. The last the plaintiff saw of Horne, both were busy at work. Horne finished his tray, and went over to the dry house with his tray of stars, and plaintiff never saw him again - — Horne was killed by the explosion. This was about half past seven; Gerwe had been at the dry house in the morning, and got a tray of from there, and had taken it to the other house or shanty as they called it.

About 7 or 8 o’clock a. m. the explosion took place. The plaintiff was at work at his bench with about twenty pounds of material in front of him. He felt the shock, and was knocked down, and heard sounds as of broken glass, and was badly burned by fire. Indeed, he was severely and perhaps permanently injured and disabled, and if the explosion was shown to have occurred by reason of the negligence or wrongful conduct of the defendant company, and he did not by his negligence contribute to the injury, unquestionably the case should have gone to the jury, and substantial damages have been returned against the defendant.

But the question presented by the evidence is, what caused the explosion which brought about the injury to the plaintiff, and was it brought about by any negligence or wrongful conduct of the defendant company. It is averred in the petition that the company wrongfully and negligently had and used on its plant a dry house in which the fire works were dried, and wrongfully,negligently and knowingly used and operated a stove in said dry house, and wrongfully, negligently and knowingly permitted the said stove to be heated by fire and to be managed by a minor seventeen years old, who was then and there incompetent to manage said stove in the said dry house with safety, and without danger to the defendant at work in another buiding situate about fifty feet from the dry house, of all of which the plaintiff was ignorant.

There was no express averment in the petition that the dry house was situated too near the shanty used by the plaintiff and others in which to make the stars,or that the stove used was not properly protected, or that on this day it was negligently or improperly managed by Horne, who it is alleged was incompetent to properly do so, or an averment that the explosion was caused by sparks from this stove — or that it was caused by any one of those things. The only averment on this point, and which immediately follows those as to the negligent and wrongful conduct of the defendant company, is this: “By means whereof,on the said date,while the plaintiff was in the service of the defendant company as aforesaid, and without any negligence or default on the part of the plaintiff, an explosion occurred” etc.

It is upon these allegations of negligence that the plain tiff based his case, and it was incumbent on him to show by evidence, or at least tending to show, that negligence in one or more of these particulars existed, and that such negligence was the cause of the explosion which injured him. Clearly there was no evidence tending to show that it was negligence for the company to have a dry house, other than the fact that it was fifty or sixty feet from this shanty, or to have it where it was. No witness, expert or otherwise, so testifies. And it would seem entirely reasonable and proper that there should befhch a place in a business of that kind. Whether the distance at which it was placed from the shanty, made the latter unsafe, was a question of fact to be shown by evidence. Nor is there any evidence that the mode of heating it by a stove was unusual or negligent, or that the screen between the stove and the drying room, (which was a wire screen like a musquito bar), was insufficient or-unsafe, or not suited for the purpose for which it was used. Indeed there is not any evidence which tends to show that the explosion in the dry house, if that were the place where it originated, was from this stove —there is no evidence even, that a fire was in the stove on this morning or for some time previous thereto. On what principle then could a jury or a court rightly presume or guess that the fire from the stove could have caused the explosion? But in addition to this there was no evidence tending to prove that the defendant company entrusted the management of this stove to a minor who was incompetent to manage it, or that it was his incompetency that brought about the injury. The undisputed evidence was that Horne was of sufficient age and experience to properly attend to it —that he was bright and not careless. But as there is nothing which tends legitimately to show that this fire from the stove caused the explosion, this is immaterial. The evidence does not disclose that other persons were not at the dry house. The explosion may have been produced in many other ways. It is shown that Horne a few minutes before it came, left the working room where plaintiff was, and started for the drying room. May he not have dropped his tray of stars, or lighted a cigar, or dropped a match which by friction or otherwise was set on fire and produced the injury? All of these ways of accounting for the explosion are mere speculations, and not a sufficient basis to found a conclusion upon. We understand the rule to be in a ease of this kind that to entitle the case to go to the jury, the evidence must tend to show that the negligence complained of brought about the injury. If it does not do this,the court can properly withdraw it from the jury. Such, we think, was the case here, and the judgment will be affirmed.

J. W. Wolf, and Col. Michie, for Plaintiff.

L. D. Robertson, for Defendant.


author: Hale, J.

text:
    (Sixth Circuit—Erie County Ohio, Circuit Court
    May Term, 1895.)
    Before Haynes, Scribner and Hale, JJ.
    (Judge Halo of the eighth Circuit taking the place of Judge King.)
    THE C. C. C. & ST. L. RY. CO. v. JOHN McKELVEY, et al.

      Practice — Leave to file reply at conclusion of testimony—
    It is not reversible error for a court in a case where a reply ought to have been but was not filed, to permit the filing of a reply after the testimony was substantially closed and when testimony in rebuttal was being introduced by the other party, where the case had been tried previously without objection as it would have been tried had a reply been filed before the trial commenced.

      Engine setting fire to houses — Evidence competent to shew different hinds of spark arresters in use by- railroads—
    In an action against a railroad for setting Are through defective or insufficient spark arrester on engine, the testimony of expert witnesses would be competent showing the different kinds of netting that were used by different railroads to guard against the emission of sparks, to enable the jury to say whether the particular appliance used upon the engine in question, was a proper appliance. But to charge one company with negligecne by showing that another company used a different appliance is incompetent. Testimony, by a witness conversant with that class of business, is also competent to show defects in the mode in which the netting of the spark arrester was attached and secured around the exhaust pipe, as to the effect of sparks and their vitality, and the distance to which, they could be carried and still start a fire.

      Question to expert whether spark arrester in question was efficient, incompetent.—

    The spark arrester being present in the room, it it incompetent to ask a witness to examine it and state to the jury whether that particular spark arrester was one that was most efficient in preventing the emission of sparks. This is the exact question (he jury were to pass upon, and the proper way is to get all the knowledge the expert had upon the different kinds of netting that were used, the ‘different classes of spark arresters, their efficiency etc., and submit to the jury the question that was put to the witness to answer.

      Same — Specimen of wire netting used now, without proof whether same was used then, not admissible—
    It is incompetent to permit a witness to produce a specimen of wire netting, used upon spark arresters by and procured from defendant R. R. Co’s, shops, to the jury for examination, and to permit the jury to take it into the jury room in their deliberations, no proof being offered that this kind was used upon the engines of this railway company at that time, and the wire netting was procured some two or three years after this transaction.

      Measure of damages — Cost of reconstruction with deduction for wear and tear of structures destroyed—
    The testimony of an expert builder as to the cost of reconstructing the houses burnt according to the plans and specifications on which the old buildings were constructed, and as to the probable depreciation through the time they had stood, with a view of taking from the cost of the new buildings the value of the depreciation of the old, and thus determine the loss, does not furnish the proper criterion for the assessment of damages, but is only competent as a circumstance in the case to be considered by the jury in fixing the actual value of the property destroyed.

      Same — Market value—
    Questions not only leading up to showing that the property destroyed had a market value, but showing it had a market value, are entirely competent. It is competent to show, as bearing upon the actual value of the property destroyed, what its actual value was as a whole before and after the fire.

      Same — Actual value of property destroyed—

    The measure of damages is the actual value of the property, and not what it would have cost to reconstruct or replace the same, with deductions for wear and tear. Under such a rule the damages might far exceed the actual value of the property and the actual loss to plaintiffs. Where property totally destroyed has a market value, that market value is the measure of compensation for the loss.

      Sparks picked up, when admissible—

    If it is clearly established that sparks picked up and produced in evidence came from the engine, it would be competent to admit them in evidence.
    Error to the Court of Common Pleas of Erie County.
   Hale, J.

This is a proceeding in this court whereby the reversal of the judgment of the court of common pleas is sought. The plaintiff in error was the defendant below, and the defendants in error were plaintiffs below. I shall use the terms plaintiff and defendants as they appear in the petition in error. The defendants,McKelvey & Co., were the owners of premises situated within the city of Sandusky, or immediately upon its borders, upon which were erected two blocks of ice-houses, one block of five and the other of six. Those ice-houses on the 15th day of July, 1891, were destroyed by fire. The plaintiff, the Railway Company, owned and operated a railroad at that time adjoining the premises upon which the ice-houses were located. The defendants, Mc-Kelvey & Co., claim that the railway company is responsible for the destruction of those buildings; that the fire originated through the negligence of the railway company, and the negligence alleged is, that on and prior to the day these buildings were destroyed, the company had in use an engine which was out of repair, not provided with a proper spark arrester, and it negligently used the engine in the vicinity of these houses, from which sparks were emitted lodging in the cracks of the building and causing the fire. The particular defects that were claimed in the spark arrester were that the mesh of the netting used was too large,'- that it was not properly attached to the engine, and was otherwise out of repair. The negligence alleged by the defendants was denied by the plaintiff, and the further allegation was made by the plaintiff in error, that the defendants were guilty of contributory negligence in the care of their buildings and the manner in which they' were left, and in failing to make any provision to guard against loss by fire, being in the situation they were.

The case was tried at the April term, 1894, of the court of common pleas before the court and jury, resulting in a verdict for the defendants in the sum of $14,777.40. A motion for a new trial was interposed, which was overruled, and judgment entered upon the verdict. During the progress'of the trial a large number of exceptions were taken to the, [introduction of testimony, the charge of the court, and the refusal to charge as requested.

The first error complained of is, that" the court permitted the defendants, after the testimony was substantially closed, or while the plaintiff below was introducing testimony in rebuttal, to file a reply.

It seems that it was then discovered that the allegation of contributory negligence made by the answer had not been denied by a reply. Of course,if the case were to be reversed, that error would be wholly immaterial, as it could not again occur.

And all I ne'ed to say is, we find as a fact from this record that the case was tried precisely as it would have been tried had a reply been filed before the trial was commenced, and apparently was tried in ignorance of the fact upon both sides that no reply had been filed; and we hold that there was no error in allowing the reply to be filed, or in refusing to withdraw a juror and continue the case by reason thereof.

The defendants, to maintain the issues upon their part, called as a witness Charles H. Cory, who is now connected with the Cincinnati, Hamilton & Dayton Railroad, and this question, against the objection of the plaintiff, was allowed to be put to the witness and answered:

“Q. Will yon state whether this spark arrester here is a spark arrester of the kind that was in general use, with respect to its size, mesh, and different parts, during 1891, upon the roads here in Ohio? A. The general style and shape of the netting is such as is in general use, and was, in the year you refer to ■ — 1891. The mesh, or the opening in the wire, is a very little larger than we use on our road, or did use at that time; I have not measured that — I should judge it is what is termed in mechanics a possibly two by two or two and a half mesh. The mesh we use is what is known as a three by three mesh.”

Counsel for the plaintiff then moved to exclude the answer. The court said:

‘‘I think that part of that answer is incompetent,in that it makes the road that this gentleman is connected with the standard. I will let that stand, however.”

The court, leaving the record there, would be very likely to be misunderstood. He did not mean, I suppose, to say, that standing alone as it was, it would be incompetent, but might be made competent by the introduction of further testimony, for he says further on, after some further objection:

“You may show that another spark arrester was in use, and then, if jou can, that it was in general use.

“Q. Now state whether, from your experience with spark arresters and the methods of covering the cleaning holes in them,you can say that such an appliance as you have described is in use by the railroads of the United States?”

That question was objected to. The trouble is not with the^question put, for it was intended to elicit from the witness whether this very spark arrester that was used upon this engine was in general use, but he answers:

“A. I can only speak in regard to that as to our own company — it is in use there.”

That is the three by three. Then counsel for the plaintiff moves to strike out that answer, which was overruled.

This witness, an' employe of another railroad, was.permitted to state that the netting used on his road was different from that used upon this engine, without showing, and und.er the positive statement, that he was unable to state whether it was in general use or not.

The obligation of this company, imposed by statute, was to equip this engine with some appliance or contrivance that would effectually guard against the emission of fire and sparks which would otherwise be thrown out. The alleged negligence was the omission of this duty on the part of the company. Was this testimony competent to establish that alleged negligence? After a careful review, we have come to the conclusion that it was not. We have no doubt it was entirely competent to aid the jury in the investigation by the testimony of expert witnesses covering the different kinds of netting that were used,to show the appliances with which each would guard against the emission of sparks, and educate the jury up to a point that they might say whether this particular appliance used upon this engine was the proper appliance or otherwise. But to charge one company with negligence by showing that another company used a different appliance, is a line of testimony that we think is wholly incompetent.

There were other questions put to this witness as to the mode in which this netting was attached and secured around the exhaust pipe, testimony eliciting his knowledge as to the effect of sparks and their vitality, the distance to which they could be carried and still start a fire. That testimony we are not disposed to say was incompetent. The witness had shown himself to be conversant with that class of business, and the subject was one upon which testimony might reasonably be used.

A witness, C. D. Wilder, a resident of Buffalo, and employed on one of the railroads terminating in Buffalo, was called and substantially the same questions were put to him as to the witness Cory, which I have been considering and ■need not be further considered. So far as they fall within the rule that I have announced, we hold them to be incompetent. A further question put to this witness was objectionable.

The spark arrester being present in the room, witness was' asked to examine it and state to the jury whether that particular spark arrester was one that was most efficient in preventing the emission of sparks, or in substance that.

That was the exact question the jury were to pass upon, and we think the better way, at least, would have been to follow the course that I have just indicated, by getting all the .knowledge the expert had upon the different kinds of netting that was used, the different classes of spark arresters, their efficiency etc., and submit to the jury the question that was put to the witness to answer. We think it was error to pursue that course in the examination of this witness.

Another witness, J. B. Brown, a resident of Cleveland, was permitted to state to the jury, in answer to questions, that he had very recently before giving his testimony procured from the plaintiff’s shops in Cleveland a specimen of wire netting used upon spark arresters. Pie was required to produce that to the jury for examination, and the jury was permitted to take it into the jury room in their deliberations, no proof being offered that this kind was used upon the engines of this railway company. The netting was procured some two or three years after this transaction, and we think that kind of testimony was well calculated to prejudice the jury in the consideration of the questions that were to be submitted to them, and hold that it was error on the part of the court to allow that testimony to go to the jury in the form and under the circumstances shown in the record.

I pass over now the question that is made upon the weight of the evidence. It is claimed by plaintiff that the court erred in overruling the motion for a new trial on the ground that the verdict was against the weight of the evidence. Passing that point, I come to the question of damages in the case. • This question relating to the measure of damages involves an examination of the testimony that was permitted to go to the jury bearing upon that subject; the charge of the court upon the subject, and the requests to charge, for the court, early in the trial of the case, was called upon to rule upon evidence that would indicate the measure of damages that was to be adopted in the case.

It was claimed on the part of the defendants in error that the rule of damages was the cost of reconstructing the building, deducting from that cost the depreciátion of the old buildings by wear and tear at the time of their destruction. It is quite evident from this record that such claim was made, while on the part of the plaintiff in error it was claimed that the actual value of the buildings, the market value of the property destroyed, should govern. While the first witness was on the stand, Mr. McKelvey, questions were put to him with the purpose of eliciting from him the cost of the reconstruction of those buildings according to the plans and specifications upon which the old buildings were constructed, and then he was asked as to the time that the old buildings had stood, and their probable depreciation, with a view of taking from the cost of the new buildings the value of the depreciation of the old, and thus determine the loss. It is claimed on the part of the plaintiff, the railway company, ■that this testimony was incompetent. We do hold, however, that this testimony did not furnish the proper criterion for the assessment of damages, but that it was only competent as a circumstance in the case, to be considered by ■.the jury in fixing the actual value of the property destroyed.

Bearing upon this question the builder who constructed those buildings was called as a witness to -establish the same .proposition, and, of course, his testimony falls within the same rule. Two other witnesses were called who had no acquaintance with these buildings, but were builders, and their testimony was sought, as experts, to prove the value of the buildings. It was done in this way: Certain plans and specifications were shown to the witnesses, and they were asked the cost of the construction of the buildings according to those plans and specifications. It is contended on the part of the plaintiff that that testimony was incompetent, on the ground that those witnesses,having no actual knowledge of the property destroyed, . could only be called upon to answer hypothetical- questions, the basis of which should be the facts that had appeared in the case from other testimony, and could give no testimony based upon the plans.

We have not examined those plans with that degree of care and accuracy that would enable us to say just how far they went in the direction of embodying all the facts necessary for such au estimation. We are inclined to leave that testimony with saying, that if the plans and specifications embodied all the elements entering into the construction of the building, kind of building, kind of timber, mode of construction, quality of the timber, and have been put in evidence in the case, sworn to be correct, they might be made the foundation of an estimate of the value by expert witnesses acquainted with the business. In form it comes to this, that the hypothetical question is put to the witness, what would be the cost of a building constructed according to those plans and specifications, embodying the plans and specifications as a part of the question. That is the substance of it, and in that way we think it would be competent.

But dealing with this question further, a witness by the name of Upp, a resident, I believe, of Toledo, and for many years engaged in the ice business in this city, and until very recently the owner of that class of property in this city, was ■called by the defendant and was questioned as to that class of property, the length of time it would stand, the depreciation, and various other facts that were supposed to bear upon the value of the property destroyed. On cross-examination he was asked, after taking him over various other matters, and eliciting testimony tending to show that this property had a market value and might be thus estimated:

!'Q. And ice-houses were of the same market value — that is the market value was the same as the market value of other real estate, wasn’t it?

“Mr, McKeivey: We object to that, for the reason that this is leading up to a question of market value. ’’ '

The court sustained the objection, to which ruling an exception was taken.

“Q. Now, it is a fact, isn’t it, that when you speak of market value of real estate you mean, what it would bring in the market where there was a buyer and a seller?’’

This question was objected to on the ground that it was leading up to the question of market value.

This plainly indicates the line that the defendant in error was standing upon — the proposition that the market valué of this property described could not be shown, although it had a market value, and questions tending to show that it had a market value were excluded.

We think that questions not only leading up to showing that it had a market value, but questions showing it had a market value were entirely competent. The court said to counsel: “You may show that these ice houses, separate from the land, had a market value, if you can; but you may not show that the whole property had a market value before and after the fire. ” Whatever rule was applied finally, it was clearly competent to show, as bearing upon the actual value of the property destroyed, what its actual value was as a whole before and after the fire; and it was confining the testimony to too narrow a limit to exclude this kind of testimony because it was leading up to showing that this property had a market value.

Now,going to the charge of the court upon this question, and the requests made to charge by the plaintiff. Request 28 reads as follows:

“Request No. 28. The value of the property destroyed cannot be determined by what it would have cost to reconstruct the buildings and replace the property upon the same plans and dimensions, and with the same kind of materials and workmanship as before, and making a deduction from the cost of new structures and machinery, for the wear and tear and the depreciation of the old; but if you find for the plaintiffs, the amount of their recovery will be the actual value of the property,and not what it would have cost to reconstruct or replace the same, with deductions for wear and tear. Under such a rule the damages might far exceed the actual value of the property and the actual loss to plaintiffs. Where property totally destroyed has a market value, that market value is the measure of compensation for the loss.”

The court refused to give that request, but did instruct the jury:

“The measure of damages in cases where the property of one has been destroyed unintentionally by the negligence of another, is just compensation in money for the property destroyed,and that.is the full value of the property at the time and place of its destruction, and the interest on that amount from that date. ”

That is a clear and correct proposition, but he goes forward and gives the jury the rule by which they are to determine .that value, and he says — :

“I determining the value of the property, in case you find for the plaintiffs, the jury will consider all the facts in evidence as to the character, quality, situation and condition of the property, the uses .to which it was devoted, and its adaptability to such uses, and all toe evidence bearing upon the value of the property at the time of the. fire.

“And you may arrive at that value by considering, in connection with all those facts, what it would have cost to reconstruct the buildings and replace the property upon the same plans and dimensions, and of the same kind and quality of material, workmanship, machinery and appliances as before, making a just deduction from the cost of new structures and machinery for the wear and tear and depreciation of the old. That would be a proper method by which to arrive at the value of the property.

“Of course,it would not be proper to allow these plaintiffs what it would cost to reconstruct new buildings, because new buildings might be worth a great deal more probably than the buildings which stood there. If you comeat your measure of damages in that way, you should estimate the cost of new, structures, and make a proper deduction from that cost for the depreciation and wear and tear of the old.”

Now, we have no doubt that the jury -would understand from that charge that they might take the testimony that had been given,to which I have referred, ascertain the cost of the buildings, ascertain the proper deduction to be made from the cost on account of the wear and tear of the old buildings, and arrive at their verdict in that way..

If that is so, we think the charge was erroneous.

This charge must then be taken as permitting the jury at least to ascertain the extent of the loss sustained by the defendants in error by determining the cost of reconstructing the buildings, deducting from the sum thus fixed such reasonable sum for depreciation in value by wear and tear of the buildings destroyed, as the jury should determine. Certainly, such a rule cannot be of universal application. It excludes,if not the use to which the building is adapted, the important consideration whether the business to which it is only adapted was profitable, or had become a failure and could only be continued at a loss. We all know that buildings adapted to one purpose and class of business lose much of their value when that business ceases. A plant constructed and equipped for the manufacture of certain machinery which has been superceded, although in the most perfect condition, would be worth but a small percentage of its cost. If the owner of such a plant would recover from one who has wrongfully caused its destruction, the cost of its reconstruction,he would realize from its destruction a much larger sum than he could have realized from any saN possible to have been made. A dwelling house of the most approved style of architecture and in the most perfect condition,might be worth far less than its cost, owing to its location or changes in its surroundings. There is no class of realty to which this rule can be safely applied. Again, the cost of reconstruction might be far less than the actual loss sustained; There might be interruption of a manufacturing business which would entail upon the owner of the building a loss which would not be fully compensated by the reconstruction of his plant.

In the case of McKelvey & Co. they were the owners of real estate consisting of land and buildings. The buildings apart from the land had no value as buildings.. They were not such as could be removed. The owners could not have sold them separate from the land, and we’ see no reason for insisting upon a separation for the purpose of ascertaining the loss sustained by their destruction. Before the destruction of the buildings, the value of this property was much greater as one property, buildings and land together, than the sum of any separate value that could be put upon the two. But a rule is applied after their destruction which makes the separate valuation much more profitable than the valuation as a whole. This result is reached by determining that the buildings had no market value separate from the land, and then permitting the jury to ascertain the cost of the buildings with deductions for their depreciation from use.

The rule adopted by the court below finds some support in cases from some of the states, noticeably Iowa, but the cases cited are not in their facts entirely like the case at bar, though, as I say, they give some support to the rule adopted. But that rule finds no support, so far as we can ascertain, in any of the decisions of our own state. In the appropriation of private property to a public use, the value of the property actually taken is ascertained. Then comes the question of the injury to the property not taken, adjacent. Now, the Supreme Court have held that a witness may not be asked how much less valuable property not taken is by reason of the appropriation, but the witness may speak of the value of the property before the appropriation, and its value afterwards, and allow the jury to ascertain the extent of damage.

In the case in 16 Ohio St., 573,the court say;in substance, the market value, if the property has a market value, must' govern. If the property has not a market value, theirthe actual valuejjmustjbe ascertained of those who have knowledge of that actual value. So that we think there was error in the courfjboth in allowing the introduction of testimony upon this subjectjand in the charge given to the jury upon the subject, and^hTthe [refusal to give to-the jury Request number 28.

The question as to the weight of the testimony we have considered to some extent, but in view of the fact that the case is to be remanded for a new trial and may be tried upon a different line of testimony somewhat, and in view of the fact that testimony went to the jury which we hold to be incompetent upon this trial, we do not pass upon that question. We leave that question and will be at liberty to consider it when it shall have been tried to a jury upon a proper basis and upon proper testimony.

In the question made here as to the ruling of the court upon the question of contributory negligence, we find no error. In short, I end this discussion by saying that in the respects not specifically designated we find no error in this record excepting that we do not pass upon the question as to the weight of the evidence. The result is that the case will be reversed and remanded to the court of common pleas for further hearing.

Upon this question made in the record as to the competency of certain sparks that wrere alleged to have been picked up along the track of the railway company to be given in evidence, the court are not wholly in accord. We all agree if it was clearly established that the sparks picked up came from the engine, that it would be competent to make the use of them that was made, but we do not all think that the proof establishes clearly enough that those sparks did come from this engine. The best thing we can do with this question is to let the plaintiff on a subsequent trial of the case take his chances in offering this testimony.

I said in the discussion of the case that the testimony permitted to go to the jury as to the cost of reconstructing the building together with the percentage of depreciation was competent. This court is of the opinion that that testimony is, as I have said, barely competent, but is of that nature that it should be very carefully guarded* by the court, lest an improper use be made of it by .the jury.

Hon. John T. Dye, S. H. Holding and Geo. E. Reiter, for Plaintiff.

Phinney & Merrill and John Jay McKelvey for Defendants.

Defendant in error excepts.


text:
    (First Circuit—Butler Co., O., Circuit Court
    April Term, 1891.)
    Before Cox, Swing & Smith, JJ.
    THE COMMISSIONERS OF BUTLER COUNTY, O. v. A. J. WELLIVER, CLERK.

      Fees of Clerk of Court collectible from county treasury — Construction of the different sections allowing such fees—
    Except by statute specifically provided, the clerk of court is not entitled to receive any compensation from the county, treasury for any services rendered for the benefit of the county or the public however valuable and necessary such services may be, and although the law absolutely requires him to perform the same. If so required for the public, and no provision is made for its payment from the treasury, it must be regarded as gratuitous.
    The different sections allowing fees to the Clerk to be collected from the county reviewed. — Sec’s. 1260, 1261, 1262, 1263, 1264, 4957, 5132, 5Í36, 5339a, 7189, 7155, 7164, 7199.
    Error to the Court of Common Pleas of Butler County,0.
   Smith, J.

The question in this ease is, whether under the law and the evidence as it is set out in the bill of exceptions, the court of common pleas erred in allowing to Mr. Welliver, the clerk of the court, to be paid to him from the county treasury, those items in his bill presented to the commissioners for service rendered by him at the May term of the court, 1890, and allowed him by the court, the correctness of which is disputetd by the commissioners, or the payment for which they claim cannot properly be made from the treasury of the county.

Sec. 1260 Rev. Stat. is the general section regulating the fees which the clerk is authorized to charge in civil and criminal actions, and which may properly go into the cost bill in such cases; and also the fees which he may charge for certain other specified matters, not rendered in such actions. But such section does not contain any provision that in any event any of the fees so allowed are to be paid from the county treasury. But sc far as regards the costs so authorized to be charged in criminal cases, sec. 1261 does specifically provide, that in cases wherein the state fails to convict the defendant, or in case of conviction fails, after diligent effort to collect the same, the amount thereof not exceeding $300.00, may be paid from the county treasury under the circumstances mentioned in the section. And the two succeeding sections, viz: 1262 and 1263, point out the only other services for which the clerk is entitled to be paid from the tréasury, so far as we have seen, except those performed under the provisions of Sec. 5339 a — that is, for making up a general index in those counties in which such general index has not before been made, in which case it is stipulated that he shall receive therefor from the treasury the same fees as were then allowed for making indices for judgments. It may be also that there is provision for some payment under Sec. 1264, hereinafter referred to. Except as is in those sections specifically provided, we understand the law to be clear that the clerk is not entitled to receive any compensation from the county treasury,for any services rendered for the benefit of the county or the public, however valuable and necessary such services may be, and although the law absolutely requires him to perform the same. If so required for the public, and no provision is made for its payment- from the treasury, it must be regarded as gratuitous. This is directly held in several decisions of the Supreme Court, notably in those in 25th Ohio St. 13, and 26th Ohio St. 46. The questions then for us to decide are, whether those charges of the clerk, allowed by the court of common pleas, and to which the county commissioners object, are by the statutes to which we have referred, or either of them, to be paid from the treasury. The first item disputed is number 9, which is a charge for filing 190 certificates of the qualifications of witnesses, sworn to testify before the grand jury.

Sec. 7199 Rev. Stat. provides, substantially, that before a witness shall be examined by the grand jury, he shall be sworn, and a certificate of that fact be presented to the foreman thereof, when he is admitted for examination. By the terms of Sec.- 1262, the clerk is to be allowed from the treasury for all services rendered to the grand jury “the same fees as are allowed for similar services in a cause pending in court.” For the swearing of witnesses to go before the grand jury, entering their allowance, and giving certificates of their qualification and issuing certificates for their fees, we think it clear that the clerk is entitled to pay from the county under this general provision, and this is not disputed; but the statute makes no provisions for the return of a certificate of qualification to the clerk and its filing by him. It is certainly a wholesome practice to do so, but it is in no sense a service rendered to the grand jury, and for this reason should be disallowed.

Number 11 is a charge for making entries of grand jury business on the journal, 3200 words at 8 cents per 100. It is conceded by the counsel for the commissioners, that 4the clerk has a valid claim for a part of this charge, viz: for the entries as to the empaneling of the grand jury, the entry of the bills of indictment returned by it, and the discharge cf the jury by the court. But these entries would not amount by actual count to more than ■ — ■■—words. The clerk in his estimate included the journal entries made when a recognizance had been received by him from examining magistrates, when parties had been held to appear before either the probate court or the court of common pleas. Secs. 7155 and 7164 seem to point out what is to be done in such cases, and it does not appear that any such entry on the journal is necessary. But if it be necessary, the cost .should be taxed in the case, and not to the county. This item should be reduced to the sum of — .

The item number 14, of $17.28 for entering the attendance of thirty-one petit jurors for 432 days, and,number 19 for certificates for their fees, are not payable by the county, and for the same reasons items number 16, 20, 21, 22, 24, 25, 31, 34, 62, 63, 69, and 70 will be disallowed.

We are of the opinion that item 26, for-G-eneral Index of 147 cases — of judgments in common pleas, is payable from the treasury under the provisions of sec. 1263, which allows the clerk for making up and compiling general indices direct and reverse of all judgments, eight cents for each cause; that the law does not limit this payment to cases under sec. 5339, which provides for the making of such index where it had not before been done. And though the clerk does receive pay for this service also from litigants, it may well be that the legislature intended the county also to assist in keeping it up after it is once made up. It is not entirely clear that this is so, but we are disposed to so hold in this case. But we see no warrant for items 27, 28 and 29, as against the county.

The court of common pleas in this suit allowed the clerk $12.50 — -the one half of the charge presented for preparing bar docket for the May term, 1890, which the court finds was not in fact made, and $15.00 for an index to the same (Nos 66 and 67). Sec. 4957, Rev. Stat. requires the clerk to keep atleastfive books, viz: The appearance docket, the trial docket, and by a recent amendment to that section, printed duplicates of the trial docket for the use of the court and the officers thereof, a journal, record and execution docket, with an index to the trial docket and to'the printed duplicates of the trial docket. Sec. 5132 points out what the trial docket shall contain, and sec. 5136, requires a copy of this docket to be made for the use of the bar at each term, and this is still in force, and must be complied with, (and without compensation therefor from the county unless the printed duplicates mentioned in sectionj[4957 dispense with it, which we think is the case, and that there being no necessity for the bar docket where the printed duplicates are furnished, and there being no provision for the payment from the company for furnishing the bar docket, these items for making it and the index to it are not to be allowed.

Sec. 1264, Rev. Stat. requires the county commissioners to furnish the'clerk three printed duplicates of the trial docket if they are made, and the clerk is thereby authorized to procure them, and he is to be allowed therefor on his certificate. We think under this provision, that if the clerk cause a copy of the trial docket to be made for the printer, the reasonable cost thereof should be allowed to him, and we can not say from the evidence that the $15.00 charged and passed by the court is too great. Item 72 will therefore be allowed.

Item 68, is a charge for making two lists, under the provisions of sec. 7189 for grand jury purposes, of the cases in which persons have been recognized to appear before the court. Under the terms of sec. 1262, we think the clerk is entitled, to charge the county for this service, at the regular rate per 100 words, and for the certificate thereto. The charge made for this for May term, 1890, and allowed by the court, is probably altogether too great, but the number of words therein nowhere appears, even approximately, and on the evidence in the bill of exceptions we %re unable to say certainly that the allowance is not proper.

Morey, Andrews & Morey, for Plaintiff.

From the foregoing it can readily be ascertained, what in our judgment, the amount to be allowed to the clerk is. It is not a pleasant thing to disallow claims of an officer of the court for services actually rendered by'hita, many of which are necessary and valuable, and for some of which he can receive no compensation from any other source. But with an understanding of the law, that they can not be paid ficm the county treasury, unless such payment is explicitly provided for, our duty is plain, and must be performed.