author: Moore, J.

text:
    (Third Circuit — Allen County, O., Circuit Court
    Dec. Term, 1885.)
    Before Judges Bebb, Moore and Seeney.
    The Phœnix Fire Insurance Co. v. Charlotte N. Vorhis.
    1. Where personal property is described in a policy ot insurance as being situate in a particular building, and such place of storage is afterward changed without the consent of the insurer, and loss accrues, no recovery can be had.
    2. Where the assured notified the company that she would change the place of storage, and was informed that the assent of the company to such change, when made, must be entered upon the policy of insur-. anee, and nothing further is done by the assured, either notifying the company of the change made, or procuring its assent, such notice is not sufficient to bind the company.
    Error to the Court of Common Pleas of Allen county.
   Moore, J.

The plaintiff, Charlotte N. Vorhis, filed her petition in the Court of Common Pleas of Allen county upon a policy of insurance issued to her by the Phoenix Fire Insurance Company, to recover the sum of $100, being the amount of insurance upon a buggy, which was included in said policy of insurance with other personal property named therein. The buggy was described in said policy in these words: “ $100 on her buggy, situate in a frame shed on Walnut alley, between North and High streets, in Lima, Ohio.” The petition contained other necessary avernfents of proof of loss, etc.

The insurance company filed its answer, setting forth the fact, that without its knowledge or permission the plaintiff had removed said buggy from the place designated in said policy of insurance, to another and different place of storage, when not in use; to-wit, to the livery stable of one Robert Hume; and that said buggy was burned in said stable, and not at the place where it was insured; and for that reason it denied its liability for said loss. No other defense was made.

_The plaintiff, by her reply, admitted that the buggy had been removed to Hume’s livery stable, and that it was therein burned; but she averred that the insurance company had been notified of the removal of the buggy to the livery stable, and had assented thereto.

The cause was submitted to a jury, and under the charge of the court, a verdict was returned for the plaintiff for the amount of the insurance.

The defendant filed its motion to set aside the verdict' and for a new trial, for the following reasons to-wit: First, that the verdict was not warranted by the testimony.

Second, that the court erred in its instruction to.the jury.

This motion the court of common pleas overruled, and entered judgment on the verdict.

The Phoenix Insurance Company filed its petition in error against the plaintiff below, Charlotte N. Vorhis, in this court, and asks the reversal of the judgment of the court of common pleas, on the ground of the refusal by that court to set aside the verdict of the jury and grant a new trial for the reasons set forth in the company’s motion filed for the purpose.

The testimony and charge of the court are before this court in the bill of exceptions.

The testimony establishes the following facts, to-wit:

That Ambrose Vorhis, acting as the agent of the plaintiff, his wife, some two months before the fire called at the office of Melhorn,^the agent of the insurance company, and said to the agent that his wife intended to remove her property. Mr. Melhorn told Mr. Vorhis, that in order to keep the insurance valid it must be transferred upon the policy. Nothing was said by either party about the buggy, the word property alone being used. Mr. Vorhis did not state to Melhorn where his wife intended to remove the property to. This was all the notice or knowledge ’the company had concerning the intended removal, and it did not in fact know that the property, or any part of it, had been removed, or where it was removed to until after the fire which consumed the buggy. Within a few days of the conversation bet ween Vorhis and Melhorn, Mrs. Vorhis removed the buggy to the livery stable of Robert Hume, where it was afterward burned. After the fire, Mr. Melhorn, the agent for the insurance company, was notified for the first time that the buggy had been removed, and of the place to w.hich it had been so removed.

Mr. Vorhis further testified, that after the buggy was removed he went to the office of Mr. Melhorn, the company’s agent, to have the transfer made on the policy; but Mr. Melhorn was not in, and he did not see Mr. Melhorn until after the loss. This is not contradicted by the testimony.

The liability of the defendant below upon these facts is the only question before the court for its determination, every other essential fact necessary to a recovery being admitted. No change in the terms of the contract other than the change in the place of the storage was asked for, or claimed to have been assented to, nor any other change made by the assured which could affect the liability of the insurer.

There is no claim made on the part of the assured that the insurer had any knowledge as to the place to which the buggy was to be removed for storage, and no knowledge that it in fact had been removed. All that can be claimed by any fair construction of the evidence is, that while the assured said to the insurer that she intended to remove her property, and was informed that consent of the company must be entered on the policy to keep the insurance in force, the company was not informed of the tim$* of removal, or the place to which the buggy had been removed ; and had no opportunity to either advance rates, cancel the policy, or assent to the continuanc of the risk upon the terms of the policy.

The description of the place where personal property is insured, is a warranty that it is then in that place, and that it will remain there. This rule is based on sound reason, and is consistent with the rule which controls in the construction of all other contracts; and no reason is apparent why a different rule should be applied to the construction of policies of insurance.

At the time of making the contract by the issuing of the policy by the insurer, and its acceptance by the assured, the location or situation- of the property is considered by the insurer in fixing the rate of insurance; and it is for the risk assumed by the insurer in that place that the assured pays. To hold that when the insurer has assumed the risk of loss by fire in a locality with which it is familiar, for a certain consideration, that the assured may, at his option, place the property in another place where the hazard may be doubled or trebled, without the assent of the insurer, or an opportunity to protect itself by increasing the rate, or cancelling the policy, would be to permit the assured to impose upon an insurance company, without its assent, burdens for which it received no consideration, and which could be done under no other class of contracts.

Richie & Richie, for plaintiff in error.

T. E. & W. H. Cunningham, for defendant in error.

The insured should not be held for a loss unless it is fairly within the terms of the policy, and in determining what is within the terms of a policy, the character of the goods insured must be considered; for if it is of such articles as are not required to be removed from the place designated in the policy, in their ordinary and proper use, no recovery can be had if burned while not in the designated place of storage, as such removal would not reasonably have been contemplated by the parties at the time of making the contract. But if a horse, buggy or other article be insured, which in its ordinary and proper use would be taken from the designated place of storage, such removal would necessarily have been taken into account by the insurer and assured when the risk was taken, and for a loss which should occur while temporarily absent from the place of storage, while in use, the company would be held.

These conclusions are supported as well by the light of carefully considered cases, from which we cite Bryce v. Lorillard Ins. Co., 55 N. Y., 240, where goods insured were described as being in section “ C ” in a store, while in fact they were, at the time they were insured, and at the time of loss, in a different section, and it was held that there was a breach of warranty. Folger, J., in his opinion, says : “ Whatever is expressed, whether with perspicuity or obscurity, that is what is warranted.”

In McCluer v. Girard Ins. Co., 43 Iowa, 349, the court say: “Where there was insurance on a phaeton contained in a frame barn, the designation of the place was a warranty that it should be kept in the barn, except when temporarily absent for use.”

We think it clear that under the facts in this case no recovery can be had for the loss, as it was not “ temporarily absent for use.” The verdict was not supported by the evidence, and for refusal to set the verdict aside the judgment of the court of common pleas is reversed, and cause remanded.


source: Caselaw Access Project

author: Woodbury, J.

license: Public Domain

text:
    (Seventh Circuit — Guernsey County, O., Circuit Court
    June Term, 1885.)
    Before Judges Laubie, Woodbuby and Koleett. (Judgo Follott of the Fifth Circuit, taking the place of Judge Frazier.)
    Alex. McCullough v. S. J. Cramblett.
    In a petition in the common pleas, in an action appealed from a justice of the peace, it is not necessary to allege that the action came into the former court by appeal.
    Error to the Court of Common Pleas of Guernsey County.
   Woodbury, J.

Cramblett brought his action against McCullough, before a justice of the peace, to recover damages for trespass by his cattle to the former’s growing corn. Plaintiff had judgment below, and defendant appealed. In the common pleas Cramblett filed his petition setting forth his complaint, and asked judgment for $50 damages, but he did not allege that the action came into that court by appeal.

McCullough' demurred, on the ground that the petition showed the court had no jurisdiction. The court below overruled the demurrer, and that ruling is alleged for error.

It is claimed that want of jurisdiction is apparent on the face of the petition, because the amount claimed is less than $100. This traises the question, whether the common pleas may look to the transcript, papers and proceedings outside of the petition to determine its jurisdiction by appeal, or whether the plaintiff must allege in his petition that the action comes into that court by appeal. In short, must it appear from the petition itself.

This question has been much discussed, and the practice has been .anything but uniform. Some common pleas judges have required-the allegation to be inserted; others have stricken it out on - motion. The question has never been passed on by the supreme court.

The statute provides, among other things (Rev. Stats., Sec. 6584, et seq.), that the party appealing shall give bond, and within. thirty days from the rendition of the “ judgment appealed from- ” deliver to the clerk of the court to which such appeal may be taken a certified transcript of the justice’s proceedings, and such justice, within the same' time, shall “ deliver, or transmit to such clerk, the bill of particulars ' * * and all other original papers, used on the trial before him.” “ The clerk, on receiving such transcript and other papers as aforesaid, shall file the same, and docket the appeal.” Section 6586.

When these steps have been regularly taken, the appeal is perfected. The. action is in the court of common pleas by appeal. Its jurisdiction has attached. If no petition is filed, judgment may still be rendered. Section 6589. Indeed the parties may go to trial on the transcript and original papers. Hallam v. Jacks, 11 O. S., 692.

Such an allegation is not issuable. If the case is not appealable, or if the appeal has not been perfected, the practice is to dismiss the appeal on motion. The question raised by such motion is one of law, not of fact, which is settled by an inspection of the record. The original pleadings are filed with the transcript, and are to be looked to not only to ascertain whether the action is appealable, but to ascertain whether the justice had jurisdiction. For if the justice had no jurisdiction, the common pleas takes no jurisdiction by appeal. Wood v. O’Ferrall, 19 O. S., 429. The court will likewise look to the record to see that bond had been given and transcript filed as required by few.

We are somewhat aided in this matter by the manner of 'taking cases by appeal from the common pleas. The proceedings are very similar. The party appealing having given bond, the clerk shall make a transcript, etc., “ which transcript, together with„the original pleadings and papers, he shall deliver at the office of the clerk of the district court.” Rev. Stat., 5235. No docketing of the appeal is provided for by statute. No pleading is required showing that the action came into the district court by appeal. How is the latter court to know that fact except by an inspection of the transcript ? True, in the district court the trial is conducted in the same manner as in the court below, and upon the same pleadings. But there is nothing in the pleadings to show that the action came into that court by appeal. On the face of the pleadings it would appear that the district court did'not havejfjurisdiction. So in an action appealed from a justice of the peace, “ the parties shall proceed in all respects, in the same manner, as though the action had been originally instituted in the common pleas.” Rev. Stats., Sec. 6587.

Ferguson & Ferguson, for plaintiff in error.

Troettáéc Tannehill, for defendant in error.

Moreover, an allegation that the action came into the court by appeal is the allegation of a conclusion. If such conclusion should appear from the petition, it should appear from the facts alleged, showing the jurisdiction of the justice, the execution of the appeal bond, and the filing of the transcript within the proper time, etc., so that the court might conclude that the action had been appealed.

A majority of the court are of the opinion that the court below did not err in overruling the demurrer.

Judgment affirmed.


author: Cox, J.

text:
    First Circuit — Clermont County O. Circuit Court
    April Term, 1885.)
    Beeobb Judges Cox, Smith and Swing.
    Hulick v. Higdon.

      Estate by the Ourtesy — Effect of Repeal of Sec. 3108, JR. S. O., by Law of April 14, 1884.
    Appeal from Clermont County Common Pleas Court.
   Cox, J.

The wife of Higdon was the owner, in fee simple, as her separate estate, of a tract of land in Clermont Co., O. She died about four years ago, leaving her husband and several children surviving her, all of whom are still living. After her death'the assignee of Bussing & Co., recovered ajudgment in the court of common pleas of Clermont county against Higdon and levied an execution on his life estate in said land. At the time of the rendition of said judgment and of the levy, sec. 3108, of the Revised Statutes, vol. 1, page 624, providing as to separate real property of the wife and the interest of her husband therein after her death, contained these words: “This section shall not affect the estate by the curtesy of a husband in the real property of the wife after her decease; but during the life of such wife, or any heir of her body, such estate shall not be taken by any process of law for the payment of his debts, or be conveyed or incumbered by him, unless she join therein with him in the manner prescribed by law in regard to her own estate.”

Ashburn & Hulick, for plaintiff.

Higdon, and Mallon & Coffey, for assignee of Bussing & Co.

On April 14, 1884. Ohio Laws, vol. 81, pages 209-10, sec. 3108 was repealed, and re-enacted, leaving out entirely the language above quoted, but providing in section 3112, that the provisions of section 3108 shall not affect any rights which vested prior to May 1, 1861.

On this state of facts, the court held — that up to the time of the repeal of section 3108, Revised Statutes, April 14, 1884, the assignee ot Bussing & Co., while he had a right to levy his execution on the said life estate of Higdon, could not enforce the same during the life of any heir of the body of Mrs. Higdon ; but that on the repeal of that section and its re-enactment without any such provision above referred to therein, the right to enforce said levy became absolute. And further, that the saving as to vested rights does not operate to prevent such enforcement. The effect of such legislation is to give a tenant by the curtesy a higher or greater interest in the land so held by him, for now he may sell or incumber it by mortgage, which he could not beiore, and the repeal of an act which exempted said estate from execution, or prevented the sale or incumbrance thereof, does not affect any vested rights of the tenant, or of the heirs of the wife.

Note — The law of April 14, 1884, in regard to curtesy, referred to in this decision, was repealed by an Act of April 16, 1885.


author: Cherrington, J.

text:
    (Fourth Circuit — Pickaway Co., O., Circuit Court
    Dec. Term, 1885.)
    Before Judges Cherrington, Bradbury and Clare.
    Goldsmith, Klaw & Co. v. Isaiah Hain & Dan’l Myers, Sr.
    When a party obtains goods by fraud, for instance by purchasing them when he is insolvent and does not intend to pay for them, and then executes a mortgage upon them to a creditor to secure a pre-existing debt, the mortgagee occupies no better position than the mortgagor as against the vendor of the goods, who rescinds the sale for fraud and replevies them.
    Error to the Court of Common Pleas of Pickaway County.

      This was an action in replevin, brought in the court of common pleas of Pickaway county against the said defendants, to recover the possession of a large amount of clothing, sold by the plaintiffs to Robert B. Hain and Daniel Myers, Jr., a firm doing business under the name and style of Hain & Myers.
    The petition alleged that on or about the 6th day of September, 1883, the said firm, by a pretended purchase, and by fraudulen' practices and pretenses, obtained possession of the said goodf and chattels; that the plaintiffsjrelying o$i the said misrepresentations, agreed to sell and did deliver the said clothing to the said firm of Hain & Myers; that the said firm never paid anything on the said goods; that at the time of the said pretended purchase the said firm was wholly insolvent and unable to pay for said goods, and ever since has remained insolvent; that at the said time said firm well knew themselves to be insolvent, and did not intend to pay for the said goods, but purchased the same with the intention to defraud the plaintiffs; that on the 28th day of September, 1883, the said firm of Hain & Myers executed and delivered to the said Isaiah Hain and Daniel Myers, Sr., certain chattel mortgages on said goods and chattels, and other property; that the defendants on the same day took possession of the said goods; that the said mortgages were executed to defraud the plaintiffs, without consideration, to secure pre-existing debts, and to indemnify the defendants on account of pre-existing debts.
    That before the commencement of this action the plaintiffs rescinded the said pretended sale and demanded said goods.
    The defendants in their answer admitted that the said chattel mortgages on the said goods and chattels were executed to secure pre-existing debts, and to indemnify the defendants as sureties against pre-existing debts; but they denied all the allegations in said petition in regard to fraud and want of consideration.
    The case was tried by a jury before the Honorable George Lincoln.
    The court charged the jury as follows':
    1. The plaintiffs, in order to- recover in this action, must establish by a preponderance of evidence two propositions; the first of which is, that the firm of Hain & Myers, the mortgagors, purchased these goods by either fraudulent representations of the pecuniary condition, or a fraudulent conceal-; ment of that condition. If you should find the plaintiffs have failed to make out their case, that there was fraud in the original purchase of these goods, your verdict should be for the defendants, and you need go no further.
    2. But if you find that these goods were purchased through fraud, without any reasonable expectation of tíél 'g able to pay for them, then you will proceed to inquire whether or not the chattel mortgages given the defendants in this case, and their possession of the goods by virtue thereof, were transactions made in good faith, either to pay debts which the firm may have owed the defendants or to secure them against loss upon any obligations on which they may have been security for this firm.
    3. If you find for the plaintiffs upon the first proposition, and that it has been shown you, by a preponderance of the testimony upon the second proposition, that the chattel mortgages and possession of these goods by Isaiah Hain and the elder Myers were taken for the purpose of defrauding and cheating the plaintiffs out of the goods they had sold to Hain & Myers, then your verdict should be for the plaintiffs.
    4. Fraud generally rests upon the intent of the parties, and such intent is an operation of the mind concealed from view; it is, therefore, proved by the circumstances surrounding the transaction, and is not susceptable of being proved by direct and positive testimony. But such circumstances and acts of the party must be of such a nature as to satisfy your minds by a preponderance of the testimony that the intent was fraudulent, and the acts done by the parties were intended to deceive and mislead, as for instance, when a person purchases goods and it is shown from facts and circumstances that he could have had no reasonable expectation of being able to pay for them, it is equivalent to an intention not to pay.
    5. But where the purchaser intends to pay and has reasonable expectation of being able to pay, the contract is not fraudulent, although the purchaser knows he is insolvent, and does not disclose it to the vendor, who is ignorant of it.”

      The plaintiff requested the court to charge the jury as follows :
    1. “If the jury find that Hain & Myers, at the time they purchased the goods of the plaintiffs, made the said purchase, with the intention on their part not to pay for them, then the purchase was fraudulent and void as between the said firm of Hain & Myers and the plaintiffs, and if the jury find that at the time of the said purchase the said firm had no reasonable expectations of being able to pay for the said goods, that is equivalent to an intention on their part not to pay for them.” (The above propositions were given to the jury by the court.)
    The plaintiffs further requested the court to give the following charge to the jury:
    “ If the jury shall find that' the mortgages executed by the said Hain & Myers to the said defendants, or either of the said mortgages executed to them or either of them, was executed to secure a pre-existing debt or debts, and for no other consideration, then the said defendants are not to be regarded in the light of bona fide purchasers, and took no greater or better title in the said goods than the said firm of Hain & Myers did.”
    But the court refused to give such charge, to which the plaintiffs excepted. The plaintiff also excepted to the charge of the court as given in the second proposition.
    The jury returned a verdict for the defendants. The plaintiffs made a motion for a new trial, which was overruled, and a bill of exceptions taken.

      Page, Abernethy & Folsom, for plaintiffs,
    insisted that the refusal of the court, to charge as asked, and the charge as given, were erroneous, because it being admitted that the mortgages were made to secure pre-existing debts, and as indemnity against pre-existing debts, the mortgagees occupied no better position than the firm of Hain & Myers, and were not entitled to the protection afforded in equity to bona fide purchasers. They cited: Lewis v. Anderson, 20 Ohio St., 281; Roxborough v. Messick, 6 Ohio St., 448; Goddington v. Bay, 20 Johns., 637; Root v. France, 13 Wend., 570; Woodburn v„ Chamberlain, 17 Barb., 446; Bump on Fraudulent Conveyances, 477.

      Clarence Curtain, and Smith & Morris, for defendants,
    cited numerous cases, which have not come to the hands of the reporter.
   Cherrington, J.

The plaintiffs in this case requested the court to charge the jury in regard to their finding that the mortgages were given to secure pre-existing debts. This, we think, was unnecessary, because it was admitted in the pleadings that the mortgages were made for that purpose. But if the plaintiffs chose to submit to the finding of the jury, a fact that was admitted in the case, it was not prejudicial to the defendants. The instruction requested, we conceive, ought to have been given, for we have no doubt as to the correctness of the proposition that a mortgagee, to secure a pre-existing debt, occupies no better position than his mortgagor. But the court below went further, and undertook to give the jury instructions on the same subject-matter, and that portion of the charge does not lay down the rule correctly. Besides, it was confused and embodied several matters in regard to which they were instructed to enquire ,and make a finding, and yet it failed to tell the jury what they should do in case they found one way or the other upon the matters submitted to them.

It was also clearly implied in the instruction given, that a mortgagee to secure a pre-existing indebtedness stood in the light of a bona fide purchaser, for value, and could hold the property.

We think this instruction had a tendency to'mislead the jury, and for these reasons the judgment of the court below is reversed.


text:
    (Second Circuit — Franklin Co., O., Circuit Court
    January Term, 1886.)
    Before Williams, C. J., and Cox and Shtadox, J. J. (Judge Cox, of the Mrst’Circuit, taking the place of Judge Stewart.)
    Wm. E. Horn v. City of Columbus, George Beck, Treasurer Franklin County and ex-officio Treasurer of City of Columbus, and Columbus Paving Company.
    When, in improving a street, the council has determined, under Bev. Stats., sec. 2303, pt. 7, that the contract price shall be paid in assessments, the contractor, on the completion of the work, and its acceptance by the city, is entitled to have the same assigned to him.

      Such assessments are the individual property of the contractor, and neither he, nor the city, has a right to have them placed on the tax duplicate for collection. The only remedy given the contractor by the statute *' is, that “ suits to recover or enforce such assessments may be brought in the name of the corporation.”
    AppeaU from the Court of Common Pleas of Franklin County.
   Cox, J.

This case is heard (together with five others) for an injunction to prevent the treasurer of Franklin county from collecting on the tax duplicate, assessments made for re-surfacing, patching and repairing Town street in the city of Columbus. The plaintiff alleges a great many errors in the proceedings of council in the passage of the ordinance, in the publication, and in the making of the contracts, many of which are unnecessary to decide here. The petition avers, and the answer admits, that the contractor was to receive in payment for work and material the assessment on the property, and admits that the assessment was in accordance with the contract, turned over to him, the contractor, and the city council certified the assessment to the county auditor to have the same put on the tax duplicate, and it was so put on the duplicate, but denies that such action in putting the same on the tax duplicate was illegal. It is admitted the Columbus' Paving Company expressly agreed that the city council shall not in any event be liable to the party of the second part for any work or expenses of the work or materials furnished under the contract, except for so much as is provided in the ordinance under which it was done, but that said costand ex1 pense should be collected by said party of the second part from the property owners in accordance with the provisions of said ordinance, and that the party of the second part agreed to release said city council from'all liability, and should rely only upon such assessment; that on the 11th day of November, 1881, after the passage of the ordinance of assessment, the city delivered to the contractor, the Columbus Paving Co., the assessment sheet for said improvement, and thereupon the said Paving Company executed a receipt for said assessment, and a release to the city from all liability to pay the cost and expenses of such improvement, or any part thereof, and delivered the sanie to the said city. After this receipt was delivered the assessment was turned over to the city auditor — by the city council — and placed upon the duplicate to be collected from the abutting property as provided in sections 2295 and 2296, Rev. Stats.

It is claimed on the part of the plaintiff that this action was illegal; that the city having turned over the assessment to the contractor, and the contractor having receipted in full satisfaction of his claim against the city, it then became the private property of the contractor and could not be put upon the duplicate to be collected by the public officers as a public tax. The statute, section 2303, pt. 7, authorizes the council to pay the contractor in the assessment, and when such contract is made, the contractor becomes the equitable owner of the assessment as soon as the work is done and accepted by the city, and is entitled to have the same turned over to him for collection, and he may take steps to collect it, either by receiving it personally from the lot owner or by suit in the name of the corporation. The city, therefore, has no control over the assessment when the work is accepted, except to turn it over to the contractor. It is.true the statute, section 2295, Rev. Stat., gives authority to the city to order the assessment to be certified to the auditor and placed on the tax duplicate for collection with ten per cent, penalty as other taxes, but this can only be done while the city is the owner of the assessment and entitled to receive the money therefor. This is apparent from section 2296, Rev. Stat., which provides that when assessments are collected by the county treasurer, they shall be by him paid over to the city treasurer, and be applied by the council only to the purposes of the improvement for which they were made. The collection of this assessment by the county treasurer would involve two conditions which the statute never contemplated; first, to make the officer the agent of the contractor to collect his individual debt; second, to put into the city treasury money belonging to the contractor, until such time as the city council should proceed by ordinance to direct it to be paid to the person to whom it belonged. The statute giving the city authority to pay in assessments, goes no further than to afford the contractor, as a remedy, the right to use the name of the corporation in enforcing the collection. It is unnecessary to pass on any of the other questions raised, as the assessment being illegally on the tax duplicate, can not be collected by the treasurer, and the injunction will therefore be made perpetual.

Lorenzo English, for plaintiff.

W. O. Henderson and A. A. Krum, for Columbus Paving Co., and James Qaren, for the City.


author: Seney, J.

text:
    (Third Circuit — Defiance County, O., Circuit Court
    March Term, 1885.)
    Before Judges Beer, Moore and Senet.
    John F. Deatrick v. The City of Defiance.
    1. In an action brought by a city organized under the laws of Ohio, it is not necessary that its petition should be signed by the city solicitor as such officer.
    2. It is not necessary that an action on behalf of such city should be brought by the city solicitor.
    3. A city suing for a claim formerly due a village, from which it has been advanced to such city, will not be required, on motion, to set out in its petition the proceedings by which said village was advanced to a city.
    4. A mayor of a city in an action against him for the amount of fines, licenses and forfeitures collected by him, can not offset against such claim the amount of his uncollected costs on the mayor’s docket.
    5. If a mayor does present to the city council an account charging such uncollected costs to the city, and crediting it with the amount of fines, licenses and forfeitures by him collected and not paid over, and obtains an order from the city council for the payment to him of the excess of such costs over the amount so collected by him, such action of the city council will not be a bar to the recovery by said city of the full amount of said fines, licenses and forfeitures from said mayor.
    Error to the Common Pleas Court of Defiance County.
   Seney, J.

The city of Defiance filed its petition in the court below, in which it avers that it is a city advanced from a village to a city under and by virtue of the laws of the state of Ohio, un: der its name of The City of Defiance, that John F. Deatrick was mayor of the village, also mayor of the city, that by virtue of his being mayor there came into his hands money and property belonging to the city and village in the sum of $648.83, this sum being fines, forfeitures and licenses, collected by said Deatriek as mayor; that Deatriek refused and neglected to pay the said money, although often requested so to do, and the city prays judgment against the said Deatriek for the amount of this money withheld. To this petition a motion was filed by the defendant to strike the petition from the files, for the reasons: first, that the city solicitor did not sign the petition; and second, that the city solicitor did not bring the suit. This motion was overruled and exceptions taken by the defendant Deatriek.

Another motion was filed to make the petition more definite and certain; that the city set out in its petition the proceedings by which the said village was advanced to a city; that the city set out in its petition how it succeeded to the rights and came into possession of the property of the village. This motion was also overruled and exceptions taken by the defendant. The defendant then filed an answer, a general denial, and on the issues thus made it was tried to a jury in the court below, and at the request of the defendant Deatriek a special verdict, as well as a general verdict, was rendered, both being in favor of the plaintiff, the city of Defiance. A motion for a new trial was filed by the defendant to set aside the verdict, on the ground that the general verdict was against the evidence, and that the answer to the first question submitted to the jury in the special verdict relating to the population of the village when it was advanced to a city was against the evidence; that the second proposition, in reference to the number of inhabitants of the village at the time it was advanced to a city was against the evidence. This motion for a new trial was overruled and judgment rendered on the verdict. A petition in error was filed in this court, assigning for error that the court erred in overruling the motion to strike the petition from the files; that the court erred in overruling the motion to make the petition more definite and certain, and that the court erred in overruling the motion for a new trial. These are the errors assigned in this court for a reversal of this judgment.

On the first motion to strike the petition from the files, it was urged by counsel in this court that the city solicitor did not sign the petition, and to sustain this proposition, s.ection 1774 was cited by c.ounsel, which defines simply the duty of the city solicitor, “ he shall when required bring suit.’’ Sec: tion 1516 provides that a city' .or village or corporation may sue or be sued in. its corporate name.. .

Section 1775 simply defines the duties of the city solicitor. It does not authorize suit in favor of the city to be brought in the name of the city solicitor. • It just defines his duties as solicitor. The city, under another section, is authorized to employ other counsel than its solicitor. Section 1152 authorizes suit in its own name. Who shall act as its attorney, whether its solicitor or other counsel, can in no way affect this right to bring action in its name. Who it will pay for its service, its council may say. Section 1552 provides that a city, may sue or be sued, and this power is conferred upon the .council and not upon the city solicitor, and against this motion is absolute. In the opinion of this court the action of the court below in overruling this motion was proper.

The second motion to make the petition more specific: That the city allege in its petition under what proceedings and how the city became advanced from a village to a city; and how the city became vested with the rights and property of the villagd. The averment of the petition is to the effect that it was a village; and it has been advanced to a city under the laws of the state of Ohio under the name of The City of Defiance. This is an averment of fact, not a conclusion. The proceedings by which it was advanced would be evidence of this fact .and should not be pleaded. A suit brought in the name of a railroad company sets forth its organization — corporation under what state, etc., etc. In no instance the proceedings by which it became organized are set out in'the pleadings. When the corporation is denied, the manner in which it became organized is evidence and should not be pleaded. The same as to a partnership. Concerning the partnership of Smith and Jones, how they became partners, or how their partnership was formed, is not a matter of pleading. It is a fact, not a conclusion, and when that is denied by an answer, proof of the partnership — how and in what manner they became partners, is matter to be .proven. The motion to make the petition more specific was in the opinion of this court properly overruled.

Now astothe motion for a new trial because the general verdict was not sustained by the evidence. As to this — Deatrick was placed on the stand and testified that, as mayor, he had received these fines, licenses and forfeitures to the amount claimed in the petition. This, of course, supported the general verdict. Deatrick admitted collecting these fines, licenses and forfeitures. The special questions submitted to the jury were as to the population — what the jury found from the evidence as to the population of the village of Defiance when it was advanced to a city, if they found any proof on the subject. Of course to be advanced to a city, the population must exceed 5,000. Another proposition submitted to the jury is as to whether they found as a matter of fact that the city council settled with Mayor Deatrick, and in that settlement ninety-two dollars and some cents were, found due him.

To this they answer — “ Yes.” They answer as to the population — “ 5,000 and over.” They answered, “ that it had the requisite number of inhabitants to be advanced from a village to a city.”

The proceedings were regular in advancing the village to a city, and as I have stated, they answered that they found that a settlement existed. How the settlement existed, or how that question should be submitted to the jury, we are unable to see. There was no settlement pleaded. The defendant below did not plead any payment. His answer is simply a general denial of the averments of the petition, denying the fact that the mayor collected and retained money belonging to the city. There is no averment in the answer that a settlement took place between Deatrick and the city, and in the absence of pleadings, in the absence of that defense, we do not think the court was warranted in submitting any such proposition to the jury as it was not an issue in the case. Where a special verdict is requested it must be on the issues made in the case. And this was not an issue made in that case. The bill of exceptions disclosed how the claim was settled. It was settled by the council, if settled at all, by off-setting against these fines, licenses and forfeitures, certain unpaid costs in criminal cases on the mayor’s docket; in other words, costs accrued in the prosecution of certain offenders before the mayor, and to which costs the mayor was' entitled; but he being unable to collect these costs, amounting to over seven hundred and fifty dollars, from the various parties against whom they were adjudged and taxed, sought to off-set them against the amount of fines, licenses and forfeitures in his hands, and to obtain from the city council an order for ninety-two dollars and sixty-nine cents, the excess of said costs above said fines, licenses and forfeitures; which order was allowed by the council.

The evidence, as I have stated, disclosed that a settlement took place. That is the manner in which it was settled. This act was illegal on behalf of the council. Council-are not arbitrators or a court. It was the duty of the mayor under the law to pay 4hese fines, licenses and forfeitures to the city treasurer. That was his duty as an officer. If he had a claim against the city or village, he, like any other citizen,’should present it to the council for its allowance, and ask that it be allowed or rejected.

In no case would the council have the power to off-set his claims against the city, against his collections of, fines, licenses and forfeitures. These are to. be paid by the mayor into the city treasury. They go into a separate and distinct fund. Hence it shows, even if the claim against the city was legal, it was not the right of the council to off-set the one against the other. The statute specially provides that the mayor cannot recover any costs he fails to collect. The law provides by ordinance the amount of his salary, and that it shall be neither increased or diminished during his term of office. The law provides by ordinance for all costs beyond and exceeding a certain amount, and also provides for costs in case a judgment shall be rendered against the defendant not against the city. In no case is the marshall or mayor entitled under the statute to draw his fees out of the city treasury for costs he is unable to collect from the defendant; so that ’the act of the council, even if his claim was legal, in off-setting it against his collections, was illegal. The action of the court in overruling the motion for a new trial was proper, and the judgment of the court below will be affirmed.

Laity & Peaslee, for plaintiff.

N. G. Johnson and Henry B. Harris, for the city.


author: Beer, J.

text:
    (Third Circuit — Defiance Co., O., Circuit Court
    March Term, 1886.)
    Before Judges Beer, Moore and Seney.
    Dick Evans Arrowsmith v. Edward H. Gleason and Henry Hardy.
    Suit was originally brought in the common pleas by Evans, trustee of Dick E. Arrowsmith, then a minor, residing in California, against the defendants, on guardian’s bond. Within two years after the minor became of age, and more than four years after the final judgment in the common pleas, he commenced this proceeding in error in his own right.

      Held: That in all proceedings and suits of guardians and other trustees of minors, no.proceedings in error in the minor’s own name will lie after he becomes of age, unless brought within the time limited (two years) for other proceedings in error.
    Error to the Court of Common Pleas of Defiance County.
   Beer, J.

On the 4th day of December, 1870, Orlando Evans, trustee of Dick E. Arrowsmith, filed his petition in the court of common pleas of this county, against Edward H. Gleason and Henry Hardy, upon a guardian’s bond executed by Gleason as principal and Hardy as surety, in which bond they agreed that Gleason would, as guardian, conduct himself in all respects according to law. The petition alleges certain breaches, and prays for a judgment on the bond.

The defendant, Hardy, answered the petition, or amended petition, setting up several defenses, to all of which the plaintiff demurred. The court overruled the demurrer, and the plaintiff excepted to the ruling of the court overruling the demurrer. At the May term, 1880, the cause was heard upon the pleadings and evidence, a jury being waived, and the court found on the issues joined for the defendant, Hardy, and rendered judgment in his favor for costs.

The plaintiff, Orlando Evans, excepted, and on the 1st day of November, 1884, Dick E. Arrowsmith, the present plaintiff in error, filed his petition in error in the district court of this county, in which he alleges that since the rendition of the judgment, to-wit, on October 29th, 1883, he attained his majority, and presents this petition in error in his own right, alleging that the court erred in overruling the demurrer and rendering judgment in favor of the defendant Hardy. Hardy moved the court to dismiss the proceedings in error for the reasons following : That Dick E. Arrowsmith was not a party to the record in the court below; second, that the petition in error was not filed within two years after the judgment was rendered; third, the petition in error was not filed within four years after the rendition of the judgment.

Newbegin and Kingsbury, for plaintiff in error.

Q. H. Scribner and Henry Hardy, for defendant in error.

Section 6723 of the code, which was in force at the time of the rendition of this judgment in the court of common pleas, provides that no proceeding to vacate a final order shall be commenced unless within two years after the making of the final order, or in case the person who is entitled to such proceeding is an infant, within two years, as aforesaid, exclusive of the time of such disability. At the time the final judgment was rendered, the person entitled to commence the proceeding in error was the trustee. There can be no question but that the statute commenced to run against the trustee as soon as judgment was rendered (16 Ohio St., 417). Having commenced to run, it continued to run. The infancy of the plaintiff in error does not prevent the operation of the statute. This action in the court below was an action at law between the trustee and the defendants. It was not an action by the trustee against the guardian to compel the execution of a trust, but was, so far as the plaintiff in error is concerned, an action at law between the trustee and a stranger. The trustee was the plaintiff below, and he was the person entitled to the proceeding, and before the present plaintiff in error attained his majority, the action was barred as to the trustee; and the trustee being barred, the cestui que trust is also barred.

Motion sustained.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1886.)
    Befobe Judges Cox, Smith and Swing.
    W. H. Pope v. Martha Pollock.
    1. When an affidavit is filed with a magistrate under Rev. Stats., section 6578, to set aside a judgment by default rendered against a defendant in his absence, it is imperative on the magistrate to set it aside, if the affidavit sets forth a good and sufficient reason for the absence of the defendant, and he otherwise complies with the statute. The word “ may ” in the statute is to read as “ shall.”
    2. Error will lie for refusal to set aside a judgment in such case, and the reviewing court will pass on the sufficiency of the affidavit.
    Pope was sued before a magistrate at Wyoming, some ten miles from Cincinnati, on an account, and demanded a trial by jury. The case was set for trial at 6J o’clock, P. M. Pope was engaged in business in Cincinnati, his only means of reaching the place of trial being by railroad. Mistaking the hour of the train, he was unable to reach in time, but from the depot at Cincinnati telegraphed the magistrate that he would be out on the next train, some forty minutes later, and would waive a jury and try the case before him. The magistrate not receiving the dispatch before the end of the hour, rendered judgment against Pope by default in his absence. Pope within ten days filed an affidavit, setting forth his reasons for being absent at the trial, confessed judgment for the costs and asked that the judgment be set aside. This the magistrate refused to do. Error was prosecuted in the court of common pleas, and the judgment of the magistrate was affirmed. This proceeding is to reverse the judgment of the common pleas.
    It is contended, first, that under section 6578, Rev. Stats., it is entirely within the discretion of the magistrate to set aside the judgment, even if a sufficient showing be made, and seccond, that the affidavit did not show a sufficient reason for the abence of defendant from the trial.
   Cox, J.

We think the statute is imperative. Although the language is, 11 may set aside” yet that it should be construed as if written “ shall set aside.” The affidavit in this case, showing in our opinion a good and sufficient reason for the absence of the defendant at the trial, the magistrate should have set the judgment aside. Judgment reversed.

W. H. Pope, for plaintiff in error.

Reuben Tyler, for defendant in error.


author: Clark, J.

text:
    (Second Circuit — Franklin Co., O., Circuit Court
    Sept. Term, 1885.)
    Befob® Williams, C. J., and Shauck and Clabk, J. J. (Judge Clark, of the Fourth Circuit, taking the place of Judge Stewart.)
    John Brooks v. David Scobie.
    An appeal from the common pleas to the district court, prior to February 9th, 1885, and an additional bond given conditioned upon the judgment of the circuit court, as the successor of the district court, does not, under section 5222, of the revised statutes, vacate the report of a master commissioner; but the case stands for hearing in the appellate court, upon the exceptions to the master’s report, and for confirmation, modification, or vacation, as it stood in the court below, unless upon some equitable showing, the court permits additional testimony to be offered.
    Motion for a re-reference, on the ground that the report of the master commissioner is vacated by the appeal.
   Clark, J.

This is a motion on behalf of defendant, Scobie, to refer the case anew to a master commissioner, on the ground that the report of the master in the court below, was vacated by the appeal. It has been earnestly and well argued by counsel representing the respective parties, and is not free from difficulty. It presents a question of practice upon which, as far as we are aware, we have no decision of the court of last resort, directly in point. The action in the court of common pleas of this county was brought by Brooks against Scobie, to adjust and settle a partnership account, and for a judgment for any balance that might be found due him from Scobie. The petition avers the formation of a partnership between the plaintiff and defendant and one Thomas; the busmess‘to be carried on; the amounts to be contributed by each of the parties to the capital stock of the company; the different amounts each had contributed up to January 1,1877, when an inventory was taken and the interest of each of the partners in the assets of the firm ascertained; that at said time a further agreement was entered into extending said partnership to April 1, 1880, and particularly stating its terms; that in August, 1879, said Thomas withdrew from the firm, and sold, transferred and assigned all his interest in said partnership to the plaintiff; that the business was carried on thereafter by plaintiff and defendant as equal partners. That in 1880, the property of the firm, except its credits, was sold and converted, the debts paid and the partnership dissolved. That the said partnership was largely indebted to plaintiff, the amount of which indebtedness could not be ascertained without an account of said partnership. That defendant had collected claims due the said firm and had failed and refused to account for the same, either to said firm or to the plaintiff. That the plaintiff had frequently requested of defendant an account of his proceedings in the premises and payment of the amount due to him on account of said partnership transactions, but that he had failed and still fails and refuses so to do. Prayer for an account and judgment and other relief.

The answer of defendant, Seobie, admits all the alllegations of the petition, except he denies:

1. That at the time of said further agreement, of January 1, 1879, “ it was agreed between said partners, that in case of the death or withdrawal of either of them, the capital stock of said partner so dying or withdrawing shall not be withdrawn from said firm, but that he should receive his share of the net profits up to the time of such death or withdrawal, and interest upon his capital stock thereafter.”

2. Denies the alleged sale, transfer and assignment by said Thomas of his interest in said partnership to the plaintiff.

3. Denies that said business, after the time of said alleged withdrawal and assignment of said Thomas, was carried on by himself and the plaintiff as equal partners.

4. Denies that said partnership was largely indebted to the plaintiff.

5. Denies that he collected claims for which he refuses to ■ account; and alleges that all claims collected by him had been applied to partnership debts.

6. Denies that he had refused to render an account of his proceedings in the premises, and avers that he had always been ready and willing, and still was, to adjust and settle said partnership with the plaintiff.

By consent of parties the case was referred to a regular master commissioner of the court, to take the testimony in writing, in narrative form, upon the issues in the cause, and report the same to the court, and therewith his conclusions on the law and facts involved in said issues, without unnecessary delay.”

The master, in addition to the admissions in the pleadings, found, in substance, as conclusions of fact, the^ issues as claimed by Brooks, except the first and fifth.

He did not find specially on the fifth issue, but inferentially, that Seobie had not collected any claims that he had not accounted for. He found that Thomas was a partner until the 12th of August, 1879, and not after that time; and that at the date of his transfer to Brooks, he had drawn out of the partnership more than was coming to him, and consequently, had nothing to transfer. This finding rendered the first issue immaterial. He found the amount each partner had put into and drawn out of the partnership up to the time of the withdrawal of Thomas; that at that time a new partnership was formed by Brooks and Seobie in which each had as capital the amounts stated; that the business was continued by them as equal partners until the dissolution; that the assets were insufficient to pay the firm debts, leaving two or three small amounts unpaid; that Brooks drew nothing out of the new firm, but that Seobie drew out an amount stated, being a certain amount in excess of his capital, and of which amount a certain named sum was from Brooks’ capital. And as a conclusion of law, that Brooks was entitled to recover said last named sum from Seobie, with interest thereon for the time stated, and the master reported the testimony by him taken.

A motion was made to set aside the master’s findings and report, and grant a re-hearing, for various reasons therein stated.

March 4, 1884, the same was overruled, and after allowing Seobie credit for one-half of two partnership debts he had paid, and for which each was equally liable, and deducting the same from the amount, -with interest found by the master in favor of Brooks, the court confirmed the report as so modified, and rendered judgment for Brooks for the balance, with interest from the time to which the master had computed the interest, and that each party pay one-half the costs of the action.

On the same day notice of appeal was given by Scobie, which was perfected in time, and an additional bond given in this court.

The case is one of equitable cognizance purely, and upon the face of the pleadings the plaintiff was entitled to relief— to have an adjustment and settlement of the partnership account. This is not disputed. The contention is, that the appeal vacated, not only the judgment of the court, but the master’s report as well. It is conceded that the judgment of the court was vacated or suspended, by the appeal, but denied that the appeal vacated the master’s report. This is the question to be determined from the facts of the case and the law as we may find it to be.

In the case of Lawson v. Bissell, 7 Ohio St., 129, the supreme court held, that:

“An appeal from the common pleas to the district court vacates the report of the referees under the code; and the case stands for trial as if no reference had been made below.” Judge Swan, in delivering the opinion of the court, says:
“ Whether the report of referees is vacated by an appeal is not settled by any provision of law. The code must be construed on this question with a view to the laws in force relating to our system of practice.” * * * “ The referees are substistituted for the court and jury; and their province is to decide the facts of the case, if the facts only are submitted ; or both the facts and law of the case, if both are referred. Code, Sec. 283. The trial before the referees is conducted in the same manner as a trial upon submission.”
“ When the reference is to report facts only, the report has the effect of a special verdict; if the reference is of the facts and law, the facts and conclusions of law are stated separately, and the report stands as the decision of the court; and judgment may be entered thereon as if the action had been tried by the court.” * * * “It (the report) is a substitute for a trial in court. The finding of the facts is, in effect, the special verdict of a jury. The conclusions of law of the referees stand as the law decision of the court; and if not set aside, a judgment follows of course.”

Under this section (283) of the old code, the effect of the legislation as thus defined by the supreme court, was to make the referees report a part of the action of the court, and consequently, vacated by an appeal.

Under the code as originally adopted, there was no provision for the trial of issues of fact in any case by a master commissioner ; nor was there any authority to require a referee to reduce to writing and report the testimony to the court; but it wás nevertheless true, that section 611, provided for the appointment of master commissioners. But there was no doubt but “ that the several courts of the state, in cases in which neither party was entitled to a trial by jury, might, in accordance with the usages in courts of equity, have referred the casé to a master for the purpose of stating an account, or ascertaining some other matter, ancillary to the determination of the cause by the court, with instructions to report tile testimony, with his findings, to the court; and in such case an appeal from the judgment rendered on such report would not vacate the report, but would bring it up to the appellate court for confirmation, modification, or vacation, as it stood in the court below. 1 Ohio, 270. Such were the rules of practice under the code'previous to the passage of the supplemental act of April 13, 1867, S. & S., 579.” 25 O. St., 410.

This supplemental act, by necessary implication, provided, that any case might be referred by the court in which such cause was pending, to a referee, master commissioner or special master commissioner for trial; it further provided for taking testimony, reducing it to writing and reporting the same, with the findings, to the court, and declared the effect thereof, etc., “but nothing in this act shall be so construed as to prohibit any party from recalling any witness who may have testified, or from taking additional testimony.”

On March 30, 1868, section 611 of the code was amended, providing for the appointment of master commissioners, defining the office, etc., and providing:, “ That the court may, upon the motion of either of the parties, refer any action in which the parties are not entitled to demand a trial by jury, to a regular or special master commissioner, to take the testimony in writing and report the same to the court, with his conclusions on the law and facts involved in the issues, which report may be excepted to by the parties, and confirmed, modified, or set aside by the court, etc-”

This legislation was conflicting, and the supreme court, in Bell v. Crawford, 25 Ohio St., 402, pointed out the conflict between the several acts. That is, under the two sections of the Code referred to, the functions of a referee and master were kept distinct; the former was to try the case, the latter was to take the testimony and report his conclusions on the law and facts; a duty merely ancillary to the office of the court in the trial or hearing of the case. While by the supplemental act the court was by necessary implication, authorized to refer the cause either to a referee or master for trial. The court, in the case last referred to;'' works out the conclusion that under this legislation, where the “ main issues ” in the case are sent to a master for trial, his report on these issues is vacated by the appeal; but where the reference is for the purpose of stating an account, or ascertaining some other matter, ancillary to the determination of the cause by the court, the report is not vacated by the appeal.”

Such was the law prior to the revision of the statutes in 1880. Under that revision, Sec. 5213, Rev. Stats., defines the office of referee, and is substantially the same as formerly, Code Sec. 283, except that the referee shall reduce the testimony to writing and cause the witnesses to subscribe the same.

Sec. 5222, Rev. Stats., provides: “ The court, or a judge thereof in vacation, may, upon motion of a party, refer an action in which the parties are not entitled to a trial by jury, to a regular or special master commissioner, to take the testimony in writing," and report the same to the court, and therewith his conclusions on the law and facts involved in the issues, which report may be excepted to by the parties, and confirmed, modified, or set aside by the court.”

The provisions of the supplemental act of 1867, were not reenacted, except in so far as they may be found in Sec. 5267: “ Testimony taken in an action or proceeding, on the order of a court, by a referee, master commissioner, or special master commissioner, subscribed by the witness, and reported to the court by the officer, may be used as a deposition in the case.” That part thereof, before referred to, providing for the recalling of any witness who may have testified, and for the taking of additional testimony, and which had to be regarded in the decision in Bell v. Crawford, is not found in the section.

It appears clear, therefore, that under the present legislation, the court is not authorized to refer a cause for trial to a master commissioner, but that the office of a referee and a master is Icept distinct, as it would have been formerly, but for the supplemental act of 1867. Under the present legislation, the master is authorized to take the testimony in writing, and report his conclusions of law and fact. This is but ancillary to the decision of the court, and is not vacated or suspended by the appeal. The report is in aid of the court, and goes up, on the appeal, with the rest of the case to be confirmed, modified, or set aside by the appellate court the same as by the court below.

It may be noted, that by the amendment of 1885, O. L., p. 31, Rev. Stats., 5225, even the report of a referee is now in certain cases not vacated by the appeal.

In the case under consideration the reference, as before stated, was to a master commissioner to “ take the testimony in writing, in narrative form, upon the issues in the cause, and report the same to the court, and therewith his conclusions on the law and facts involved in said issues.” This was done in the court below. The reference strictly followed the statute. A motion was made by defendant for a “ re-hearing,” as called, and upon that motion the report of the master was in some respects modified, and in its modified form was confirmed, and a decree or judgment entered in accordance with the conclusions found by the master. The judgment of the court below modifying the report and entering the decree, is vacated by appeal, and is opened up for re-hearing in this court; but, as we hold, the masters’ report stands here with the same force and effect as when it was filed in the court below.

D. K Watson, for the motion.

Watson & Burr, contra.

Motion overruled.

(Note: This ease was followed in Milla v. Gibson, tried at the March Term, 1886, of the Circuit Court of Scioto County, before Judges Cherrington, Bradbury and Clark, of the Fourth Circuit.)


author: Baldwin, J.

text:
    (Sixth Circuit — Medina Co., O., Circuit Court
    January Term, 1886.)
    Before Judges Upson, Baldwin and Haynes.
    John Nye v. The State of Ohio.
    The act passed by the General Assembly of the state of Ohio, April 12, 1876 (Vol. 73 O. L., p. 321), entitled “an act to prevent gambling and the sale of intoxicating liquors at a place therein named,” is in violation of article 2, section 26 of the constitution of the state,^and is void.
   Baldwin, J.

In- this case Joh'n Nye was indicted and convicted at the September Term, 1885, of the court of common pleas of Medina county, of unlawfully selling intoxicating liquors in August, 1885, within two miles of Chippewa Lake in said county, said John Nye not being a physician.

The act under which he was convicted, was passed April 12, 1876, and is found in 73 Ohio Laws, page 321.

It reads as follows:

“Sec. 1. Be it enacted by the General Assembly of the state of Ohio, that it shall be unlawful for any person to set up, exhibit, keep, or use for gambling purposes, any gambling or gaming table, machine, device or appliance whatever, or to sell or otherwise dispose of any intoxicating liquor on or within a distance of two miles of Chippewa Lake, in the county of Medina; provided that nothing herein shall be construed to interfere with phycicians in their regular practice.
“Sec. 2. Any person offending against any of the provisions of the preceding section shall bee deemed guilty of a misdemeanor, and upon conviction thereof, shall be fined in any sum not less than ten, nor more than one hundred dollars, or be imprisoned in the county jail not less than five nor more than thirty days, or both at the discretion of the court, and the place wherein the offense was committed may on the conviction of the owner or keeper thereof, be shut up and abated as a- nuisance by order of the court.”

It is claimed that this act is a violation of the 26th section of article 2, of the constitution, providing that, “all laws of a general nature shall have a uinform operation throughout the state.”

In the case of Cass v. Dillon, 2 Ohio St., 617, it is said, “ The origin of this statute is perfectly well known. The legislature had often made it a crime to do in one county or even township, what it was perfectly lawful to do elsewhere, and had provided that acts, even for the punishment of offences, should be enforced or not in certain localities as the electors thereof respectively might decree. It was to remedy this evil, and prevent its recurrence, that this section was framed.”

So, in Lehman v. McBride, 15 Ohio St., 605, Under the former constitution laws having a general subject-matter, and therefore of a general nature, were frequently limited expressly in their operation to one or more counties to the exclusion of other portions of the state. As a consequence, on the same subject, there might be one law for Hamilton county, another for Franklin county, and still a third for Ashtabula county. This naturally led to improvident legislation, enacted by the votes of legislators who were indifferent in the premises because their own immediate constituents were not to be affected by it. To arrest and for the future prevent this evil, the provision in question was inserted in the present constitution.”

This clause has been the subject of frequent, debate and decision, and the differences of opinion have been great.

It is here said, on one side, that the phrase “ laws of a general nature ” means where the subject and circumstances provided for are such as to be of general interest. It is said on the other, that it means only those laws which, in fact, by their terms, do apply to the whole state, and that there have been judicial intimations to this effect.

If the last is the construction of the constitution, it means nothing, and is no limitation at all on the legislative power.

The constitution is the fundamental and most important law of the state, and should above all laws receive a fair ^nd reasonable interpretation. It must mean that, where the subject-matter is general, and the circumstances are similar, the samelaw should be provided by the legislature. Else th& constitution travels in a circle.

In State v. Powers, 38 Ohio St., 62, it is said that, “ Two-propositions at least involved in its construction, may be said to have been settled :

“ 1. That the general form of a statute is not the criterion by which its general nature is determined.
“ 2. That whether a law be of a general nature or not, depends on the character of its subject-matter.”

It is further provided in the constitution, that “ no license to traffic in intoxicating liquors shall hereafter be granted in • this state, but the general assembly may by law provide against the evils resulting therefrom.”

It was said in State v. Powers, that other provisions of the constitution recognized the subject of schools as of a general nature, and the foregoing provision would séem to be á similar recognition on the part of the framers- of the constitution.

That the regulation or prohibition of the sale of liquors is a subject of a general nature, appears from the history of legislation.

From very shortly after the formation of the state, there have been constantly upon the statute books of the state laws upon the subject.

In most other states such legislation appears. Parties have divided upon it, and the discussion of such questions has attracted the most lively attention of all political parties in this state. In our opinion, good sense and law unite in declaring the matter a subject of a general nature.

The case of Falk, ex parte, 42 Ohio St., 638, has been discussed by each side. Revised Statutes, sec. 1924, punishing any person found in a city of the first grade of the first class, or within four miles of it, with burglars’ tools in his possession, was said to be a law of a general nature, but local in form and operation, and therefore void.

It was said by the court that that section was confessedly and indeed palpably local, but it is not so palpably local as the act in question here.

It is claimed by defendant in error, that that decision was based on the ground that the crime provided against is malum in se, while it is said the act here furnished is not.

But the fact that the act was malum in se, was relied upon merely to show that a law about it must of necessity be of a general nature, of a subject-matter of general interest.

But it-is said by the state’s attorney that the supreme court in Burckholter v. Village of McConnellsville, 20 O. S., 308, sustained a prohibition in a single municipal corporation. But it is to be noted that that ordinance was passed by the village under am act of the assembly, which applied to all cities and incorporated villages, and that the constitutional limitation is upon the assembly.

This act of the assembly was similar in principle to the act of March 29, 1882, authorizing incorporated villages having within their limits a college or university, to provide against the evils resulting from a sale of intoxicating liquors therein, which was decided in Bronson v. Oberlin, 41 Ohio St., 476, to be a law of a general nature, and not repugnant to the constitution. The court say:

“ In the case of The State v. Parsons et al., 40 N. J. Law, 123, the principle is well stated, as follows: 1 A law framed in general terms, restricted to no locality, and operating equally upon all of a group of objects, which, having regard to the purposes of the legislation, are distinguished by characteristics sufficiently marked and important to make them a class by themselves, is not a special law, but a general law.’ ”

In the case already discussed, of Falk, ex parte, 42 Ohio St., 644, Judge Okey, delivering the opinion of the court, says: “ A statute, general in form, prohibiting the' sale of liquors in the immediate vicinity of any college, would perhaps be regarded as a general and therefore valid enactment in force throughout the state, although every county does not contain a college. And this is consistent with everything I have stated.”

E. L. Hessenmuéller and F. L. Gallup, for plaintiff in error.

J. Andrew, and Boynton & Hale, for defendant in error.

The same principle is recognized in the McConnellsville case, where Judge Scott, delivering the unanimous opinion of the court, and discussing with great brevity the constitutional question, says: “It is no ground of objection to the validity of prohibitory ordinances thus authorized, that the general laws of the state do not extend the prohibition to all parts of the state. Morality and good order, the public convenience and welfare, may require many regulations in crowded cities and towns, which the more sparsely settled portions of the country would find unnecessary.” Compare 41 Ohio St., 401. Judge Okey in the case of McGill v. The State, 34 Ohio St., 228, said : “ Under the power to organize cities and villages (const, article 13, section 6), the general assembly is authorized to classify municipal corporations, and an act relating to any such class may be one of a general nature.” Judge McIlvaine in the case of The State v. Powers, 38 Ohio St., 54, said that, “ the judicious classification, and discrimination between classes, will not destroy the uniformity required by the constitution.”

It is very evident that the law we are discussing in this case does not come within these rules, and for the reasons before given, we are of the opinion that it is unconstitutional and void.


text:
    (Fourth Circuit — Pickaway Co., O., Circuit Court
    Nov. Term, 1885.)
    Before Judges Cherrington, Bradbury and Clark.
    City of Circleville v. James H. Throne, Adm’r of Edwin D. Throne, dec’d.
    1. In an action for the death of a person, occasioned by the negligence of an agent of the defendant, the declarations of the agent made at a subsequent time are not competent for the purpose of showing knowledge on the part of the defendant, of the dangerous condition of the work he was doing at the time of the accident.
    2. A refusal to charge the jury that an employe who enters upon the performance of work, knowing its dangers, assumes the ordinary risks of such service, is error.

      Error to the Court of Common Pleas of Pickaway County.
    The plaintiff, in his petition, alleged that at the time of the accident, hereinafter mentioned, the said city was causing a certain street therein to be opened and constructed; that the said Edwin D. Throne was employed by the city as a common laborer for hire, at the said work; that in order to construct the said street, it was necessary to cut down and remove a certain hill; that the said Throne was assisting in cutting down the hill under the direction of the street commissioner, one Thomas Heiry. The plaintiff further alleged that the work was performed in such an unskillful, careless, and negligent manner, without any fault on the part of the said Edwin D. Throne, as to cause the said hill or bank to fall upon the said Throne, and' kill him..
    Upon the trial Mrs. Throne testified as follows: “ Mr. Heiry came to my house ” (this was about an hour after the accident and at some distance from the place where it occurred), “ I said to him, what an awful place to put men to work; he said: ‘Yes, it is awful. At first I did not want them to go to work; I wanted Throne to wait till Monday. Then I left the bank and went to see about the ditch; I was afraid of the bank; I had had a man to guard the bank all the time before that day, but'that day I had taken him away.’”
    This testimony was objected to by the defendant, but the objection was overruled and the testimony admitted, as the court said, for the purpose of showing “ that the city had knowledge of the dangerous condition of the bank.”
    A verdict was rendered against the city. A motion for a new trial was made, which was overruled and a bill of exceptions taken.
    Upon the trial, the court was requested, among other things, to charge the jury as follows: “ If the said Edwin D. Throne entered the employment of the city to perform the work of excavating the said gravel bank, and if he had knowledge of the kind of work he was to perform, then he assumed the ordinary risks and dangers of the service, and he accepted the .service subject to the risks incident thereto.”

      Page, Abernethy & Folsom, for the city:
    1. The testimony of Heiry was not res gestas, and was not competent for any purpose.

      2. The charge requested ought to have been given. 2 Wharton’s Ev., § 1209; Cortland v. Hockmier, 44 N. Y., 22; Packet Co. v. Clough, 20 Wallace, 540; O., C., C. B. Co. v. Mara, 26 Ohio St., 185; Wood’s Master and Servant, § 422.

      Festus Walters, for defendant,
    cited numerous cases, but the reporter is not in possession of them. As to the testimony of Heiry he referred to Parker v. Steamboat Co., 109 Mass., 449.
   Cherrington, J.

We are of the opinion that the testimony of Thomas Heiry was not competent. It is clear that it ought not to have been admitted as part of the res pesias, because it did not occur at the time of the accident, but was merely a narrative of a past transaction.

The testimony was clearly prejudicial to the cause of the city, as it contained an admission on the part of Heiry that the bank was in a dangerous condition; that he knew it; that he was absent at the time of the accident, and that the man who usually guarded the bank, had been sent away by him. It is easy to perceive that this testimony would be damaging to the city, and would seriously influence the verdict of the jury. It is argued that the testimony was competent to show that the city had notice of the condition of the bank. We are of the opinion that knowledge or notice can not be shown in that way. Notice is a fact to be proved like any other fact, by competent testimony, and not by hearsay or the declarations of a party not under oath. The case, cited from 109 Mass., is not like the present, and does not sustain the doctrine contended for. In that case the negligence charged was, that the defendants did not properly secure and tend the gangway plank by which passengers went on board the boat. Testimony that the attention of the agents or servants of the defendants was called to the insecure condition of the plank was competent to show such negligence.

It is claimed that the declarations of Heiry were competent as impeaching testimony. But the difficulty is that his declarations were not offered for that purpose, or in the proper manner. They were offered and admitted as testimony in chief, and for the purpose of showing notice. They could not be used as impeaching testimony, because the proper way would have been to ask Heiry himself, when he' came on the stand, and his attention had been called to the time and place, whether he' had made such statements. This course was not pursued.

As to the charge requested and refused, it appears to us to be good lg,w, and ought to have been given. The authorities cited by the counsel for the city sustain this position. Cooley on Torts, 551; Gibson v. Erie R. R. Co., 20 Am. Rep., 553; L. S. & M. S. R. R. v. Knittal, 33 O. S., 468.

For these reasons the judgment must be reversed.


author: Bradbury, J.

text:
    (Fourth Circuit — Pickaway Co., O., Circuit Court
    Nov. Term, 1885.)
    Before Judges Cherrington, Bradbury and Clare.
    Mollie C. Hulse v. Aristeus Hulse et al.
    A devise of lands to “A.” for and during the term of his natural life, “ with a gift over upon his dying under twenty-one,” will not he construed hy implication as a fee-simple in “A.”
    Error to the Court of Common Pleas of Pickaway County..
    This was a petition filed by Aristeus Hulse in the court of common pleas of said county, for the partition of lands. The defendant below, Mollie C. Hulse, filed an answer, denying the right of the petitioner and the co-defendants, James R. Hulse and Hepzibah Hulse, in the premises, and setting up the will of James Hulse, deceased, in order to show the right of the said Mollie C. Hulse to the said lands, and also setting up the will of Jonas Hulse, under which she claimed as his devisee.
    The principal question in this case was the construction of the devise to Jonas Hulse. The important parts of the will are as follows:
    I. “ I give and devise to my wife, Mary A. Hulse, for and during her widowhood, 203f A. of land with the appurtenances, in the Cable Survey, etc. (description omitted"). '
    “ I also give to my wife during her widowhood the interest or dividends of $5,000 stock I own in the Exchange Bank of Circleville, Ohio.
    “ I also give and devise absolutely to my wife all the furniture, clothing and household goods of which I die possessed.

      “ I also give and devise absolutely to my wife, 2 horses, 3 cows, that I may die possessed of, the choice to be made by her. I also give and devise absolutely my buggy and harness to her. The aforesaid bequests and devises to my wife to be in full and in¡lieu of any and all further claim upon my estate, whether of dower, year’s support or distributive share, and to be received by her as her full share and portion in my estate.
    II. “ I give and devise to my son Aristeus Hulse, his heirs and assigns, a tract of land about 4r¿ A., more or less (description omitted). Also to Aristeus Hulse, his heirs and assigns, all that small portion of land, being an acre more or less, lying south, etc. (description omitted).
    “ I give and devise to my said son Aristeus, and to his heirs, $1,000 of the stocK I own in the C., D. & L. turnpike. I also give and devise to my said son Aristeus, and his heirs, $100 stock I own in the Stock scales.
    III. “ I give and devise to my son James, for and during the term of his natural life, 335J- A. of land, more or less, and the same tract I bought of Wm. Hughes and wife. I also give and devise to my son James for and during the term of his natural life, 70 acres of land, etc. (description omitted).
    “ I give and devise said 335J acres with the said 70 acres of land, after the death of my son James, to his children and to their heirs, share and share alike, reserving, however, dower therein to the widow of my son James, should he die leaving a widow.
    IV. “ I give and devise to my daughter Hepzibah, for and during the term of her natural life, all those tracts or parcels of land by me bought of John Walke and wife, which has heretofore been in the use and occupation of my son James, as I suppose over 200 A. The land I bought of Walke and wife, not hereby devised to my daughter, being the land conveyed to my son Aristeus, and 70 A. occupied by myself. At the death of my daughter Hepzibah I give and devise the said lands, so given to her for life, to my grandchildren then living, and to their heirs, share and share alike, unless my said daughter Hepzibah should leave child or children, in which case the said land so willed to her for life I give and devise to her child or children and their heirs. I give to my said daughter Hepzipah $1,000 in money, to be paid to her by my executors as soon as convenient out of my personal estate.
    V. “ I give and devise to my son Jonas, for and during the term of his natural life, all the land I own in the Cable tract, south of the pike and the Dawson road; 203f A. thereof being subject to the life estate of his moth'er.
    “ I also give to my son Jonas, for and during the term of his natural life, 180 A.* of land, more or less, the same I bought of William Hurst. Also to my son Jonas for and during the term of his natural life 60 A. of land, more or less, the same I bought of John McDaniels.
    “Also to my son Jonas for and during the term of his natural life the undivided half of 381§ A. of land, being the same tract of land purchased by me of John Cradlebaugh, excepting 70 A. thereof devised to my son James.
    VI. “I give and devise to my daughter Effie Jane, for and during the term of her natural life, all that portion of the tract, of land bought of John Walke and wife not herein before devised, being the 70 acres, more or less, joining the Cable tract on the east.
    “Also to my daughter Effie Jane, for and during the term of her natural life, all of the Cable tract lying north of the turnpike and Dawson road.
    “Also to my daughter Effie Jane, for and during the term of her natural life, the undivided half of.308J A. of land, and the same land bought of John Cradlebaugh, excepting therefrom 70 acres herein devised to my son James and his children.
    VII. “ I give and devise to my son Jonas $5,000 of the •stock I own in the Pickaway county bank, to be paid to him on his coming to the age of 21 years.
    •“ I give and devise to my daughter Effie Jane $5,000 of the stock I own in the Pickaway county bank, to be paid to her on her coming to the age of 21 years.
    VIII. “ In the event that either my son Jonas dies before he reaches the age of 21, or that my daughter Effie Jane dies before she reaches the age of 21 years; in that case I will and devise, that the real estate herein devised to the one so dying shall go and be divided, share and share alike, between the survivor of said two, Jonas and Effie Jane, and my'other children; giving to said survivor and my other children life estates with reversion to their heirs in fee-simple. The said survivor of Jonas and Effie Jane to take share and share alike with my other children. And further, in the event of either Jonas or Effie Jane dying before reaching the age of 21, without lawful issue, I will and direct the said $5,000 of bank stock hereinbefore devised to the one so dying, shall go and vest in the survivor alone, to-wit, Jonas or Effie Jane.
    IX. “ I give and bequeath to the children of my son James $1,000 of my stock in the Pickaway county bank, the interest of the same to be paid for their use and benefit by my executors at the time of the dividends, and the said stock to be paid to them when the youngest shall become of age.”
    The testator further directed the executors to collect the debts due him, and after the payment of debts and expenses, the remainder was to be divided into five parts and paid to his five children, except as to his son James, the interest of his share should be paid to him, and at his death the said share to be paid to his children. He also provided for the disposition of his bank stock not devised and the $5,000 set aside for the use of his wife, all of which, after her decease, was to be divided among his five children, share and share alike, except that James should receive the interest on his during his natural life, and at his death the same to go to his children. By another clause he disposed of his library, and made a provision in case his widow did not accept under the will. He appointed guardians for Jonas and Effie Jane, and nominated executors.
    There was no residuary clause in the will, and the introductory clause was the statement, “I do make and publish this as my last will and testament.” The will was dated January 1, 1862, and admitted to probate November 29, 1862.
    In 1850 he conveyed by deed 300 acres of land to his son Aristeus.
    He was married twice, and had two children by his last marriage, Jonas and Effie Jane, who were about five or six years old at the time of his death. Effie Jane died after the decease of the testator under 21 years of age, and Jonas died at the age of 26.

      The decision in the court of common please was in favor of the claim of Aristeus Hulse to a share in the land.
   Bradbury, J.

In the court of common pleas this case was heard upon testimony as to the surrounding circumstances; there was a finding of the facts, exceptions thereto by the. plaintiff in error, and a bill of exceptions taken, setting out all the testimony. But we think the question that arises is presented in such a shape that the testimony throws very little light upon it. It is a question of construction of the will, the sole question being whether Jonas Hulse, by the terms of that instrument, took a life estate or a fee-simple. The testator had five children, three by the first marriage,.Aristeus, Hepzibah James R., who where all of age at the time of making the will. Aristeus and James were married and had children; Hepzibah was unmarried, and owing to her age, not likely to marry and have children. The finding of facts shows the testator was “displeased” with James and Hepzibah, and that fact is relied upon in the argument by the plaintiff in error as important. But we do not feel inclined to give it much weight. The term “displeased” is exceedingly indefinite, and while it is possible that the displeasure of the testator was deep-seated, lasting and justified by reasonable causes, on the other hand it may have been temporary, very slight and founded on trifling grounds, or mere whims. It seems that James was not a successful business man or good manager, and that Hepzibah at the time of her father’s second marriage was not willing to remain with him, and went to reside with her brother.

If the testimony as to this displeasure of the testator was competent at all, which we are inclined to doubt, it seems to have had no other effect upon the making of the will, than to have induced him to limit the interest devised to James and Hepzibah to life estates, and to provide carefully for their children if they had any. For any thing the court can see, the testator may have had, notwithstanding this displeasure, the most tender regard for James and Hepzibah; indeed he seems to have had such regard for all of his family, for he made careful and ample provision for all of them. It is claimed by the plaintiff in error, that the testator had a peculiar affection for Jonas and Effie Jane, who were the children of the second marriage, and' at the time of the making of the will were five and six years of age. It is not at all singular that children of that age would be the object of warm affection. But we cannot perceive that this fact, if it is competent testimony at all, which is disputed by the defendant in error, throws any light upon the construction of the will.

The testimony and the finding of facts have brought before the court many things that occurred after the execution of the will. But these facts and circumstances can not be taken into consideration in deciding the case before us.

The important question is, did the testator give to Jonas a life estate, or a fee-simple. In determining this question, we must look to the language of the will, for we find little assistance in extrinsic circumstances.

(The question arrises under sections 5, 6, 7 and 8 of the will of James Hulse, as printed hereinbefore, and the court proceeded to comment upon it.)

It will be observed that the testator, in his devise to Jonas, uses the words, “ for and during the term of his natural life,” repeatedly, as he had done in the respective devises to James R., Hepzibah, and Effie Jane. In the provision for his widow he made the devise of land to her during widowhood, and the bequests of the personal property he gave to her absolutely. The devises to Aristeus are to him and his heirs. He sometimes makes use of the terms life estate, and at other times fee-simple. It is clear from the will itself, that the testator understood the difference between a fee-simple and a life estate, and used these different' expressions advisedly. In express terms the devise to Jonas is a life estate, and it is not easy to use language upon that point that would be more clear and explicit. In the various devises of the will he makes use of the expression, “ for and during the term of his natural life,” four times in reference to the devise to Jonas; once in reference to the devise to Hepzibah; three times in reference to the devise to Effie Jane, and twice in reference to the devise to James R.; in all ten times.

It would appear to the ordinary reader of this will, if not to counsel learned in the law, that the testator meant what he said when he gave these lands to Jonas “ for and during the term of his natural life.” But it is claimed by plaintiff in error that the clause following the devise to Jonas and Effie Jane for life, indicate an intention to give Jonas a fee-simple by implication. In support of this construction, a large number of cases, beginning with the year 1500, and continuing down to the present time, have been cited and commented on.

A large number of these cases, indeed the most of them, were devises of a general or indefinite estate, and not of a life estate, and this fact distinguishes all those cases from the present one. In the devise of a general or indefinite estate the rule is:

“ If lands be devised to “A” indefinitely, with a gift over in the event of “A” dying under twenty-one, if he attains that age, he takes a fee-simple.”

In some instances, to be found in the reports, a devise of a life estate in the first instance, or in some part of a will, has been held to be a fee-simple by virtue of other clauses thereof, and in accordance with plain indications of the intention of the testator. That a life estate, given in one part of a will may be enlarged into a fee, or a fee-simple, given in one part of a will, may be cut down to a life estate, by expressions in some other part of the instrument, no one will doubt. It is sufficient to say, that none of the cases cited by the plaintiff in error are like the case before us. The case of Lippett v. Hopkins et al., 1 Gallison, 454, much relied on by the plaintiff in error, was a devise of an indefinite estate.

When the will of the testator had been written and was ready for his signature, suppose his attention had been called to the fact that the lands which he devised to Jonas were a life estate, and that he had not disposed of the remainder. Suppose the writer of the will had said to him, what do you intend to do with the undisposed of remainder in case Jonas reach the age of twenty-one years and dies subsequently? Do you intend that he is to have the lands in fee-simple ? What would have been his answer if this question had been put to him at that time? Judging from the scheme of the will, he would have answered, no. Jonas is not, in any event, to take a fee-simple. If he lives to the age of twenty-one years, his children, if he dies leaving children, shall take the remainder in fee. If he dies leaving no children, my other children shall take the remainder for life, and after their decease their children shall take the remainder in fee-simple. Or he might have devised the remainder of these lands in part to the children of Jonas, and in part to his other children for life, with remainder to their children. It is easy to conceive of a dozen ways in which the remainder in these lands might have been justly and reasonably disposed of in the testator’s family.

We find that the testator made most careful provision in regard to James and Hepzibah, because he doubted James’s capacity for business, and whether Hepzibah would marry, or if she married, whether she would \eave children. When we come to Jonas, we find the testator controlled by the same scheme.

Jonas was a child of seven years, and it is not possible that the testator could have the slightest idea whether he would make a good business man, or a spendthrift. The testator knew that this was a matter of great uncertainty in regard to any boy, and he hesitated to give Jonas so much money absolutely. Besides it is apparent that he doubted whether Jonas would live to attain twenty-one; or, if he lived, whether he would have children. The scheme of the testator induced him to withhold the fee-simple from Jonas.

As to supplying words, it is true that is done by the court in some instances; but the difficulty in the present case is to determine what words to supply. We are certain that we ought not to supply words giving Jonas a fee-simple, and if we supply words giving the fee to other persons, there are half a dozen ways in which such words may be supplied, all equally probable.

As long as there are other reasonable and probable ways for the testator to have disposed of this remainder, there is no implication, no necessary implication, in favor of Jonas. The most that can be said is, that he would probably have given these lands, after the termination of the life-estate, to the children of Jonas in fee. But such probability is very far from amounting to an implication.

Smith & Morris, and Harrison, Olds & Marsh, for plaintiff in error.

A. T. Walling, for James R. Hulse.

Page, Abernethy & Folsom, for Aristeus Hulse and Hepzibah Hulse.

The doctrine of implication is only intended to assist the court in finding out the intention of the testator; it is not an absolute rule of property. Where it does not point necessarily to the conclusion that the immediate devise of the estate is to take the fee-simple, it has no application. It never is applied in such a manner as to permit the first devisee to hold the life estate, and to give remainder in fee to his children or some other persom.

It appears extremely uncertain in the present case, how the testator would have disposed of the remainder, if his attention had been called to it at the time; but it is clear to us that he never intended to give it to Jonas.

It is a notable circumstance, that in the devise over, upon the death of Jonas or Effie Jane under 21, he gives the land to the survivor and his other.children for life only, and after their decease, to their children in fee-simple.

We have found no case like the present, and it would require a decision very much in point to justify the unusual construction claimed by the plaintiff in error.

Judgment affirmed.