text:
    PAYMENT BY GARNISHEE KNOWINGLY TO ONE WHO HAD ASSIGNED THE CLAIM.
    [Circuit Court of Logan County.]
    Etta H. Milligan et al v. Plymouth State Bank.

    Decided, February Term, 1904.

      Attachment and Garnishment — Payment by Garnishee Upon Order of Court — Where Garnishee Became Aware of Transfer of the Claim After the Order was Made, but Before Payment — Garnishee Still Liable to the Transferee — Title—Notice.
    1. A bona fide assignment of a chose in action passes a perfect title to the assignee without notice to the debtor, except to the extent that it is required notice be given to the debtor in order that he may not act ignorantly to his prejudice; failure of the asignee to give such notice is immaterial as against an attaching creditor.
    2. In an action in attachment the garnishee is not a proper party, but sustains the relation of a witness; and where an order is made upon him to pay, based upon his original answer, he may interpose any defense he may have against the action; and if knowledge of the transfer of the claim comes to him after the order to pay is made, he may by an amended answer set up a complete and valid defense by alleging a prior assignment of the claim with want of notice and consequent mistake in the original answer.
    3. Where a garnishee, before complying with an order to pay or assuming any liability, receives notice of a prior transfer of the claim, and thereafter voluntarily pays into court the amount so ordered, the fact of such payment will not constitute a valid defense, as payment pro tanto, in an action brought against him by the assignee of the claim.
    Mooney, J.; Day, J., and Norris, J., concur.
    Error to the Court of Common Pleas of Logan County.

       Affirming Plymouth State Bank v. Milligan, 2 N. P.—N. S., 274.

   In the original action defendant in error was plaintiff and plaintiffs in error were defendants. Their action was upon a note and mortgage. The note was dated July 5, 1902, for $588 with five per cent, interest from date, due on or before July 5, 1902, executed by plaintiffs in error to Ellen and Christopher G. Bollman. On October 25, 1902, the note was assigned for value to defendant in error by the payees. The prayer of the petition was to recover personal judgment on the note for the principal thereof with the interest and to foreclose the real estate mortgage securing the same.

The makers of the note answered and alleged that on July 3, 1903, one Jerome Hollopeter duly commenced an action against Ellen and Christopher Bollman, the payees of said note, before one Robert Dow, a justice of the peace of this county, and in said action an affidavit for.attachment was duly filed and the Milligans were made garnishees, and such proceedings were had in said action that on February 20, 1903, the plaintiff therein recovered judgment against defendants therein for $100 and costs, and on the same day said justice of peace ordered said garnishees to pay into court the sum of $112.50 to be applied on said judgment and costs, and, afterward, on June 23, 1903, said justice of peace made another order in said action, ordering and requiring said garnishees to pay into court $115.75 to be applied on the aforesaid judgment and costs, and, afterward, on July 18, 1903, in pursuance of said order of said justice of peace said garnishees did pay to said justice of peace the sum of $115.75. It is further stated that at the time of the commencement of the Hollopeter action ■and at all times thereafter until after the said payment, the said garnishees were not indebted to the said Bollmans in any “At the time of the said judgment before said justice of peace and of the order of said justice as aforesaid, for them to pay said money into court to apply on the claim and judgment of said Hollopeter, the defendants (the Milligans), nor either of them, had no notice or knowledge that the said note had been assigned by the payees thereof,” and that the assignment of the said note and mortgage was never recorded in the recorder’s office of Logan county, Ohio, where the mortgaged lands are situated. Wherefore said defendants aver that the payment of $115.75 in the Hollopeter action is a valid part payment of the debt in the petition described and that in consequence there is due upon said mortgage debt $502.87 and no more, which last-named sum. defendants tendered to plaintiff before the commencement of this action, which tender was refused, and which amounts defendants at all times since said tender have been ready and willing to pay. To this answer a general demurrer was sustained and defendants not desiring to plead further, judgment was rendered for plaintiff as prayed in the petition. To reverse this judgment this proceeding in error is now prosecuted.

In support of the judgment of the common pleas it is argued first, that the jurisdiction of the said justice of peace in the Hollopeter action was exhausted by the order made on the garnishees to pay of date February 20, 1903, and that the order of date June 23, 1903, is therefore invalid; second, that even if the justice of peace had jurisdiction to make the order still the order is not sustained by the • facts in the case and compliance with it does not amount to part payment of the note sued upon. We do not find it necessary to determine whether the justice of peace had jurisdiction to make the order upon garnishees to pay of date June 23, 1903. It must be conceded that as a matter of mere jurisdiction the justice of peace had power to make one order. It is not denied that on February 20, 1903, that officer had jurisdiction to order payment, if the facts in the ease warranted such an order. If now the second order is invalid for the reason that the first order exhausted any jurisdiction in that behalf then the first order was one that the justice of peace had jurisdiction to make. This must be so because an ineffectual attempt to exercise a conceded jurisdiction can not exhaust jurisdiction.

It seems necessarily to follow that as matter of jurisdiction the justice of peace had power to make the one order or the ether. If he had power to make the first order and not the second, the garnishees merely paid more than they were or could be required by the justice of peace to pay. If the second order was made in the exercise of jurisdiction the amount paid is proper as to amount. In either case the justice of peace hid jurisdiction to order some amount to be paid and as an amount was paid, the question is whether such payment was to any extent a part payment of the note.

The answer states a defense whether the amount paid shall be held to be a credit on the note for $110.50 as well as if it be held to be a credit for $115.75. Hence the correctness of the ruling on the demurrer does not depend upon the mere validity of the second order but does depend upon the validity of either order, and the effect of the compliance by the garnishees with the one that is valid, if either be valid, would be part payment, the extent of the validity in such case as to amount being the measure of the protection to defendant below.

•Defendants’ answer states in legal effect that at the commencement of the Hollopeter action against the Bollmans the latter did not in fact own any claim against the Milligans; the Milligans were made garnishees in the action and for want of any notice to the contrary they believed that they were indebted to the Bollmans upon the note described in the petition. It seems, although it is not directly stated in the answer, that the garnishees appeared before the justice of peace and made answer that they were so indebted to the Bollmans at the time of service of notice, and the justice of peace acting upon this answer of the garnishees ordered them to make payment as heretofore stated. After both the orders to make payment were entered and before any compliance therewith by the Milligans they received notice and acquired knowledge that at the time they were served with notice as garnishees in the action they were not in fact indebted to the Bollmans, but by reason of an assignment of the note by the payees the same was owned and held by the Plymouth bank.

Having such knowledge and notice the garnishees nevertheless complied with the order of the justice of peace and made payment in the Hollopeter action of $115.75 a part of the indebtedness evidenced by the note then owned and held by the bank. Were the Milligans under the circumstances authorized to obey the order of the justice of peace, and did payment in obedience to such order discharge pro tanto the claim against them owned in fact by the bank, are the questions in the ease. These questions have not been decided expressly by our Supreme Court and the side lights supplied by our own cases and the cases decided in other jurisdictions in which similar statutes to our own are in force must disclose the proper rule here.

The property sought to be attached was the property of the Bollmaus. This property was a debt alleged to be due or owing to the Bollmans by the Milligans. To secure this property and hold it to be applied in satisfaction of any judgment that might be recovered by Hollopeter in his action against the Bollmans notice was served upon the Milligans. The service of this notice did not confer upon the Milligans any right of property in the debt, nor any power of control of the debt, except in so far. as their own protection should require it, that they did not have before the service of notice upon them. The Milligans could not have waived the service of notice and entered their appearance as garnishees and by such action have given the justice of peace jurisdiction of the debt they owed. Hebel v. Insurance Co., 33 Mich., 400; Blake v. Hubbard, 45 Mich., 1 (7 N. W. Rep., 204); State v. Duncan, 37 Neb., 631 (56 N. W. Rep., 214).

“Garnishment is a compulsory novation which the law alone can initiate by the intervention of its own substantial appointments.
“If the garnishees had knowledge of the assignment of the debt and failed to make answer of the fact, such failure would not have affected the title of the assignee.
“The rights of an assignee can not be forfeited by action of a garnishee in the assignee’s wrong” (Johnson v. Dexter, 38 Mich., 695, per Cooley, J.) Nor by the inaction of the garnishee. Tabor v. Van Vranken, 39 Mich., 793, per Campbell, C. J.

It seems that the failure of the garnishees to give notice to the justice of peace of the fact of assignment can have no different effect in the attachment proceedings so far as the assignee is concerned, when such failure is caused by want of knowledge on the part of the garnishee, than when the failure is due to the negligence of the garnishee having, knowledge, unless indeed notice to the debtor of the fact of assignment is necessary to perfect the title of the assignee.

The note described in the petition is non-negotiable and the claim arising thereon is a mere chose of action. The claim however is property and the ordinary incidents of property attached to it. Among these incidents is the right of the owner to sell it and give title to the purchaser “without waiting for the consent of any other” person. The nature of the property is such however that notice of an assignment is required to be given the debtor in order that he may not act to his prejudice upon the presumption that the claim continues to be held by the original creditor. This notice is required only for the protction of the debtor and one consequence of it is the protection of the assignee against the equitable results of the action of the debtor without notice. Except as between the debtor and the assignee, and then only to the extent indicated, a bona fide assignment of a chose in action without notice to the debtor passes a perfect title to the assignee. As against one claiming the assignor as creditor the failure of the assignee to give notice of an assignment is immaterial, for the right of the creditor does not rise higher than that of his debtor, the assignee. Thaver v. Daniels, 113 Mass., 129; Williams v. Ingersoll, 89 N. Y., 508; Noble v. Oil Co., 79 Pa. St., 354 (21 Am. Rep., 66).

In Dix v. Cobb, 4 Mass., 508, 512, Parsons, C. J., says:

“An attachment creditor can not stand on a better footing than his debtor (if the assignment be not fraudulent as to creditors), and if he attaches any property of his debtor, it must be attached subject to all lawfully existing liens created by his debtor. And consequently if his debtor have no equitable interest-in a chose in action, the creditor can not acquire any by his attachment. Therefore the want of notice in the trustee (garnishee) will not defeat the assignee’s interest in this debt in favor of an attaching creditor.”

It follows, therefore, that defendants below can urge the want of notice to them of the assignment only if and to the extent that they have acted to their prejudice in the absence of notice.

They appeared and made answer as garnishees without notice of the assignment; and they were ordered to make payment before they received notice; they did not comply with the order until after notice of the assignment was given them.

In Secor v. Witter, 39 Ohio St., 218, it is said:

“The order of a justice is not a judgment charging the garnishee. It does not determine the ultimate rights of the parties. It can only be enforced by action as in other eases. In legal effect it is an assignment of defendant’s right in the claim to the plaintiff, and authorizes him to sue thereon in his own name. * * *
“In such an action the garnishee may interpose any offset •or defense he may have against the action, notwithstanding the order of the justice, and no judgment should be rendered against him that will not be a protection against the rights of third persons.”

It is not doubted that in many states the statutes make the garnishee a party in the attachment suit and the practice in ■such jurisdictions is to proceed against the garnishee in the ■original action and in a proper ease recover personal judgment •against him in that action. Such is not the practice in Ohio. To the attachment action the garnishee sustains the relation •of a witness (Sections 6500 and 6502, Revised Statutes); while an order to pay may be based upon his answer (Section 6503, Revised Statutes); yet his liability to the plaintiff in attachment may be enforced against him in the absence of or contrary to his answer (Section 6504, Revised Statutes).

The fact or the substance of the answer of the garnishee is therefore not of controlling effect upon any right or remedy ■of the plaintiff in attachment and we have seen that the action or inaction, of the garnishee can not of itself affect any right ■or impair any interest of the assignee. When Hollopeter commenced his action he sought to attach a debt due the Boilmans. There was in fact no such debt. Hollepeter thought there was, but he was simply misaken. The Milligans thought there was; they also were mistaken. The justice of peace upon consideration of the garnishee’s answer made an order, to pay the debt due the Boilmans into court. The justice of peace was mistaken. The effect of the order would be to transfer the property in any such debt if it had existence. The order was without effect; there was no debt to transfer.

At this juncture knowledge of the mistake reached the Milligans. The Milligans had then incurred no personal liability nor sustained any loss or prejudice by acting upon reliance of their mistaken belief. The assertion by the assignee of his real title to the debt would visit no loss, impose no liability, or in any manner prejudice any right of the Milligans. Hollopeter had in fact taken nothing by his attachment action and while he would be benefited by carrying out the mistaken order, he has no legal right to insist that the mistake should not then be corrected. If when informed of the assignment, the Milligans had refused to obey the order of the justice of peace, and if the plaintiff in attachment had brought suit to enforce it, the garnishees might “interpose any defense they may have against the action notwithstanding the order of the justice.” Can it be doubted that an answer stating the prior assignment, the want of notice, and the consequent mistake in the answer before the justice would be a defense to the action. We think not.

Hamilton Bros. and J. A. Price, for plaintiffs in error.

E. P. Chamberlain, for defendant in error.

With knowledge of this former mistake defendants below voluntarirly paid to Hollopeter a fund which at the time of payment they knew belonged to the bank and to which they must have known Hollopeter had no right or title. If loss results from this payment the loss in morals and in law should fall upon the Milligans and not upon the bank.

The court of common pleas so held and its judgment must be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    INJURY TO A GREEN BRAKEMAN FROM A PROJECTING SWITCH STAFF.
    [Circuit Court of Lucas County.]
    Lake Shore & Michigan Southern Ry. Co. v. George Fisher.

    Decided, January Term, 1893.

      Negligence — Railway Brakeman without Experience and Unacquainted with the Road — Struck by a Switch Staff and Injured — Finding of the Jury irt His Favor Upheld.

    F, a farm hand, without experience in the operation of trains, was employed as a hrakeman, and two or three days thereafter, while clinging to the side of a freight car in a moving train in the evening, was swept off hy a projecting swich staff and injured. The train was started while he was on a cut of cars which had been thrown onto a side-track, and was moving at the rate of three or four miles an hour, when his superior called to him to hurry and get on or he would he left. There was a light burning on the switch staff, which was located 100 or 150 feet from the point where he grasped the handhold on the car, to which he hung in an awkward way with his foot in the stirrup until the switch staff was reached and he wa's struck.

      Held: That F could not, in view of his inexperience and lack of knowledge of the road, he charged with notice as to the location of the switch staff or the danger which he was incurring, and that under all the circumstances the finding of the jury that he was entitled to recover should he upheld.
    Bentley, J.; Scribner, J., and Haynes, J., concur.
    Error to Court of Common Pleas of Lucas County.

       Affirmed by the Supreme Court without report (Railway Co. v. Fisher, 51 Ohio State, 574).

   This cause is in this court upon a petition in error to reverse the judgment of the court of common pleas upon a verdict rendered in favor of Mr. Fisher and against the railroad company, for personal injuries received by Mr. Fisher while in the employ of the railroad company as a brakeman, at Rockport, near Cleveland.

Mr. Fisher was a young man of thirty-one years of age, residing in Ottawa county, and was a farmer. He never.had been in the employ of any railroad company before, nor done any railroad business until January 17, 1890. At that time for some reason he seems to have left his farming occupations, and applied to the Lake Shore company for employment as a brakeman. He was employed by the company, and went to a place rejoicing in the name of “Whiskey Island,” near Cleveland, to begin his employment for the railroad company- — perhaps to get a good start. He got there, I believe, on January 18.

In doing some work his train passed through this town of Roekport; that seems to have been in the evening when he was there; and leaving Roekport in the night, or evening, he came west with his train on that day, the train being bound for Toledo. For some reason he left the train at LaCarne, and the train pulled out and left him there.

The circumstances are not detailed as to how that happened, only as it may be gathered from various statements in the record as to how it might have happened. He went home from LaCarne, and on January 20 started back to Cleveland on a freight train, and arrived at Roekport in the evening of January 20.

In the train upon which he was acting as head brakeman were a half-dozen cars of stone, which were to be left at Rock-port, or at least switched there; and the engine, after the cars had been properly uncoupled, backed these cars of stone upon the side-track, and while it is not exceedingly clear from the testimony, it would seem that this young man rode the cars on that switch and the brakeman stopped them.

Lie says it was dark, and he did not know whether there were any other cars on the switch or not, but fearing there might have been he had to be very cautious lest it might collide and knock him off and injure him. But he performed his duties upon these cars, and by the time he was ready to get off of them his train started to pull out of the station, or the place where it then was; and one of the employes upon the train, seeing him upon the ground and his train starting, told him to hurry up and get on or he would be left again.

Thereupon he ran to the train, came up to a box car at the side of which was an iron stirrup projecting below the car, as is usual, and, having his lantern upon his arm, he grabbed at the armhold and put his right foot in the stirrup. The train was bound for the east, and he was upon the north side of the train, and he approached one of the corners of the box car. The manner in which he attempted to get on, with his foot in that stirrup, would afford some light on the degree of experience and sense he had in getting onto the freight ear. The iron ladder of the car provided for brakemen to mount to the roof, was adjusted around the corner on the hind end of the box car, in the usual manner, and instead of putting his left foot in the stirrup, with his hand hold of the handhold, and spring around to the ladder, either from excitement or greenness, or in some way, it seems he caught or put his right foot there. The cars at that time were pulling out and were going perhaps three or four miles an hour at that time, and it being a down grade their speed was noticeably increasing.

At the place where he attempted to board this car in the manner indicated — or rather ahead of this place from 100 to 150 feet — there was a switch staff standing between the double tracks. Upon this upright switch staff was an iron flange, and above that and sitting upon the top of the staff was a lantern provided with green lights. The flange and the staff and the lantern came up higher than the lower corner of the box car. The switch staff was so arranged and placed there that when the flange was turned so that it should stand perpendicular to the cars that were passing along there, the edge of the flange would come somewhere from fifteen to twenty inches from the side of a box car.

Some persons saw Mr. Fisher as he caught onto the side of the car in that way. And instead of swinging immediately around to get upon the ladder at the rear of the car, he seems to have hung there at the side of the ear, almost at arm’s length, for some reason, with his lantern upon his arm. In the meantime his car was rapidly approaching this switch light, and two or three persons, appreciating his danger, hollored at him and warned him of the danger which they saw he was approaching. Mr. Fisher either did not hear the warnings given, or seems not to have understood them; at least he did not change his position until after the car had arrived at this switch staff and he was struck and knocked off the car, and run over, and injured.

Under circumstances of that kind the jury awarded him a verdict against the defendant railway company, it being charged that the company was negligent in thus placing the switch staff so near the passage of these cars as to endanger their employes, and that from that negligence the plaintiff below was injured.

It was claimed upon the part of the company that it was proper and necessary to place a switch staff in that position, and that it was usual along the line of the road; that the young man was warned when he entered the employment of the company to look out for switch staffs, among other things, and to generally look out for danger; that if he had looked ahead when he mounted this car he could have seen this green light and the switch staff, and would have escaped the danger, either by dropping off the car, not mounting it at all, or getting on at the other side; and that he was negligent in not paying any attention to the warning that he received, and that therefore he ought not to be allowed to recover damages against the company.

The testimony, as I have indicated, shows that this young man Fisher had no prior experience in railroading prior to his experience beginning on January 17. "We should gather from the record and all the testimony that he was perhaps what is ordinarily termed “green,” perhaps more so than usual.

The defendant in error in the hearing before us cited to us a great number of eases showing that courts in other states had sustained verdicts against a railroad company under similar circumstances; cases that hold that it was negligence for the railroad company to allow a structure to be placed so near the passage of the cars as to endanger their employes in getting on and off, and where it was expected they would get on and off — many eases that hold that it is not necessarily one of the perils which the employe of a railroad company assumes when he enters the employment of the railroad company.

On the other hand, counsel for the railroad company cited quite a large number of cases where it has been held that under the circumstances presented in those cases the employe could not lawfully recover. We have taken the pains to look up and consider all the cases thus cited by counsel for the railroad company, to see whether the cases therein considered were such as the one here at bar. I will very briefly indicate what we found the nature of those cases thus presented to be.

DeForest v. Jewett, 88 N. Y., 264, was a case where there were open ditches, plain and easy to be seen, along the railroad so that the employe could see them, and he had been employed some time; the court found that they were such structures and dangers that he either actually knew of them, or were such as he was bound to know from the employment that he had had around them..

In 99 Pa. St. is a case where there existed a coke bridge for wheeling over coke, and was made to extend over the railroad; and the employe in that case was riding on the top of a car and was struck by this bridge and injured. The court found in that case that from the number of times that he had passed there in his employment upon the train, he must be chargeable with knowledge or at least with notice of the bridge, and that he could not pass it in safety.

In 50 Mo. is a case which was also in regard to an overhead bridge. The court found from the record that the employe had worked there before, and under such circumstances he was chargeable with knowledge of the situation of the bridge and of its dangerous character.

Gibson v. Railway Co., 63 N. Y., 449, is a case of the depot extending over so that brakeman could not stand upright upon the top of a freight car, in the middle of it, and not be injured. And the court found from the situation there, and the knowledge of the employe, that he himself was negligent in assuming the position he did at the time the car passed under the roof, or so near the roof of the depot.

Wells v. Railway Co., 56 Iowa, 520 (9 N. W. Rep., 364), is also a ease of an overhead bridge, and this had been known to the plaintiff for many years prior to the accident of which he complained.

Smith v. Richards, 155 Mass., 79 (28 N. E. Rep., 1132), is a case of an engineer leaning far out from his engine for the purpose of observing the track or watching for signals, and there was a signal post so near that as the engine passed it, it struck him and injured him. The court in that case recite the fact, however, that along the line of his run there were quite a number of such obstructions so near the track, and that while perhaps it was not certain that he had actual personal knowledge of this particular post, yet he had knowledge of many such obstructions, presenting such dangers, and from his experience with those he was chargeable with notice that he might expect this post, and therefore he was negligent in not providing for his own safety in passing it:

Rains v. Railway Co., 71 Mo., 164, is also a casq of overhead bridge, and the court recites that the record shows that the person had passed under it, to and fro, a great many times, and that under such circumstances he must have known about it.

Clark v. Railway Co., 28 Minn., 128 (9 N. W. Rep., 581), is a case where an elevator roof projected in such a way as to hit a person riding along upon the cars of a railroad company. There it appeared that the plaintiff knew it would strike any person standing upon a car as he was standing, and that, although the railroad company might have been negligent in building or allowing the elevator roof to be used in such a manner, yet in the particular ease the man himself who was injured was chargeable with negligence.

In 39 Iowa, also cited, was a case where a brakeman coupled cars when they were going too fast. He was warned just before that, in the danger in so doing. He had knowledge of the situation of certain bumpers on the ears, and, in spite of the warning given him then and there, and in spite of his knowledge of the situation of the bumpers and that they might not hit each other sufficiently to stop the cars coming together, he undertook to couple them; and the court held that he was chargeable with notice, under such circumstances, that the one might override the other and be dangerous for him to attempt to couple them under such circumstances.

In fact, all these cases cited by counsel for the railroad company are cases where the court found that the injured employe either had actual knowledge or was chargeable with actual knowledge of the situation of these obstructions and the danger attending the passing of them. It appears that the mere fact that such dangers are along the line of the road does not necessarily impose the risk upon the employe who takes employment from the company under such circumstances; that is, that the dangers arising from these things are not necessarily such dangers attending the employment generally as he assumeso the risk of incurring. It becomes in each individual case a matter of knowledge, or such circumstances as charge notice upon the injured employe.

So, in this ease, we think the inquiry is narrowed down to this: whether this young man, Fisher, under the circumstances in which he was placed (his experience and all that) had knowledge of such an obstruction, or whether he had knowledge of such facts and circumstances as would charge him with notice, and to forbid his recovering.

Now, it is said that, at the time he mounted this freight ear, he might have seen this switch light — he might have seen the switch light if he had looked ahead. But we think it does not clearly appear that, if he had seen the switch light ahead, that he would have instant knowledge of the distance between it and the car when the car should reach it.

Consideration is also to be had of the situation under which he mounted the car. He was inexperienced; perhaps somewhat excited. He was told to hurry; he saw his train leaving, although he had been engaged in braking and switching the cars, as was his duty; and had completed that as soon as he could and started to take his train again; and yet, in the meantime, without any reference to him, the train had started on, and had already obtained a velocity of some four miles an hour. Under these circumstances, his superior told him to hurry up and get onto his train, or he would be left again. He did hurry up, and grabbed this oar handhold. He says that, almost instantly, it seemed to him he was struck by this switch staff and knocked off the car.

The testimony, on that feature of the case, shows that he might have been 100 to 150 feet away from it when he first took hold; and the train was going somewhat rapidly and increasing in speed. It is not certain that he did not have in his mind the danger to which he was exposed, and that, while he might have heard some one shouting, it conveyed no distinct and definite warning to him as to what it was necessary for him to do in order to escape any injury. In this respect, we think the case was fairly left to the jury to determine whether on not he was chargeable with knowledge and notice of the danger, and whether he was himself negligent, under the circumstances, in mounting the ear and remaining where he was.

The manner in which he put his foot into the Iron stirrup would necessarily have caused some delay, even if he knew the next movement he should make, and even if he knew the danger to which he would be exposed if he did not get around on the back end of the car; that is, by changing or swinging around and getting upon the ladder. The time that elapsed from the time he placed himself in that position till this switch staff was reached was very short at least, although the train may have run even 130 or 150 feet. It is a comparatively short time that would be required for it to reach the switch staff.

Now, this being the first time that he had passed along there, as is shown by the evidence, and his inexperience and want of knowledge, we think the jury were fairly warranted in finding that he really did not know the position of that switch staff, and that it would be going too far to say that he knew such facts and circumstances as absolutely charge him with the duty of knowing it was there and was dangerous.

He says he had seen switch staffs between the tracks at Elyria, but, so far as he had observed, they were much lower than this one and did not present the same dangers.

In view of the record in the case, we would not feel at all justified in setting aside the verdict of the jury upon this ground — that they should have found that it was the duty of this young man to have known the situation there, and should not have placed himself in a position of danger. It is said by the railroad company that it could not be charged with negligence in placing the switch staff there — that it was necessary to have it there. But, however that might be in fact, the testimony in this record would not indicate that it was absolutely necessary that it should be so situated. We are unable to say, from the testimony here, although the fact may be true, that it would not be entirely practicable for the tracks to be placed wider apart at that place, so that the switch staff could be placed further away from the cars. It is said that, if it is placed at a different place, it will necessitate a longer rod to work it; and, therefore, additional danger to employes and persons passing there. This is the statement of one of the witnesses for the rairoad company, while there is no explanation of how he arrives at that, or why it would necessarily be dangerous to place the switch staff a little further from the track. If the rod was longer, it would seem that the jury might have come to the conclusion that it could be made a little heavier and thus enable the switch staff to be operated to advantage a little farther off.

There is some testimony attempted to be produced on the part of the railroad company that there were other switch staffs along the line of this road substantially like this • one, and that, therefore, this young man was chargeable with notice that he might expect to .find them anywhere along the line. Now this record does not indicate that this young man had passed any such switch staffs. There was some general statement that they used switch staffs, somewhat of the general plan of this, along the run of particular witnesses, who so testified; but there was no pointing out of any particular places where such a switch staff was placed, or that it occurred in or along the line where this young man had passed.

We do not mean to say or hold that, as a matter of fact, it is and must be dangerous for a railroad company to maintain a switch staff of this character this near to the track or between two tracks so that they come this near to passing ears.

But from the record and testimony presented in this particular, we fail to find that it was the duty of the jury to conclude that that was a necessary and proper place to maintain such a switch staff.

As to the warning the company claim the young man had at the time he took the employment, it is shown by a written statement, introduced in evidence by agreement, as to what Mr. Fisher was told when he entered the employment of the company, the statement being substantially this: that he was a new man and was warned to look nut for overhead bridges, switch standards, etc., in making couplings.

Now, suppose a young man, without any knowledge in railroad matters, fresh from the farm where he had passed thirty-one years of life, and, hiring out to the railroad company, is told to look out for switch staffs. To him it would be scarcely any warning at all. If it were shown that he had been told, or knew, the line of railroad where he had to run, and that there were switch staffs coming so near that, if he should hang on the side of a car it would be apt to hit him, it would be a different matter; but the warning referred to would convey no adequate idea of the dangers to the young man.

As to the objection made to the charge of the court, and its refusal to charge, the railway company presented two requests to the court, the first being as follows:

“The plaintiff was in the defendant’s employ as a brakeman on its freight trains, and as such was engaged in the performance of a service that was hazardous and perilous; and while so engaged in the performance of his duties as such, it was his duty to be careful' and cautious himself, and on the watch and lookout for dangers; and if, whilst so engaged, he was negligent in the performance of his duties, and such negligence contributed to produce the injury, he can not recover.”

When the court came to consider this request, this was said: “We have charged, as we think, the first request: If the plaintiff himself was negligent in the performance of his duty, he can not recover.”

The only material difference, if it be material, between that the court did say and this request, is, that the court only said that it was his duty to be cautious, and that, if the plaintiff himself was negligent in the performance of his duty, he can not recover; while the additional statement is made in the request that he must be on the watch and lookout for dangers.

This matter was not specially argued before us, but it is presented in the record. We think that, for all the substantial purposes of the case, the material part of this request was given. If there was any particular stress to be placed upon this, to look out for dangers, it would amount to nothing in this case, except that the jury should understand that he was to look out for this particular danger. Whether he was to look out for this particular danger would depend upon his knowledge of the warning given him, and all the circumstances of the ease and the other matters to which his attention must be directed, and was a matter for the jury to consider.

The second request is:

“If, whilst engaged in his duties as a brakeman, it became necessary for him, as a part of his service, to go upon the side of a car of a moving train, it was his duty to look ahead in the direction the car was moving, to see if there was any obstruction or danger ahead which might imperil him, and if he neglected so to do, and was injured in consequence of such neglect, he can not recover.”

Now, it appears plain and direct in this record that he did not look ahead when he got on to this freight car, and if the court should have given this request, it would have been equivalent to saying that the plaintiff below could not recover in this particular action, because he did not look ahead.

We think it can not be said, as an absolute rule of law, that the plaintiff must look ahead under all circumstances. It is his duty to be cautious and careful; but whether he must look ahead or behind or to one side or down or up depends upon the particular situation in which he may be placed at the time. And when he was riding upon that car, in the position he then was and perhaps a little “green,” as I say, holding on to the outside of the freight car when the train was in rapid motion and gaining headway every minute, and he, being somewhat perturbed, he could not exactly understand how he was going to get out of his peril, and before he could gather his wits to determine whether he should look at his feet or around him and ahead of him, he may have been struck by this switch staff.

Emory D. Potter, Jr., for plaintiff in error.

Hurd & Scribner, for defendant in error.

We think, under such circumstances, it would have been going too far for this court to say to the jury that it was absolutely his duty before he got upon the car to look ahead for danger.

With that view of the case we will not disturb the judgment .below, and affirm the same, with a certificate that reasonable cause for these proceedings in error existed and no penalty will attach.


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    INTERSTATE COMMERCE AND MUNICIPAL LICENSE FEES.
    [Circuit Court of Coshocton County.]
    In re Oscar Julius.
    Decided, May Term, 1904.

      Interstate Commerce — What It Is — Goods Not Subject to State Taxation, When — License Tax, a Tax on Goods — And a Direct Burden on Interstate Commerce, When — Ordinance of Municipality in Conflict wit'h Section 8 of Article I of the Constitution of the United States, When.

    1. The negotiation of sales of goods which are in another state, for the purpose of introducing them into the state in which the negotiation is made, is interstate commerce. Such commerce is not subject to state taxation, even though there be no discrimination between it and domestic commerce. The sale in one state of goods manufactured in another state is interstate commerce and not subject to state taxation.
    2. A manufacturer of goods which are legitimate subject of commerce, who carries on his business of manufacturing in one state, can send an agent into another state to solicit orders for the products of his manufactory without paying to the latter state or a municipality within such state a license for the privilege of such soliciting to sell his goods.
    3. A license tax required for the sale of goods is in effect a tax upon the goods themselves.
    4. A license tax imposed by a municipal corporation within one state upon an agent of a citizen of another state, for the privilege of selling or seeking to sell his goods in th'e former state, is a direct burden on interstate commerce, and, therefore, beyond the power of the state and of the municipality thereof.
    5. An ordinance of a municipality of this state, under which a license fee is required from the agent of a portrait company residing in another state for the privilege of canvassing for orders for the copying or enlarging of pictures to be manufactured by said company in said foreign state and delivered to customers in said municipality, is in conflict with Section 8, Article I of the Constitution of the United States, and, therefore, void.
    Voorhees, J.; Donahue, J., and McCarty, J., concur.
   This is an application on the part of Oscar Julius to the judges of the circuit court of this county for a writ of habeas corpus. The petitioner was arrested upon a warrant issued by the mayor of the city of Coshocton, in the county of Coshocton and state of Ohio, based upon an affidavit charging that “said Oscar' Julius, on or about the 21st day of December, A. D. 1903, at the city and county aforesaid, unlawfully did violate the license ordinance of said city in this, to-wit, by convassing in the corporate limits of said city, for orders for the copying and enlarging of pictures in what is known as portrait photographing, which copying and enlarging was not to be the product of the hands of the said Julius nor was said work to be done within the limits of said city, but was to be done by the Chicago Crayon Company, a corporation under the laws of Illinois and located at Chicago, Illinois, of which said Julius was an employe, no license having been obtained from the mayor of said city by said Oscar Julius or said corporation, which act was contrary to the ordinance in such case made and provided.” To which affidavit the defendant demurred. The demurrer was overruled and exceptions taken. Thereupon the defendant entered a plea of not guilty, waived in writing a trial by jury and submitted to be tried by the mayor. Upon trial'he was found guilty as charged in said affidavit, and it was ordered and adjudged by the mayor that defendant pay a fine of five dollars and costs of prosecution, taxed at three dollars, and stand committed to the city prison until the fine and costs were paid, or discharged by due process of law. To which order and judgment of the mayor the defendant then and there excepted. Defendant filed his motion for a new trial, which motion was overruled and exceptions taken. Thereupon the defendant applied by petition to this court for a writ of habeas corpus, on the ground that he was unlawfully restrained of his liberty by reason of such conviction, fine and imprisonment, for the reason that the ordinance and the statute of the state under which he had been arrested, tried, convicted and sentenced, were in conflict with the Constitution of the state of Ohio, and with the Constitution of the United States. A writ of habeas corpus was issued by one of the judges of this court at chambers for the production of the body of said Oscar Julius before the circuit court in and for said Coshocton county, on the first day of its next term to be held at Coshocton, May 10, 1904. At said May Term of the circuit court the cause was submitted upon the petition, exhibits, and an agreed statement of facts.

After what has already been stated, it will be sufficient for the determination of the law of this ease to say, that from the agreed statement of facts it appears that the defendant was on the 21st day of December, 1903, canvassing said city of Coshocton, going from house to house, showing samples of portraits and soliciting orders for similar work to be sometime thereafter delivered and paid for; that he was acting as the agent and employe of the Chicago .Crayon Company, a corporation duly incorporated under the laws of the state of Illinois, and engaged in the making of portraits in oil, crayon, India ink, water colors and pastel, said portraits being made in the city of Chicago, Illinois, and sold by the agents of said company in various states of the United States, including the state of Ohio; that no license was procured by said defendant or said company from the mayor of said city of Coshocton, as required by its ordinance; that said defendant did not deliver any goods, wares, or merchandise for any purpose in said city of Coshocton, nor did he receive any money in payment for any such articles; that said portraits were not to be the product of said agent’s own hands, nor was the work to be done in the corporate limits of said city, but the work was to be done in the city of Chicago, Illinois, where said corporation is located; that said portraits when made were to be shipped from the city of Chicago to the city of Coshocton, and there, delivered to the persons ordering the same, and upon said delivery payment was to be made; that said Oscar Julius is a non-resident of the state of Ohio and is a citizen of the state of New York.

The arrest was based upon an ordinance of the city of Coshocton passed April 29, 1902, and known as Section 125 of the Revised Ordinances of said city. Said section is as follows:

“It shall be unlawful for any person, persons, firm or corporation to canvass within the corporate limits of the city of Coshocton, Ohio, for orders for the copying or enlarging of pictures in what is known as portrait photographing, except the same shall be the product of his or their own hands, and the work done within the limits of the city of Coshocton, without first procuring from the mayor of said city a license so to do, and shall pay for said license at a rate of not less than one dollar, nor more than twenty dollars per day, and any person, persons, firm or corporation who shall violate any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof before the mayor, shall be punished by a fine of not less than five dollars nor more than twenty dollars, at the discretion of the mayor.”

It is contended by counsel for the petitioner that the ordinance, as well as the act of the Legislature conferring licensing power upon municipal councils, Section 2669-6, Revised Statutes* of Ohio, upon which act the authority to pass such ordinance is based, are in conflict with that part of Section 8, Article I of the Constitution of the United States, which provides:

“The Congress shall have power * * * to regulate commerce * * * among the several states.” * * *

Counsel for the city contend that canvassing a city, showing samples of portraits and soliciting orders for similar work to be sometime thereafter delivered and paid for, although the canvasser is the agent and employe of a non-resident person or corporation, by whom tbe work is to be done out of the state of Ohio, do not come within the meaning of commerce as that word is used in the above section, and that the state, and by its authority, a city council by ordinance has the right to protect their citizens, laborers and markets against an invasion of such products.

In County of Mobile v. Kimball, 102 U. S., 691, 692, commerce is defined as follows:

“Commerce with foreign countries and among the states strictly considered consists in intercourse and traffic including in these terms-navigation and the transportation and transit of persons and property, as well as the purchase, sale and exchange of commodities.”

In Brennan v. Titusville, 153 U. S., 269, a maker of portraits and picture frames in Chicago, Ill., had sent his agent into the state of Pennsylvania to solicit orders for pictures and picture frames, by going personally to citizens and residents of that state. Upon receiving orders for pictures and frames the agent forwarded such orders to the manufacturer in Chicago, where the goods were made and shipped by him to the purchaser in Titusville by railroad freight or express, the express companies or the manufacturer’s agents collecting the price of the goods and forwarding the amounts to him at Chicago. The ordinance of the city of Titusville required that persons so employed in canvassing or soliciting in the city should procure a license from the mayor, paying therefor certain sums fixed by the ordinance, but providing that its provisions should not apply to persons selling by samples to manufacturers or licensed merchants or dealers residing or doing business in said city. The court held that the license tax imposed by the ordinance was a direct burden upon interstate commerce and was, therefore, unconstitutional and void.

It is not competent for a state Legislature or a municipality by ordinance to discriminate against such commodities or goods, or declare that they are not articles of traffic and commerce and by unfriendly legislation exclude them from the state. The sale and delivery in one state of goods manufactured in another state, by a citizen of that state, is interstate commerce. On this proposition it is sufficient to cite Cooper Manufacturing Co. v. Ferguson, 113 U. S., 727; Robbins v. Shelby County, etc., 120 U. S., 489; Horn Silver Mining Co. v. New York, 143 U. S., 314; Brennan v. Titusville, supra; Colt v. Sutton, 102 Mich., 324.

The decisions of the Supreme Court of the United States are controlling. They forbid the exercise by the Legislature or the municipality of the power claimed by the city solicitor in this case. Hence his construction of the statute and ordinance can not be maintained, because it would result in a conflict upon a question where the authority of the general government is paramount to the governments of the state. To give a state Legislature power to legislate in such eases requires an act of Congress to that effect. Leisy v. Hardin, 135 U. S., 100; Welton v. Missouri, 91 U. S., 275.

The police power is reserved to the states, and they have the right to regulate internal trade so as to protect the health and public welfare of the people, but this power can not be so extended as to encroach upon interstate commerce. "Whether any particular act does so encroach or not is a question for the courts, and in the determination of that question the Supreme Court of the United States refuses to be bound by the opinion of the state Legislatures or the state courts. If the act is in itself an encroachment upon interstate commerce, though expressed to be a regulation under the state police power, the federal courts hold it unconstitutional. Leisy v. Hardin, supra; Minnesota v. Barber, 136 U. S., 313.

The ordinance in question is not a police regulation, but is an attempt to prevent, or at least discourage, the importation and sale of goods manufactured in another state, and thereby protect citizens, laborers and markets within the limits of the municipality against such goods. If the municipality or its citizens are in a condition to require such protection, the appeal for relief must be made to Congress, which body alone has the power to legally grant such relief. In re Roher, Petitioner, 140 U. S., 545.

Charles B. Hunt and T. B. Roche, for petitioner.

Howard E. Hahn, City Solicitor, contra.

It is urged by counsel for the city to relieve this ordinance from these constitutional objections that the license imposed is not a tax upon the goods, but only a license fee charged as a police regulation, and, therefore, does not come within the constitutional inhibition. It is well settled that in legal effect the money paid for a license to sell goods is a tax upon such goods. Brennen v. Titusville, supra; Brown v. Maryland, 12 Wheat., 419; Welton v. Missouri, supra; Leloup v. Mobile, 127 U. S., 640.

In the case of Caldwell v. North Carolina, 187 U. S., 622, it was held that “an ordinance under which a license may be required from the agent of a non-resident portrait company, who received from such company pictures and frames manufactured by it to fill orders previously obtained, and after breaking bulk and placing each- picture in frame designated for it, delivered them to the respective purchaser, is invalid as an attempt to interfere with and regulate commerce.” We think this case is on all fours with the question here and is conclusive against the validity of this ordinance.

We are not required in this ease to pass upon the validity of this ordinance so far as it might affect citizens of our own state. We are disposing of the ordinance as one that interferes with interstate commerce, and for this reason we hold that it is in violation of Section 8, of Article I of the Constitution of the United States. The- conviction of the petitioner herein is wrong; the affidavit does not charge him with any act in violation of any law of the state or ordinance of the city, that could be enforced against him. The writ is allowed. The petitioner is dismissed from custody at the costs of the state. Petitioner discharged.


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    SUIT IN ATTACHMENT ON A PROMISSORY NOTE.
    [Circuit Court of Franklin County.]
    Oscar Orlopp v. Schueller, Administrator.
    Decided, October 23, 1903.

      Promissory Note — Suit in Attachment Upon — Administrator Holding an Undetermined Legacy — Made Garnishee — Jurisdiction of Probate Court is Interfered with Thereby — Common Pleas Court can not Order Administrator to Pay Money, Until — Jurisdiction not Lost by Failure to Make Order — Conflicting Bates in Petition— Purpose of Section 5522 Requiring the Nature of Claim to be Set Forth in an Affidavit for Attachment.

    1. A writing setting forth that, “I hereby certify to have received of D a loan for three months, $500,” with date and place of execution and name of maker, constitutes a promissory note upon which an action may be maintained.
    2. An attachment issued in a suit upon a promissory note is not insufficient in law because the date of the note is differently stated in the petition and the amended petition.
    3. An administrator may be made the garnishee in such a case where it appears upon the filing of his final account that the contingency of lack of funds to pay the legacy or a part thereof to the defendant is not likely to arise; such a process does not interfere with the settlement of the estate, nor is the legacy withdrawn from the custody of the administrator.
    Sullivan, J.; Wilson, J., and Dustin, J., concur.
    Error to the Court of Common Pleas of Franklin County.
   On January 8, 1902, defendant in error brought suit against plaintiff in error, in the Court of Common Pleas of Franklin County, to recover from plaintiff upon a certain paper writing, designated in the petition as a promissary note, averring the same to have been executed by plaintiff in error about the year 1875, in the sum of $500, payable to the defendant’s estate, and that he was unable to state the date at which said note matured or the rate of interest it bore, but that the same was past due.

It was further averred that plaintiffs, in 1878, removed from the state of Ohio to the town of Atcheson, in the state of Kansas, and is now, and ever since the year 1878, has lived beyond and without the jurisdiction of the state of Ohio; that through some inadvertance said note 'had been either lost or mislaid, but that, in a reasonable time, a copy thereof would be filed with the court. Then followed the averment that no payments had been made on said note; that there was due defendant in error on the same $500, with interest from 1875; that by the last will of Oscar Orlopp, late of Franklin county, deceased,» plaintiff in error was named as legatee; that the estate of said deceased testate was solvent; that the property bequeathed to plantiff in error was within the county of Franklin, state of Ohio. Defendant in error prayed for a personal judgment for amount of said note, and interest thereon from 1875.

On the same day, January 8, 1902, defendant in error filed an affidavit in the clerk’s office in which he set forth that he had commenced an action against the plaintiff in error in the Common Pleas Court of Franklin County, Ohio, upon a promissory note executed by plaintiff in error to the deceased, Daniel Deiss, for the sum of $500, with interest from 1875; that said claim was just, and said defendant in error ought to recover said amount and interest thereon from the year 1875; that plaintiff in error was a non-resident of Franklin county and state of Ohio; that affiant had good reason to believe, and he did believe, that Charles W. Haldy, administrator with the will annexed of the estate of Odo Orlopp, who died within said county of Franklin and state of Ohio, had property of the plaintiff in error in his possession liable to be attached in said action, consisting of money or other chattel property, and that the facts stated in said affidavit were true. Upon which affidavit the clerk of the common pleas court issued an order of attachment, and notice of garnishment to the said Charles W. Haldy, administrator.

On January 13, 1902, defendant in error filed an amended petition in the common pleas court. The amended petition set out a copy of the obligation averring that the paper writing was either a contract or promissory note, but the same paper writing referred to in the original petition. The amended petition sets forth a copy of the paper writing, which is in words and figures as follows:

“I hereby certify to have received of Mr. Dan Deiss, as a loan for three months, $500.
“Emillie Orlopp,
“Oscar Orlopp.
“Columbus, Ohio, August 12, 1872.”

On January 9, 1902, order of attachment and garnishment was served upon Charles W. Haldy, administrator of the estate of Odo Orlopp, deceased, by handing him personally a certified copy of same. Publication of the proceedings was made as provided by law. On March 14, 1902, the plaintiff in error filed a motion asking that said attachment be discharged for the several reasons set forth in said motion, appearing for the purpose only of making said motion, and without any intention of entering his appearance for any other purpose, or submitting to the jurisdiction of said court over his person.

This motion was overruled, to which an exception was taken by plaintiff in error, to which action of the court, in overruling said motion, plaintiff prosecutes error to this court. A bill of exceptions was taken, bringing upon the record all of the testimony produced upon the hearing of said motion. The garnishee made answer in the case March 18, 1902, and it shows that there will be in his hands about the sum of $1,500 coming to plaintiff on his legacy.

Whilst the motion sets forth several grounds and the same grounds in several different forms, there are but three insisted upon by plaintiff in error, in his brief. Counsel for plaintiff contends first, that the affidavit is insufficient in law to maintain an attachment because of the difference between the date of the instrument sued upon, as set forth in the original and amended petitions, and therefore a different date from which to compute interest; in other words, the attachment being issued upon the affidavit filed with the original petition setting forth a different date from that appearing in the amended petition, and a different date from which interest should be computed, the nature of the claim was not set forth in the affidavit. The statute requiring the nature of the claim to be set forth in the affidavit is for the purpose of determining whether it is of such a character as entitles the party to an attachment. In an action upon a promissory note, a party may have an attachment if any of the statutory grounds upon which it may be issued exists.

The date of the instrument does not determine its character. The instrument set forth in the amended petition is substantially in form the. same as referred, to in the original petition. It is evidently the same debt, and in form and substance it is a joint and several promissory note, and upon which either a joint or several action may be maintained. The affidavit, therefore, we think good.

Second. Counsel for plaintiff in error contend that a legacy, the amount of which has not been fully determined by a final account of an executor or administrator, can not be attached. Under this contention he claims that no legacy can be attached and the executor or administrator garnisheed. In support of this claim he cites a number of authorities. We are of the opinion that under Section 5531, Revised Statutes, an undetermined legacy in the hands of an administrator or executor may be garnisheed; that administrators and executors are included under the designation of “other” officers in the above section. When referred to in a number of authorities they are designated as officers of court. We refer specially to the case of Byers v. McAuley, 149 U. S., 608, 615, quoting:

“An administrator appointed by a state court is an officer of that court; his possession of the decedent’s property is a possession taken in obedience to the orders of that court; ff is in the possession of the court.”

Were it not for the section above referred to we would not be prepared to say that a legacy could be attached, especially if the amount of the legacy was undetermined. The answer of the garnishee shows that he will have, upon final settlement of the estate, about $1,500 to be applied to the legacy of plaintiff in error. We hold it is subject to attachment, citing in support of this holding, Stratton v. Ham, 8 Ind., 84, 85, and also Byers v. McAuley, supra, from which we quote “all remedies to which parties may be entitled against officers, not involving the withdrawal of the property or its proceeds from the custody of the officer and the jurisdiction of the court they may pursue.” The process given parties by Section 5531, Revised Statutes, does not withdraw the property from the custody of the officer or the jurisdiction of the court, or in any wise interfere with the proceedings of the probate court in the settlement of an estate, but is a remedy providing what a creditor may have to subject to the payment of a claim against a debtor who, upon a final settlement of an estate, may be entitled to receive money or property as a legacy. Upon the remaining question, that the court lost jurisdiction over the property because upon the answer of the garnishee it made no order as provided by Section 5550, Revised Statutes, we are of the opinion that the above section does not apply, where property is garnisheed in the hands of any one of the officers designated in Section 5531, Revised Statutes.

The service of process of garnishment upon an officer binds from date of service only such interest in the funds in his hands as may be determined as belonging to the debtor, by the court, under whose orders the officer holds such funds. The court issuing the order of attachment, has no power to order the funds taken from the custody of the court holding it. The order is limited to the amount that may be found coming to the legatee on distribution upon final settlement of the estate. Such order binds only such interest in the funds as may ultimately be found belonging to the debtor. The money being already in the custody of an officer who has given bond, the undertaking required by Section 5550, Revised Statutes, has no application.

The court issuing the order of attachment is without authority to require any part of the property or money, held by an officer under process of the court whose officer he is, paid into court issuing the order of attachment until a final adjudication by the court having custody of the funds. No bond could be required of such officer because the extent of the debtor’s interest can not be known until a final adjudication by the court having custody of the funds. The court below acquired no jurisdiction over the person of the plaintiff, but did acquire jurisdiction over a thing and did not lose it. We find no error of record prejudicial to plaintiff in error and the judgment is affirmed at costs of plaintiff in error.

A. H. Johnson and Henry Elliston, for plaintiff in error.

Gumble & Gumble, for defendant in error.


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    THE POWER TO MORTGAGE AND THE POWER TO SELL.
    [Circuit Court of Lucas County.]
    The Security Trust Co. v. The Merchants & Clerks' Savings Bank Co. et al.
    Decided, June 11, 1904.

      Securities Placed in Trust — For fhe Support and Education of Children — Right to Sell Includes the Right to Mortgage — Trustees and Trust Estates — Guardians.
    K placed, certain stock in trust for the support and education of his children, with the proviso that if the income therefrom should be insufficient the trustee should have the power to convert a few shares from time to time into money for the purposes designated in the trust.

      Held: That the power to sell included in this case the power to mortgage, and that it was incompetent, in a suit for recovery of the pledged stock from the bank making the loan, to introduce . testimony tending to show that the contingency provided for under the trust had arisen, and that the bank acted prudently and in good faith and without collusion in making the loan, and that the trustee used his own good judgment honestly and fairly to meet the expenses of educating the children; and these facts having been established, a succeeding trustee can not recover the security from the bank except by tendering the amount due on the note.
    Haynes, J.; Hull, J., and Parker, J., concur.
   This case comes into this court by appeal, and has been heard upon the evidence. The case presents some questions of importance, although the amount in controversy is not very large. It has been very fully and ably urged by counsel on either side, and a very large number of authorities cited. In the opinion which we shall deliver in the case we shall be very brief in disposing of the questions, not attempting to discuss all questions raised in the ease, but briefly to announce our conclusions.

It appears that about the year 1892 George Dennison Keeler, a resident of this city, had been divorced from his wife. He had three children, two boys and one girl. The possession and custody of dhe girl had been delivered to the mother; the boys seemed to have fallen to the lot of the father. George D. Keeler was the son of Salmon H. Keeler, who had long resided in this county, and upon whose death a considerable estate had fallen to his children, George D. Keeler being entitled to and possessing his share. His financial circumstances, however, became such that he seems to have had some little doubt about his future, financially, and he on the 12th of May, 1892, executed a deed of trust to his brother, Arthur B. Keeler. George was possessed at that time of 150 shares of $100 each of stock of the Holcomb National Bank of the city of Toledo, and these he transferred to his brother in trust for the benefit of his three children, according to the terms of the instrument, which was quite lengthy and quite elaborate and full, 50 shares to be held for each child. It provided that the shares should be held until the youngest child became of age, and that the income of them-should be applied for the education and support of the children, if necessary. So long as the daughter resided with the mother, the whole income went to the support of the two boys. It provides that the stock should not be sold, except under certain circumstances. The whole scope and purpose of the trust was to set aside this property to the children, and preserve it as far as possible for them until the youngest should become of age. Among other things it provided:

“Should my own financial circumstances be such as to prevent me from furnishing any maintenance or support or education to my children before they become twenty-one years of age, or the income or dividends from said stock fail to give to my sons the necessary support and education, then and in such ease said trustee is hereby authorized and directed to convert a few shares of the quantity belonging to each of said cestui que trust into money from time to time, to obtain the necessary means to furnish to each necessary support or education. ’ ’

It is claimed on behalf of the trustee that from that time forth the father failed to pay anything towards the support and maintenance of the children, and it would seem from the testimony here that his financial condition was gradually growing worse.

It appears by the evidence that at the time this trust deed was executed, and just prior thereto, the former guardian of the children resigned, and Arthur B. Keeler was appointed the guardian of the person of the three children, so that he stood in the dual capacity as guardian of the persons of the three children, and as a trustee, holding this property for their benefit; and it should be noted that by the statutes governing the guardianship of the person of children, that the guardian of the person is to see to the education of the children, their care, and that he is authorized by law to draw upon the person who is the guardian of the estate of the children for the necessary moneys for their education and support. We may remark in passing that the guardian of the state would stand in relation to these parties substantially as would the guardian of the person, of course being affected simply by the limitations of the trust.

Matters had run along, and the guardian had been receiving dividends whenever they were made on this property, and attending to the education of the children, some of them being sent away to school, and some of them in other places. In the course of time, it seems that George D. failing to provide money, and the children having to be supported and maintained, it became necessary for the trustee to borrow money, and he did obtain from the administrator of the estate of his father, Salmon Keeler, $600, which it is stated in the testimony was used for the support and maintenance of these children, and their education. But the time came when that money was becoming due, and thereupon he went to the defendant savings bank, and desiring to borrow $600 of that bank, negotiations were opened for the purpose of seeing whether the bank would loan him the money. He proposed to secure a loan of $600 by the transfer of $1,000 — that is, ten shares — of the capital stock of the Holcomb bank which he held in trust, and the bank officers made inquiry with respect to the matter, and investigated, it seemed, quite fully into the circumstances and the needs of the trustee with regard to the moneys that he required. The administrator of the estate of Salmon Keeler appeared before them to make a statement with regard to the moneys that had been loaned, and a statement was made with regard to the use that had been made of that money, to-wit, for the support and maintenance and education of the children. The bank, desiring to be perfectly sure about the position they were taking, requested that he apply to the probate judge who had appointed him guardian, and get his consent or an order that he might make this loan. He went to the probate court, and the probate court appointing him, granted him permission to pledge this stock. While perhaps it may be doubted whether without that order it would not have been legal and binding, yet the circumstance goes to show the care which was exercised by the bank in the negotiation of this loan, in endeavoring to ascertain their rights in taking the stock for security. Thereupon the loan was effected and the stock was pledged, and such of the money as was needed to take up the note to the administrator of the estate of Salmon H. Keeler was paid over to him. The balance was paid to the trastee for his use, and was used for the children.

Subsequently Arthur Keeler moved to California, and certain parties who were interested in the children took steps to have him removed as trustee of this fund, and he was by order of the court of common pleas removed from the position, and the Security Trust Co. was appointed in his place. Thereupon the Security Trust Co. demanded of the Merchants’ & Clerks’ Savings Bank that they should turn over to it these ten shares of stock which they held. The note which they were pledged to secure had not been paid. A little interest had been paid, but the face of the note and some arrears of interest were still due. The Security Co. made no tender of the amount due on the note, nor did it make any offer to pay it. It assumed that the bank had no right whatever to this stock; that its title was wholly void, and that the Security Trust Co. was entitled to the immediate possession of the property.

Upon this proposition have been cited the decisions that I have referred to. It is claimed upon the one hand that under this clause in the deed of trust which authorized the selling of the property under certain circumstances, the trustee could only sell and receive the amount of money for which he could sell the property. On the other hand, it is claimed by the bank that the right to sell included also, under proper circumstances, the right to mortgage.

Testimony was offered tending to prove that at the time the loan was made the stock of the bank, owing to the fact that it had passed dividends for two years, was below par, or at least not above par, and that it was rather under a cloud as a marketable article; that it was better for the bank and considered better for the trust and trustee that the stock should be kept in shape where it would have the benefit of any rise in the market price thereof. The testimony shows that there has been an increase in the earnings of the bank since that time, and an increase in the value of the stock and its salability. It is claimed by the bank that these matters were taken into consideration at the time the money was borrowed.

It is claimed that even if there was a right to mortgage the property, the officers of the bank were bound to know that circumstances had arisen that would authorize the trustee to pledge it; they were bound to ascertain and know, if we understand the argument, that George D. Keeler was neither furnishing anything for the support and education of his children, nor had he the means to do it. It will be observed, that contingency arising, the trustee would have the right to sell this property, or so much of it as would be necessary, from time to time, from each one’s share, to support that particular child. If the trustee could make no sale of the property except that the person who purchased it must ascertain and know, and be able to maintain in court at any and all times that the contingencies had arisen under which a sale could be made, he would not be very likely to make a sale of the property. No person who wanted to buy the property would take upon himself an offer of that kind, and be able to come into court and show that tbe trustee had the right to sell. So the mortgagee, if there was a right to mortgage, would stand in the same position.

I have said that a large array of authorities have been cited upon the propositions respectively urged by the parties to this suit. It is sufficient to say, and all I deem necessary to say at this time, that there are a large number of authorities, very able courts, that hold that the power to sell does not include the power to mortgage, and that the powers that are stated in the deed of trust with which the trustee is qualified must be strictly followed and pursued. There are a large number of authorities of very able courts who hold that the power to sell does include the power to mortgage, some of the ablest' courts in the United States saying that it does, beyond all question. "We are inclined to hold, and we do hold, so far as this case is concerned, that this trustee had the power, the contingency arising, to borrow money for the support and maintenance of these children, and to pledge this stock for such a loan. It is proper to offer testimony here showing that the bank acted prudently and in good faith in regard to the matter, and that under the conviction that the trustee was acting honestly in the purpose in which he was acting, in borrowing the money, and that there was no collusion on its part with him in loaning it for any other purpose than that for which it was stated. We think, so far as we are concerned, that this' is the justice and equity of a matter of this kind, and we are inclined to follow those decisions that hold the law to be as stated, in that respect. In those cases it has been held by the courts that testimony of the kind that I speak of is admissible. The testimony in. this case we think shows that this money was borrowed for this purpose, was used for this purpose. The fact that it was used to pay a debt that existed for money that had been already borrowed and used for this purpose is matter that would make no difference in the case, in our judgment.

It is claimed that there were some moneys in the bank that should have been appropriated to this purpose; but this trust was a continuing trust. If that money had been used for this purpose, the trustee would have had to raise money for the purpose of paying expenses. It was simply a matter in which the trustee was using his own good judgment honestly and fairly to meet the expenses of the education of the children — expenses already incurred and expenses to. be incurred. It was claimed that George D. Keeler had some property still in his possession, but here was the trustee chargeable with the care and support and maintenance of the children, and the father was furnishing him no money, and he could not sit down and wait until some interest was worked out of the father’s estate, if George had anything left. It appears that his creditors were all after him, and were attaching properties that were supposed to belong to him, and that he was in financial difficulties, and going through his property rapidly. The testimony tended to show tee could act, might act, and should act, for the purpose of that he was out of money, had no means, was practically poor. The fact is, under the circumstances of the ease, that the trusraising money for the support and maintenance of these children; that the contingency had arisen which had been contemplated in the deed of trust itself for furnishing this money for the support of these children.

Johnson Thurston, for plaintiff.

O. B. Snider, for defendant,

After stating our conclusion in regard to the matter, we hold that the action of the Security Trust Co. can not be maintained, and the Trust Co. as trustee of this property or any of it has no right to take this security from these parties, save and except by tendering the amount that is due upon the note. We think it would be unjust and inequitable that this trustee should be permitted to take from this bank these securities without tendering to it the money that is due upon the note.

The action, therefore, will be dismissed.


text:
    LIABILITY OF A CO-ADMINISTRATOR.
    [Circuit Court of Hamilton County.]
    Frank J. Dorger v. J. O. Woodward, Administrator, et al.
    Decided, August 3, 1904.

      Administrators — Indebtedness of one of Two Administrators to the Estate — Constitutes Assets in the Hands of Both — And Both are Principals Under Their Joint Bond.

    An indebtedness to tbe estate of a decedent from one of two administrators will be considered as having come into the joint possession of both, and as between themselves and the surety on their joint bond they are both principals.
    Swing, J.; Giffen, J., and Jelke, J., eoncnr.
   H. J. Cordesman and Frank J. Dorger were appointed administrators of the estate of Maria F. Cordesman, and gave a joint bond with the American Bonding & Trust Company as surety. At the time of the appointment H. J. Cordesman was indebted to the estate in the sum of $2,000, evidenced by a note to M. F. Cordesman. It is claimed in this action that at the time of the giving of the bond said Cordesman was insolvent and has remained so up to the present time. Under the law as announced in the first proposition of the syllabus in the case of McGaughey, Admr, etc., v. Jacoby et al, 54 O. S., 487, the amount owing by said Cordesman became assets in the hands of the administrator for which the surety' on his bond is liable.

There being no question but what the amount due by said Cordesman is assets in his hands and for which the surety on the bond is liable the question here is whether in the first instance the joint administrator, Dorger, or the surety company is liable. Dorger had knowledge of this indebtedness at the time of the appointment and had the note in his possession.

An inventory was returned by said administrators to the probate court in which said note was mentioned but was not returned as assets in their hands.

John C. Healy, for plaintiff in error.

Horstman & Horstman, for defendant in error.

Under these facts we think this asset must be considered as having come into their joint possession, and under the case of Eckert v. Myers, 45 O. S., 525, as between themselves and the surety are principals.

Some time afterwards said administrators gave separate bonds, but this in no way changed the liability of the parties which accrued while the first bond was in force. Besides it seems to us that the bonds given separately were not substitutes for the first bond, but additional bonds.

Judgment was rendered in this case in the court of common pleas for the full amount due on this obligation. As H. J. Cordesman was an heir of Maria F. Cordesman, and there being no .debts of the estate and as such heir he would be entitled to a certain portion on distribution, it would seem unnecessary to. pay into court the amount which would be immediately payable to him as heir on distribution. The amount due him as heir should be a credit on the amount due from him as administrator.

The judgment should be modified to this extent.