text:
    (First Circuit, Hamilton Co., O., Circuit Court
    Jan’y Term, 1896.)
    Before Smith, Cox and Swing, J J.
    KITTREDGE v. MILLER.

      Attorney fee — Insolvent trust estate — Suit for compensation dismissed because proceeding not yet terminated, no bar to subsequent action—
    1. A judgment by the Superior Court of Cincinnati sustaining a demurrer to a potition filed by an attorney against the trustees of an insolvent estate for the purpose of recovering compensation for services rendered in securing a fund for the benefit of the . trust, under an arrangement with the assignee of such estate, in a proceeding not then terminated, and dismissing such action on this ground, is not a bar to the prosecution of a suit,or subsequent proceeding brought in the probate court for an allowance for the value of such services.

      Same — Jurisdietion—Probate Go urt—
    2. The Superior Court had not jurisdiction to hear and determine such a question, the exclusive right to do so in the first instance being vested by the statute in the probate court.

      Thirty days to bring suit on rejected claim — Effect—

      3. The thirty days time (Section 6352, Revised Statutes), within which to bring suit on a claim rejected by the assignee or trustee of an insolvent estate, probably relates only to claims against the assignor, and not to claims arising against the trust estate during the settlement of the trust. The thirty days is not a period of limitation, but fixes a time after which distribution of the estate may properly be made without regard to such rejected claim, if suit is not brought within the trirty days after its rejection.

      Same — Failure of action otherwise than upon the merits — Limitation—

    4. The present proceeding having been commenced within one year after the termination of the former action in the Superior Court in which the plaintiffs failed otherwise than upon the merits, and being on the same cause of action, it is not barred by the 'statute of limitations of six years.

      Attorney for trust estate — Bight to compensation—
    5. An assignee is authorized to employ counsel to aid in the administration of the trust, and such counsel is entitled to be paid his reasonable fees from the trust fund on the allowance of the pro ■ bate court. And the fact that the succeeding trustee refuses to allow or pay any such claim, is not sufficient ground for the refusal of the probate court to make such allowance.

      Error and Appeal from Probate Court admissible — Finding of facts and law by Probate Court—
    6. Error as well as appeal may be prosecuted from a judgment of the probate court. And such court, under section 5205, Revised Statutes,has authority to make a finding of facts separately from its conclusions of law.
    Error to the Court of Common Pleas of Hamilton County.
   We state our conclusions in this case very briefly:

1st. We are of the opinion that the judgment rendered by the Superior Court of Cincinnati, and afterwards affirmed by the Supreme Court, in the case prosecuted by Mr. Kittredge against Miller & Tafel, assignees, to recover his claim against said trust estate for the same compensation, which is now sought to be collected in this proceeding instituted in the Probate Court, and which judgment was pleaded in bar of this action, was not a bar thereto — and for the reasons, 1st. that such action was not decided upon the merits, the question having arisen upon a demurrer to the petition, which was sustained upon the ground that it did not contain any allegation that the plaintiff was entitled to compensation for securing a fund for the benefit of the trust estate, and that it had been realized — the fact being that at the time of the commencement of the suit, and when the judgment was rendered, the case in which the services were rendered, was still pending and undisposed of, and no money as the result of the action had been collected by the assignees; and 2nd, for the additional reason that the Superior Court had not jurisdiction to hear and adjudicate the question whether an attorney employed by an assignee of an insolvent estate to transact business in the settlement of said trust, is entitled to be paid from the trust funds a compensation therefor, and fix the amount thereof, and render a judgment or decree that such amount be paid by the assignee from said trust fund. Rev.Stat. section 524,provides that “The Probate Court shall have exclusive jurisdiction except as hereinafter provided * * * *. Ninth, to qualify assignees, and appoint and qualify trustees and commissioners of insolvent debtors, control their conduct, and settle their accounts.” And as held in Betz vs. Snyder, 48 Ohio St., 492, ‘‘upon the filing of the assignment, the assignee is required to enter into a bond for the faithful performance of his duties, and from that time, the administration of the assignment becomes a pending proceeding in the Probate Court, and so continues until the trust is fully executed. * * *. The Probate Court is invested with complete jurisdiction of the whole subject matter of the assignment, and of its administration to final completion;” and, having this power, and as it seems to us the exclusive right to determine in the first instance what payments are to be made from the estate being administered, for the expenses of administering the same, it would follow that the Superior Court had not jurisdiction to do so, and therefore its judgment in that case, even if it had been one upon the merits, would not have operated as a bar to a proper proceeding in the Probate Court, to obtain an order from that court, that the trustees pay to Mr. Kittredge the reasonable value of the services rendered by him to the estate at the instance of the assignees, and under a contract, as in this case, that he was to receive payment therefor from the trust estate.

2nd. It is urged by the counsel for the trustees, that as the action in the Superior Court, or this proceeding in the Probate Court, was not commenced within thirty days after the rejection of his claim by the trustees, that he is forever barred from prosecuting any proceeding for the allowance or recovery of such claim under the provisions of Sec. 6352, Rev. Stat. We are of the opinion that this claim is not well founded. In the first place, we incline strongly to the opinion that this section provides for the presentation of claims which existed against the assignor, and not those which arise in the course of the settlement of the trust. But if this be not so, then in our view the statute in question is not one of limitations — it does not providers does See. 6097 of the administration statute, that if suit is not brought on a rejected claim, within six months after the rejection that the claim is forever barred. If the action against an assignee is not sued on within thirty days after its rejection, distribution of the assets of the estate may be made without reference to it. But we understand it to be the express holding of the Supreme Court, in Ownes v. Ramsdell, 33 Ohio St., 439, “that a creditor may come in at any time for his equitable share of the assets unadministered, or not lawfully disposed of at the time he presents or prosecutes his claim for allowance in the mode prescribed by statute. See also Harner vs. Lucky, 40 Ohio St. 602.

3rd. Nor do we think that the right of Mr. Kittredge to begin and maintain this proceeding in the Probate Court, was barred by the general statute of limitations of six years. The action in the Superior Court was commenced in due time. It was sustantially the same cause of action as this one — viz., to obtain from this estate the same compensation for the same services. In it the plaintiff failed otherwise than upon the merits, and this proceeding was commenced within one year from the final determination of the other case.

4th. It seems clear to us that our statutes in relation to the settlement of insolvent estates authorize the assignee to employ counsel to aid and assist him in the proper administration of the trust and of the duties which the law imposes upon him, and that when such employment is made, under an arrangement that the counsel is to be paid from the trust fund, that he thereby becomes entitled to receive therefrom such reasonable compensation as the Probate Court (in the first instance) may find right. Rev. Stat.6357 recognizes the right of the assignee to employ counsel, when it provides therein for the allowance to an assignee, before a dividend is declared, of his commissions,factual and necessary expenses,and extraordinary services, and also “for such reasonable counsel fees as may be necessary for the proper administration of said assignment, whether performed by the assignee or trustee as attorney, or such other as may be employed by him; and the claim made by counsel for the defendant in error, that such attorneyyfees’must have been actually paid by the assignee, before the court has any power to say whether the attorney has any3'claim against the trust fund, or what would be a reasonable amount thereof, seems to us wholly untenable. The right and dnty of the court to do this is clear, if the assignee has in fact paid it. But is it any the less the duty of the court to do it in a case where the employment has-been made, and the beneficial services rendered, but befoiVthey are paid for, or the estate really be divided, the assignee dies, and his successor succeeds to the funds and the administration of the trust? Does the fact of the death jof the assignee who employed the attorney, or the arbitrary refusal of the successor to pay anything to the attorney, or to apply Oto the court to say whether he should pay anything thereon, and if so, how much, absolutely put an end to his claim for just compensation from the estate? Such a conclusion would be abhorrent to the sense of justice of every one, and such a construction should not be placed upon the statute. . Surely if Miller & Tafel, who succeeded to the trust, had paid the claim of plaintiff, and in the settlement of their accounts the court had found on their affidavits and other proof, if offered, that there was such an employment by the former assignee, and that the services were performed for, and were necessary for the asssignment and that the amount so paid was reasonable, and not more than is usually paid for such services and they were performed under the direction of the assignee, it would be the duty of the court to allow the voucher therefor, as a credit to the assignee so paying it.

And as we have said, the assignee making the employment, •or his successor in the trust, cannot, in our opinion, by his mere refusal to do this, cut off all right of the attorney to a payment of a fair compensation for his services. If the original assignee who employed the counsel, or his successor in the trust,disputes the employment, or the amount of compensation therefor, the matter should be submitted to the court, and if the proof shows that the attorney is entitled to be paid if there be funds to pay it, we think the court has full power to do this, and in our judgment, on the facts as found by the court in the finding of facts, such an order ought to have been made in this case for the whole claim, of Mr. Kittredge, and will now be made.

5th. We think that the motion to strike this petition in error from the files is not well taken. It is claimed by the counsel for defendant in error that under our statutes, particularly under section 6407, which allows an appeal from the decision of the Probate Court in a case of this kind, that is the only way in which the plaintiff in error could reverse this judgment of the Probate Court, and that he did not appeal, but prosecuted error to the Court of Common Pleas. But Sec. 6708 expressly provides that a judgment rendered or final order made by the Probate Court may be reversed, vacated or modified by the Court of Common Pleas, and this warranted the filing in the Court of Common Pleas of a petition in error to reverse the judgment of the Probate Court.

6th. It is further claimed that the Probate Court was not warranted in making a finding of facts separately from its conclusions of law, under Sec. 5205, Rev, Stat. But Sec. 6411 makes the provisions of law governing civil proceedings in the Court of Common Pleas, in so far as they ■are applicable govern like proceedings in the Probate Court when there is no provision on the subject in the Probate Court law. We think that Sec. 5205 applies to proceedings in the Probate Court.

Paxton, Warrington & Boutet for Plaintiffs in error. I. J. Miller, for Defendants in Error.


source: Caselaw Access Project

author: Swing, J.,

license: Public Domain

text:
    (First Circuit, Hamilton Co., O., Circuit Court,
    January Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    FERRIS v. ANTON et al.

      Stockholders’ liability — Some creditors agreeing to take less percentage on their claims than full assessment would produce — Rights of non-consenting creditors—
    Where, in a suit against the stockholders of an insolvent corporation, it appeared that under an assessment of all the insolvent stockholders to the extent of their statutory liability, creditors would receive 75 per cent, on the dollar of their claims, and thereupon all the creditors except one agreed that the solvent stockholders should pay a certain percentage on their stock, such creditor who did not enter into such agreement would thereupon not be entitled to the full payment of his claim, but could only recover the 75 per cent, thereof which he would have been entitled to if no such compromise had been made by the other creditors, with the solvent stockholders.
    Appeal from the Common Pleas Court of Hamilton County.
   Swing, J.,

This was an action by a creditor on behalf of himself an! other creditors against the stockholders of the Miami Valley Railway Company, to assess the stockholders to pay the debts of the company- — the company being insolvent. All the stockholders and creditors were parties. The referee reported that the solvent stockholders, when assessed to the limit, would pay seventy-four and four-twentieths per cent, on the valid claims. Thereupon a compromise decree was returned, all the stockholders and all the creditors except Ferris consenting to it — by which the stockholders were to pay thirty-five cents on the dollar on the common stock to the company, and forty cents on the preferred stock.

Paxton, Warrington & Boidet, attorneys for Ferris.

Gorman & Thompson, attorneys for Defendants.

In this action Ferris now claims that he is entitled to receive his claim in full from the solvent stockholders, as he was not bound by the compromise, and that the stockholders are liable to pay to an amount equal to their stock.

We are of the opinion that Ferris is entitled to receive only such an amount on his claim as he would have received if there had been no compromise decree. This is a suit in its nature equitable, and we think it would be inequitable that Ferris should receive an amount which he would not have received had there been no compromise arrangements. Ferris,according to the report of the referee in this case, was entitled to receive about seventy-five cents on the dollar along with all the other creditors. The fact that all the other creditors agreed to accept a less amount will not inure to the benefit of Ferris, so that he may, by reason of their accepting a less amount,receive one hundred ceuts on the dollar. Ferris cannot complain of the act of the other creditors — it does not lessen the amount which he would have received; neither is he entitled to any benefit from their act — he was not a party to it, and not bound by it.

This was not a case where the corporation paid off claims against it; but what was done was done in an action for the benefit of Ferris as well as all other creditors, and to which Ferris was a party, and he was only entitled to such relief as a court of equity could grant him.. There would be no equity in giving Ferris one hundred cents on the dollar on his claim, when be was only entitled to get seventy-five cents, for the only reason that other creditors had released part of their claims.


author: Smith J.

text:
    (First Circuit, — Hamilton Co.,Ohio Circuit Court,
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    MATHERS v. CINCINNATI RAILWAY TUNNEL COMPANY.

      Amended answer and cross petition filed by leave after decree in the case — Jurisdiction of Court to adjudicate matters set up therein, notwithstanding former decree—
    1. In a suit .by the holder of a judgment against a railroad company on which levy was made on certain property of the railroad co'fnpany, to marshal liens and for the sale of the properly levied •upon, other lienholders wore made parties,and in such suit a decree was entered finding the priority of liens and ordering the sale of the property levied upon by a master, but no sale was made for want of bidders. Afterwards one of the lien holders filed an amended answer and cross-petition, setting forth the terms of a mortgage it holds, from which it appears that the mortgage covers qll the property of the said railroad company, besides the property levied'upon under plaintiff’s judgment, such amended cross-petition asking for (ho appointment of a receiver to take charge of the assets of the railroad company and hold them subject to the order of the court,and for a foreclosure of the mortgage,etc. In such case the former decree of the court will not deprive it of jurisdiction on such amended cross petition, and under section 5587, Revised Statutes, the court will have authority to appoint, a re- , ceiver to soil the property of the railroad company asa whole, the whole of: it being necessary to carry on the enterprise of constructing the railroad. And the court is authorized to proceed and adjudicate the questions presented by such amended cross-petition.

      Filing amended pleadings in appeal eases in Circuit Court — New parties.

      2. Amendments may be permitted in the circuit court in appeal cases in furthQrance of justice, and when such amendments are properly made, on appeal, requiring new parties to be made, these may be brought in and their rights adjudicated. (Sec. 5225, Re- ' vised Statutes.)
    Appeal from the Court of Common Pleas, Ohio, Hamilton County,
   Smith J.

The first question for consideration in this case, as now presented, is, whether this court, under the peculiar cireumstances which exist, has the right to allow the amended and additional answer and cross-petition of The Farmers’ Loan & Trust Oo., to be filed, and can proceed to adjudicate as to the matters therein set up. In other words, whether it has jurisdiction of the subject matter, or whether that has been lost by reason of the adjudication heretofore made by the court, for such jurisdiction is challenged by an answer thereto, which has been filed by the Tunnel Oo.,one of the original parties to the case.

A brief statement of the facts as to this is necessary.

In 1877, the petition of Mathers et al. against the Tunnel Oo. and others, was filed in the Court of Common Pleas. It averred the recovery of a judgment in 1871, by the plaintiffs against the Tunnel Co., in an action then pending in the Superior Court, for a large sum; the issue of an execution thereon in due time, viz: in October, 1875; a levy on certain real estate,rights of way of defendant Tunnel Co.,including the incompleted tunnel and approaches, masonry, culverts, shafts, and the lands occupied by them, and the lands acquired by said company as and for its right of way, and the appurtenances thereunto belonging. Also cn various other tracts of land specifically described. It further averred that on January 1, 1872, the Tunnel Co. made to the Farmers’ Loan & Trust Co., a mortgage-on the above described property to secure 11,000,000.00 of bonds, few if any,of which were issued,but that it was a cloud upon the title of the property; and it was further averred that' other persons named claimed some interest in the property so levied upon, or some part of it, and they were made parties and called on to set up their claims, and there was a prayer that all of said property so levied on, including the franchises of the Tunnel Co., be sold under the order of the court and for other relief. It was thus an action' to marshal the liens on the property and franchises of the Railway Co. so levied on, and for its sale, under the' order of the court.

Answers were filed by the Tunnel Co. and the Farm ers’Loan & Trust Co. The latter company by its answer and cross-petition, avers the due execution,by the Tunnel Co., to it as trustee,of the mortgage to secure one thousand coupon bonds of $1000 each, amounting in all to $1,000,000.00,on January 1, 1872, and that said bonds were certified by the trustee, and 786 of such bonds were placed in the custody of the trustee, and have remained there ever since. That the remaining 214 of said bonds were delivered to said Tunnel Co., and that it has no knowledge as to what had become of them. That said mortgage deed conveyed to the®’trustee all of its corporate property then present and thereafter to be acquired.

Said Farmers’ Loan & Trust Co. then prayed that the court would instruct it as to its duty as to such trust property, then in its possession; that such decree be made in the case as the court might deem proper, and that defendant be paid its costs, counsel fees, and expenses, and a reasonable compensation for its services as trustee, and for other proper relief.

The case was tried in the Court of Common Pleas, and a final decree entered there, from which an appeal was taken to this court. On trial there, a decree was entered finding the claim of the plaintiffs to be the first and best lien upon the lands and property levied on, except the taxes, and ordering that such property be sold by Benj. H. Cox Esq., a master commissioner, and that out of the proceeds of the sale, he pay, 1st, the costs of the case- — '2nd, the taxes lawfully assessed thereon, and 3rd, the amount due the plaintiff, and hold the balance if any, subject to the further order of the court. By a subsequent order and judgment of the court, in May, 1889, it was found that The Farmers’ Loan & Trust Co. was “the trustee of the mortgage set out in its answer and cross-petition, and the holder of the lien next after that awarded to the plaintiff on the property described in the decree, and entitled to receive the proceeds, of any sale of said property, after the payment of the claims of the said plaintiffs and the costs of this court, subject to the further order of the court as to the disposition of said proceeds.” No further order was made by the court, and the property or no part of it has ever been sold for want of bidders.

In December, 1895, by leave of the court, an additional answer and cross-petition was filed by the Farmers’ Loan & Trust Co. It affirms and reiterates the allegations of its former pleading, and in addition that the 214 bonds not in its possession had been properly issued by the Tunnel Co., and were now outstanding obligations of said company; that they are over-due, and havenotbeen paid, principal or interest. It then sets up the terms of the mortgage as to bringing suit for foreclosure or the appointment of a trustee, one of the provisions of which was that the trustee should not demand the possession of the mortgaged property or file a bill for the foreclosure and sale of the premises, unless the same should be requested, in writing, by the holders of a majority in interest of said bonds at their par value — -nor any judgment, order or decree as aforesaid be made or rendered until after thirty days written notice of the time and place of applying for the same should have first been given to said Railway Company. And it is then averred that the outstanding bonds (214) are wholly due, principal and interest, and thereby default has been made, and that such trustee has been so notified by the owner of a majority of the said 214 bonds to proceed to foreclose the mortgage.

It then alleges that the mortgage covered all of the property and right of way of the said Railway Tunnel Co. held or owned by it at that time, or which it should thereafter acquire, and also several tracts of real estate particularly described in the amended cross-petition. (It is conceded that some of this property was not levied on by the Mather execution, and, therefore, no action of the court as to this was sought in the original case.) That in addition to the above described property, said Tunnel Co. owned a tunnel commencing at a point in the city of Cincinnati, north of Effluent Pipe street, and running in a northerly direction, and right of way south of and extending from the beginning of said tunnel to Sharon in this county, and beyond.

That the mortgage provided for the distribution of the proceeds, if it was foreclosed, as follows: 1st, to the payment of the compensation and expenses of the trustee — 2nd, to the. payment of the bonds and interest — 3rd, the balance, if any, to the stockholders of the company.

It further avers that after the acquiring of the property, and doing considerable work, the company became insolvent, and abandoned the enterprise, and its right of way and property are being lost and destroyed, and the work donéis going to decay, and taxes have accumulated thereon, and some property has been sold therefor. Wherefore it prays for a receiver to take possession of the assets of the company and hold them subject to the order of the court, and for a foreclosure of the mortgage, the sale of the property and the division of the proceeds, and for full relief. Many additional defendants are made parties to this cross-petition as asserting claims to some part of the property.

The Railway Tunnel Co. has filed an answer containing several defenses. It first denies the jurisdiction or power of the court at this stage of the case, to take any action on this cross-petition. That its jurisdiction was exhausted when the'orders and judgment were entered at a former term of this court,years ago, The second defense denies that the trustee had received notice from a majority of the bonds outstanding, to foreclose the mortgage, and denies further that the 214 bonds were ever disposed of'by the Tunnel Co., or are outstanding liabilities of such company. Third, it denies the insolvency of the company,or that it has abandoned the enterprise.

The case has'; been submitted to us, not on the issues raised by the pleadings, but upon the application made by the Farmers’ Loan & Trust Co. for the appointment' of a receiver, as prayed for in its answer and cross-petition, and the affidavits filed on this application. A like application, was made to us on behalf of the original plaintiffs in the case; which we announced that we were ready to grant, believing that we had full power to do, under the provisions of our statute as to receivership, Sec. 5587, Rev. Stat., and particularly under sub-division 3 of that section; but this motion has not been pressed, for the reason,as we understand, that it appears that there was property of the Railway Tunnel Co., embraced in the mortgage,which was not levied on under the Mather execution, and which was not covered by the original decree in favor of Mather, or which could not be sold when a decree of foreclosure was taken on the mortgage, and that as the whole of the mortgaged property is necessary to the carrying on of the enlerprise of constructing a railroad, that the property should be sold by a receiver appointed in the cross-action on the mortgage as a whole.

We are of the opinion that this court has now the right to’' proceed and adjudicate the questions raised by this amended cross-petition, notwithstanding the entry of the decree or decrees made at former terms of this court, and although the amended cross-petition sets up other claims, and asks' other relief than that asserted in the original cross-petition. There was no judgment fixing the amount of the claim of the trustee upon its mortgage. All that was done as to its claim was, to find that it had priority as to the property sought to be sold, next after that of the plaintiff, and this was to be paid only on the further order of the court. If therefore, there was, for any cause, any delay in bringing about the sale under the decree rendered in favor of the plaintiffs, or if after that time the right of the Trust Go. to have a decree of foreclosure on its mortgage came into existence, we see no reason why it would not be entitled to file an amended and supplemental petition to assert that right, and on the trial of the case have the amount due it found, and a decree entered for the sale of the property described in the original proceeding, and the proceeds distributed according to the rights of the parties as found by the original decree, and in addition, be entitled to a receiver as a provisional remedy before judgment. It is clear that amendments may be permitted in the Circuit Court in appeal cases in furtherance of justice, (Sec. 5225).

Under the provisions of this section, and the adjudica tions of the Supreme Court, it seems clear too, that when amendments are properly made in the Circuit Court, on appeal, the effect of which is that new parties are necessary, that they may be brought in, and their rights adjudicated as effectually as if they had been parties to the action in the court of common pleas. This view is supported by the cases reported in 8 Ohio St. 28; 20 Ohio St. 38; 12 Ohio St. 11, and 48 Ohio St., 457.

If therefore the amended and supplemental cross-petition of the Trust Co. only affected the land and property, the subject of the original action, we would have no questions, but that the proceedings were regular and proper, and that the 33BW parties made thereby, were properly made,and that their rights could be legally adjudicated in this court at this time.

We have had some doubt on the question whether the rights of claimants to the property embraced in the mortgage, but not covered by the lien of the plaintiffs, could properly be adjudicated here for the first time. But we have reached the conclusion that they may. If what is now the amended petition, had been filed as the original cross-petiton in the court of common pleas, as the property of the Railway Tunnel Co., sojmortgaged, was an entirety, we think the Trust Co. could .rightly have brought into the case, persons claiming an ■interest in any part of it, though it was not included in the property levied on. This would be necessary perhaps to a complete and final determination of the rights of the parties. ■Suppose the levy had omitted 100 feet in the line of this tunnel, and the mortgage covered the whole of it. Would not the court so mould its decree as to provide for the sale •of the whole? If proper for the common pleas court to do •so, it could rightly be done here.

This being the case, we are of the opinion that as a provisional remedy, the Trust Co.,before obtaining a decree for the sale of its mortgaged property, can properly apply to the court for the appointment of a receiver to take charge of the property, and protect and manage it under the order ■of the court, so as to prevent it being injured or wasted, and the evidence showing this to be necessary, we are willing to make such an appointment. We do not see however, in the present state of the case, how we could authorize such receiver to proceed and sell the'mortgaged property, as seems to be desired. The right of the trustee to bring this action is directly challenged by theanswserof the Railway Tunnel Co., which denies the averment, that the trustee has been authorized by a majority in interest of the outstanding bonds to bring this action. If this is so, by the ex-press provisions of the mortgage set out in the petition, the action to foreclose cannot be maintained by the trustee, though in an action brought by another to sell some part of the property, it might assert its lien, as was done in the original proceeding. It would seem then that this issue must be determined in favor of the trustee, before there could be a decree of foreclosure on the mortgage claim. And we do not see howjsuch a decree could be taken as to property not included in the levy, until other conflicting claims thereto are settled by the adjudication of the court, unless the persons asserting such claims consent to the sale, leaving the rights of the claimants to be therereafter adjudicated. But these would be matters for further arrangement. If the appointment of a receiver for the purposes indicated,is desired by the Trust Go., it will be made.

Harmon, Colston Goldsmith & Hoadly, and Paxton J& Warrington, for Plaintiffs.

J. J. Glidden, Nelson Saylor, and C. [L. Raisin, for Defendants.


author: King J.

text:
    (Sixth Circuit—Wood Co., O., Circuit Court
    April Term, 1896).
    Before Haynes, Scribner and King, J.J.

    MARTZ v. CINCINNATI, HAMILTON & DAYTON RAILROAD COMPANY.

      Combustible material on right of way of R■ R. — Grain Elevator—
    1. Under the statute requiring railroad companies to keep their right of way free from weeds, high grass, deeayod timber and combustible material, an allegation that it failed to do so by having’a grain elevator standing on its right of way, in which the fire originated, will, on motion, be stricken out. Such an elevator is not “combustible material,” of the character contemplated by the statute.

      Locomotive setting fire — Expert testimong — Testimony of former R. B, Engineer out of service for seventeen years—
    2. A former railroad engineer who has been out of that service for seventeen years, may testify as to his experience and observation during the time of his service as engineer. His long absence from the service and the fact that the conditions have changed since he left the service, might affect the weight of his testimony.

      On failure to identify engine setting fire, evidence as'to condition of locomotives in throwing sparks about the time in question admissible—
    3. Unless the identification of a particular engine throwing the sparks is certain, witnesses are not confined in their testimony to any particular locomotive, but may show that the engines of the railroad company generally emitted sparks as they passed along-¶ about the time of the fire, and the witness would not be confined to a day or two, but will be allowed to testify as to a reasonable time, and a month preceding the fire would not exceed the limit.

      Building on right of way burned from sparlts from engine, setting fire to adjoining building—
    4. Where a building on the right of way of a railroad is set on fire by sparks from a passing engine, and the fire is communicated to plaintiff’s adjoining building, the railroad company is liable for the loss. The statute of 1894, makes the railroad company liable for all loss or damage by fire originating on its own lands, and also provides a rule of evidence that the existence of tho fire upon its lands shall be prima facie evidence, not of negligence to be rebutted, but that such fire was caused by operating such railroad, which leaves the railroad company two facts only for rebuttal — that the fire did not originate upon their land, or that it was not caused by the operation of the railroad, but from causes over which they had no control.

      Same — Constitutionality of the Statute—
    5. The act of 1894, (91 Ohio Laws, 187), is constitutional.
    Error to the Court of Common Pleas of Wood county.
   King J.

The plaintiff in error brought his action in the court of common pleas, of Wood county, against the Cincinnati, Hamilton & Dayton Railroad Company, to recover damages caused by the burning of his mill, from a fire, alleged to have been started through the negligence of the defendant.

The trial in the common pleas court resulted in a verdict in favor of the defendant, and the plaintiff asks to have the judgment in that court reversed.

The errors claimed are these:

First. The court erred in striking from the petition certain words. Second. The court erred in ruling out evidence offered by the plaintiff. Third. In refusing to give certain requests asked by the plaintiff. Fourth. The court erred in its charge. Fifth. The claim is made that the verdict is against the weight of the evidence.

There are exceptions to the admission of some testimony offered by the defendant, but we find no error in the ruling of the court.

First: The court upon motion struck from the petition these words: “And that said company is responsible for damages and injuries occasioned thereby to the property along the line of said railroad.”

This allegation amounts to a legal conclusion, and was properly stricken out. Also these words: “And negligently and carelessly omitted to keep its right of way free and clear of dry and combustible material.”

The statute provides that a railroad company shall keep its right of way clear and free from weeds and high grass, decayed timber and combustible material, which is liable to take fire. The whole allegation in the petition, a part of which only was stricken out, reads as follows: “And carelessly omitted to keep its right of way clear and free from dry and combustible material, but negligently permitted the said grain elevator with its contents to be and remain on the same near and within seventy-five feet of the plaintiff’s grist mill.” It was claimed in the petition, and on the trial, that the fire originated in the elevator. Now, if that elevator was the combustible material complained ofj and which the railroad company allowed to remain upon its right of way, that, we think, is not that kind of material referred to in the statute, and so the allegation that the company permitted dry and combustible material upon its right of way, is not material, and should have been stricken out.

Second: Plaintiff called a witness named Graham, who testified that he had been nine years employed and working as an engineer, and two years as a fireman on a locomotive engine, and in the employ of the Lake Shore & Michigan Southern Railway. That he had observed the escape of sparks from locomotive stacks, and knew the character and different kinds of spark arresters that during that period had been ordinarily used. Plaintiff then asked him this question: “You may state whether a locomotive that is properly constructed, properly managed, and has a proper spark arrester, in good order, will throw out sparks that will set fire to a pile of corn cobs forty or fifty feet away?

This was objected to, and the objection overruled, and the witness answered: “The sparks will go out before they strike the ground, if an engine is properly constructed. It will not throw sparks ten feet away from the track.”

Witness is next asked whether such a locomotive, so equipped and in good order, would throw sparks large enough to burn a man who was three to five car lengths away from the smoke stack? Witness answered, “No, that he never knew of one that had the cone and netting in good shape”. Witness was cross-examined next, and inquired of when he left the employ of the Lake Shore Company, and he answered in 1877. That his business since 1877 had been running a saw mill. Defendant then moved the court to strike from the jury the testimony of the witness, on the ground that he was unqualified. This motion was sustained, and the plaintiff excepted.

We failed to discover any good reason why the witness was not qualified to testify to his experience and observation as to the escape of sparks from locomotives. If the witness had not been recently employed where he could observe the matters in question, or the conditions had in the years of his non-employment been changed, this might affect the weight of his testimony. We think the character of it was such that experience and observation would fit him to testify, although he had not in recent years been engaged* in a calling that would continue or add to his knowledge on such a subject. One Clark was next called, who testified that he bad been engaged as a locomotive engineer up to a recent period, and was asked whether a locomotive that is properly constructed and properly managed and has a proper spark arrester in good order, will throw out sparks that will set fire to a wood pile a distance of thirty feet or more from the right of way. That question was objected to, and objection sustained.

Another question follows, relating to the setting fire to a hay stack the same distance away from the right of way; and then, whether a spark emitted from such a locomotive, would set fire to grass fifty feet from the railroad track. Objections to this were sustained, and the plaintiff excepted, plaintiff stating that he expected to show that an engine properly constructed and properly managed, and with a proper spark arrester, will not throw fire a distance of thirty feet, and will not set fire to a wood pile, hay stack, or grass, the distance named.

We are of the opinion that the witness should have been permitted to answer these questions. We think the experience of the witness was of a kind upon this subject, that enabled him to give an opinion, and which he might give. That upon this subject,-a man of ordinary affairs would have that knowledge, nor was it such a question that all the facts could be placed before a jury to enable them to form an opinion irrespective of that witness. Locomotive engineers, by reason of their employment, cannot avoid becoming acquainted with and acquiring the kind of knowledge called for in these questions, and we think the answer should have been permitted.

Another witness, .Kretzinger, called by the plaintiff, testified that he lived in the neighborhood where this fire occurred, and was asked, whether, shortly prior to the date of the fire, if he saw any other fires along or adjacent to the right of way of the defendant company, and he answered that he had. He was asked to state whether that was about that time. This was objected to, and an answer permitted. He said that while he was walking along, and during the dry months, he frequently had^seen and put out fires that 'occurred along the right of way. Then followed a motion to strike this answer from the jury, and this was sustained, to which the plaintiff excepted. Plaintiff’s counsel then asked the witness if this was prior to July 29th, 1894, and he answered, that was as near as he could locate the time, somewhere in July. The question was then asked whether during the month of July, shortly before July 29, the date of the fire, the witness saw any fires along or adjacent ta the track of this line of railway, This was ojected to and sustained, and plaintiff excepted.

We may assume from all that is contained on that page of the record, that the witness would have answered as he answered the previous question, which answer was ruled out. Up to this period of the trial of the case, the plaintiff had hot identified any particular engine as the cause of the fire. Then the same witness is asked this question: “I will ask you to state what you saw coming from the top of defendant's locomotive, and what you saw. if anything, passing through the village of Milton Center, Wood county, Ohio, a short time prior to July 29, and within the month of July, 1894,” This was objected to,objection sustained, and plaintiff excepted. Plaintiff stated that he expected to show by the answer that during the month of July, and prior to July, 1894, several trains passed through Milton Center, emitting a great quantity of large sparks, and that the same were thrown a great distance from .the engine.

We understand the rule to be well settled, that where no engine has been identified as the cause of the fire, that the plaintiff may offer testimony showing the condition of the locomotives on defendant’s road, and their action as to the emission of sparks near the vicinity where the fire in ques tion was started, and about the time of the fire, either a short time before or after, and that the witness will not be confined to a day or two, but will be allowed to testify to a reasonable limit, and a month preceding the fire would not exceed that limit. This court so held in Lakeside R. R. Co. vs. Kelly, 10 C.C.R., page 322. The authority therein cited sustains that proposition: 144 Pa. St.641.

Unless the identification by the paintiff of a particular engine is certain, he is not confined in his testimony to any particular engine, but may show that the engines of the company generally emitted sparks as they passed along the line of the railroad company.

It is true here, that many of these questions are leading, or are otherwise improper in form, but they were not objected to upon that ground, nor does the court exclude them for that reason.

Third: When the evidence in this case was concluded, the plaintiff asked the court to charge this proposition: “If you find that the fire from which the mill was ignited and destroyed, originated upon the lands belonging to defendant, the Cincinnati, Hamilton & Dayton, Railroad Company, then this fact makes it prima facie evidence that such fire was caused by operating its railroad. ” This request the court refused, but charged the jury, among other things, the following: “If the jury find from the evidence that the fire was communicated from the engine used by the defendant upon its railroad, passing through Weston, to the elevator, on the 29th day of July, 189i, and you further find from the evidence that by reason of such fire so communicated, the said elevator was burned, and that the elevator fire directly caused the mill owned by the plaintiff to take fire, and thereby to burn up, then the fact that such fire was communicated should be taken by the jury as prima facie evidence to charge the defendant with negligence, unless it further appears from the evidence that said engine was in proper order, as will be further explained, and carefully operated and managed at the time of the alleged communication of fire; and provided, the plaintiff was not guilty of negligence in relation to such fire, and used reasonable efforts to put it out and save his property.”

The court also charged this: “The mere fact that the Baldwin elevator was at said time located on the land of the defendant, and at said time caught fire, whereby the mill of the plaintiff was destroyed, creates no presumption that said fire was caused by the defendant.”

The evidence in this case shows that plaintiff’s mill, destroyed by fire, was situated on his own property, adjoining the right of way of the railroad. Across from this mill, and upon the defendant’s right of way, was an elevator known as the Baldwin elevator. The evidence seems to show quite cearly that the fire originated in this elevator, and it is claimed by the plaintiff, and the evidence tends to show] that sparks from a locomotive fell upon the roof of the elevator, and ata point where the roof of an addition adjoins the main building, and it is claimed that the roof had separated from the main building, leaving a large crack or opening, through which the sparks fell to the floor beneath, upon which there had accumulated a pile of corn cobs. This pile of cobs, and the roof of this elevator at the point where it is said the fire started, was about thirty feet from defendant’s track. We find no evidence contradicting this claim, that is, tending to show that the fire started in any other place. From the fire in the elevator the mill was caught and burned, so that the claim of the plaintiff is predicated upon the setting fire to the elevator, and if this be true, or if the jury so find it, then the fire clearly originated upon the lands of the railroad company.

'In 1894, and before this fire, the legislature enacted a statute found in volume 91, page 187, that every railroad company operating a railroad in Ohio, shall be liable for all loss or damage by fire “originating upon the land belonging to said railroad.’’ Also, that such railroad shall be liable for the damage by fire originating on lands adjacent to the railroad land, caused by sparks from an engine passing over such railroad and the existence of the fire upon such railroad company’s land, shall be prima facie evidence that such fire was caused by operating the railroad.

In the next section it is also provided, that the fact that fire was communicated by a locomotive engine of a railroad company shall be taken as prima facie evidence to charge with negligence the corporation in the use and occupation of such railroad. The plaintiff asked a charge which was pertinent under this law, the gist of which is, that if the jury found that the mill was ignited from a fire originating upon the lands of the company, this fact made it prima facie evidence that such fire is caused by operating such railroad. The court refused it, and charged the jurjr that such fire should be taken as prima facie to charge the defendant with negligence, unless it should appear that said engine was in proper order, or unless it should appear that plaintiff had contributed by his own negligence to the fire.

This charge clearly ignored this statute, which in the first place makes the railroad liable for all loss or damage by fire originating upon its own lands, and provides also a rule of evidence, to-wit: that the existence of the fire upon the railroad company’s land, as in this case, if found that the fire originated in this elevator, “shall be prima facie evidence that such fire was caused by operating such railroad.’’ Not prima facie evidence of negligence to be rebutted, but prima facie evidence that the fire was caused, by the operation of the railroad, and leaving to be rebutted by the company two facts only: they might show that the fire did not originate upon their lands, and they might show that if it did so originate, ’’that it was not caused by the operation of the railroad, but from some other cause over which the company had no control.

We think this fire originated on the land of the railroad company, defendant, and if this statute has any effect, it is clear that the fact that it so originated, when proven, is prima facie evidence that the fire was caused by the operation of the railroad. The statute so says, and we may not ignore its plain language.

It is suggested that this statute is unconstitutional, but we are given no reason and are referred to no authority for this claim.

W, H. Martz, James & Bever stock, and B. S, Holbrook for Plainttiff,

Swayne, Swayne, Hayes & Tyler, and F. A. Baldwin for Defendant.

These statutes are in force in several states, and we know of no case where they have been held unconstitutional. There seems to be some reason for the validity of such a statute, since the railroad company, on its own land, can best provide for the prevention of fire, and we think the rule of evidence provided by the legislature was one that it had power to enact, and that the court erred in refusing the request and in charging the jury as stated.

Fourth — We are required to pass on all errors assigned, and the next one is that the verdict is contrary to the evidence and the law, and an examination of this record indicates to us that this assignment of error is well taken, for we must hold that the eivdence fairly shows that this fire originated upon the lands of the railroad company. So originating, the statute says that it is prima facie evidence that it was caused by the operation of the railroad. The company offer no evidence tending to disprove this, and hence, the plaintiff was entitled to recover, if the proper rule of law had been given to the jury upon the proofs as they existed.

The case will, therefore, for the reasons above given, be reversed, and remanded for a new trial.


author: Hale, J.

text:
    (Eighth Circuit—Cuyahoga County,O.,Circuit Court,
    Term, 1896.)
    Before Caldwell, Hale and Martin JJ.
    GEORGE HENRY v. A. SPENGLER.

      Endorser’s Liability on Promissory Note — Notice of non payment and protest required — Proper practice of Notary Public—
    It is the ordinary practice and law for a notary pulic in sending notice to the last endorser, to enclose notices to all the prior endorsers who are non-residents of the place where the demand is made, and in that case it is the duty of the last endorser to forward the enclosed notices to the persons to whom they are addressed. If for any reason the last endorser fails or neglects to forward the notices to the prior endorsers, and in fact a prior' endorser gets no notice in any other manner, he is not held.
    Error to the Circuit Court of Cuyahoga County, Ohio.
   Hale, J.

This case is pending in this court on error. The plaintiff in errorfinsists that it appears from the record, that there was no evidence to J support the judgment rendered by a Justice of the Peace,| in favor of the defendant in error, against thefplaintiff in error, as an endorser on a promissory note. The only evidence offered upon the trial before the justice to prove that the plaintiff in error had notice of nonpayment of the note — a necessary fact to be established — was the certificatefof0the notary public, which reads, so far as it bears upon^the fact of the notice, as follows:

“I thenfprotested the same for non-payment, and notified the following named drawer and endorser thereto of said presentmentfand protest, by a separate notice to each, enclosed in samefenvelope,and addressed as follows: The State National Bank Cleveland, Ohio; enclosed notices to all endorsers, and deposited the same in the poshoffice at Cincinnati. ”

When this note became due, it was in the hands of a bank in the City of Cincinnati, and was by it given to a notary public for demand, protest and notice. The State National Bank of Cleveland, was the last endorser of this note, the .“plaintiff in error being the next prior endorser. The notary public mailed a notice to the State National Bank of Cleveland, and with that notice enclosed notices for the other prior^endorsers. There was no evidence given on the trial before the justice that the enclosed notices, or any one of them, were sent by the State National Bank of Cleveland, to the persons to whom jhey were addressed, including this plaintiff in error. The justice, however, rendered a judgment against the plaintiff in error as endorser, and that judgment was affirmed by the Court of Common Pleas. We think there was error in both of these judgments.

Frank H. Higley, for Plaintiff.

Louis L. Grossman,for Defendant.

It is the ordinary practice and law for a notary public in .sending notice to the last endorser,to enclose notices to all the prior endorsers who are non-residents of the place where the demand is made, and in that case it is the duty of the last endorser to forward the enclosed notices to the persons to whom they are addressed. If for any reason the last endorser fails or neglects to forward the notices to the prior endorsers, and in fact a prior endorser gets no notice in any ether manner, he is not held.

Under the facts disclosed by this bill of exceptions, there was no proof whatever that the plaintiff in error, as endorser, had at any time received any notice whatever of the dishonor of th.e note upon which his name appeared.

The judgment of the Court of Common Pleas, and that of the Justice of the Peace, are reversed, and the case remanded to the Court of Common Pleas for a new trial.


author: Smith, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court
    January Term, 1896.)
    Before Swing, Cox and Smith JJ.
    SCOTT JACKSON and ALONZO M. WALLING, v. R. M. ARCHIBALD, Sheriff.

      JExtradition — What sufficient allegations in indictment for purpose of extradition — If a felony is substantially charged in the indictment attached to the requisition for the extradition of a fugitive from justice, the fact that it is inartistically drafted,or that there is some technical defect in the form of the indictment, ought not to prevail to defeat extradition.
    Error to the Court of Common Pleas, Hamilton county.
   Smith, J.

In those two cases the court is of the opinion:

First, That the indictment returned by the grand jury of Campbell county, Kentucky, against Walling and Jackson, substantially charges them, and each of them, with the murder of Pearl Bryan, in that county. It avers, that it accuses Scott Jackson and Alonzo Walling of the crime of' murder committed as follows, viz: “The said Scott Jackson and Alonzo Walling, on the —day of —■—1896, before the finding of this indictment, in the county aforesaid, did wilfully, feloniously, and with malice aforethought, kill and murder Pearl Bryan, by the one or the other, the said Scott Jackson, or Alonzo Walling, with a knife or other sharp instrument cutting the throat of the said Pearl Bryan, so that she did then and there die, the other being then and there present, aiding and abetting the same, “the exact manner whereof is unknown to the grand jurors, and which did the cutting, Scott Jackson or Alonzo Walling, or which aided and abetted the same, is unknown to the jurors. ’’ The averment is direct that both of the persons named were guilty of the murder, and states the intent with which, and the manner in which it was done, viz: By one of them doing the cutting of the throat of Pearl Bryan with a knife, the other being present, and abetting him, and thereby then and there causing her death, This, standing alone, would have been a clear and formal charge against both of the defendants of murder, and the fact that the indictment further states that the grand jurors were ignorant as to which one of the two actually did the cutting, and which one, being present, so aided and abetted the other, does not make the indictment bad, unless it is made so by the laws of the state of Kentucky, and no proof as to this appears in the bill of exceptions. If a felony is substantially charged in an indictment, the fact that it may be inartificially drafted, or that there is some technical defect in the form of the indictment ought not to avail in a case of this kind. Such questions are to be heard and passed upon by the court in which the indictment was found, or which may be called upon to try the case between the commonwealth and the defendants.

J. D. JSrmston & L. J. Crawford, for Jackson.

Prosecuting Attorney & Col. Nelson, contra.

Second — The Governor of the state of Kentucky, having in his requisition upon the Governor of Ohio for the surrender of those defendants for trial upon this indictment, a copy of which was attached to said requisition, and certified by said governor as required by the laws of the United States to be authentic, and having also attached thereto the evidence upon which he acted, viz: an affidavit of Ramsey Washington,Esq., county attorney of Campbell county, Kentucky, averring that those defendants were fugitives from justice, and were in the state of Ohio, (all of which papers were introduced as evidence on the trial of this case,) and the Governor of Kentucky, on his requisition, having alleged that they were fugitives from justice, the question is, wRether in a case of this kind, the courts of this state should consider the question whether such evidence ought to have been satisfactory to the Governor of Kentucky. We think not. That was a matter for him to decide, Our understanding of the decisions in this state is, that an the hearing of an extradition case by the court, or on a habeas corpus case of this kind, the parties might have offered testimony to show that in fact they were never in Kentucky, and were not fugitives therefrom, But this was not done, and we are of the opinion that the evidence submitted to the trial court, though the affidavit of Mr. Washington was on belief only, made a prima facie case that they were fugitives from justice, and it was clearly shown that those parties were those named in the indictment.

We think therefore, that the Court of Common Pleas did not err in dismissing the writ, and its judgment will be affirmed.


text:
    First Circuit—Hamilton Co. O., Circuit Court
    January Term, 1896.)
    Before Swing, Smith and Cox, JJ.
    J. M. CASE Jr, v. THE STATE OF OHIO.

      Criminal Law — Objection that copy of indictment not true copy. An objection that the copy of the indictment served on the defendant is not a true copy must be made before going to trial.
    2. Same — Lareenv of Chech — Where the defendant is charged with larceny of a check, the property of one Graue, and it appears that the defendant, after endorsing and presenting the check, did not leave it upon the counter, but immediately put the check in his pocket, and that afterwards Mrs. Graue paid him the money, never having had the check in her possession, and that it was not left upon the counter or in any way delivered to Mrs. Graue, then the legal property in said check was not in Mrs. Graue, and the subsequent use of said check by defendant did not constitute larceny.
    3. Same — Talcing check inadvertently — If the defendant took up the chek inadvertently, with no intention of stealing it, and afterwards finding it in his possession, intended at the time of the discovery to return the check or the money received thereupon to Mrs. Graue, and maintained that intention throughout, and intended at the time of purchasing some goods paying for them with the check, to return said money to Mrs Graue,as claimed by him, then his offense was not larceny.
    Error to the Court of Common Pleas of Hamilton county, Ohio.
   Smith, J.

The defendant was indicted by the grand jury of this county, and charged with grand larceny, by stealing a check for $38.71,the personal property of one Henry G-raue, of the value of $38.71. The check was set out in haec verba, and was one drawn payable to the order of defendant, and indorsed by him. The defendant was found guilty by the jury which tried him, and the value of the property stolen, was assessed at $38.71. A motion for a new trial was overruled and exception taken, and the defendant sentenced to be imprisoned in the penitentiary for the period of one year. A bill of exceptions containing all of the evidence, the charge of the court and exceptions thereto, and the refusal of the court to give certain instructions to the jury asked by the defendant, with the exceptions to such rulings, was duly allowed by the trial court, and the question presented is, whether in any of those rulings the court erred to the prejudice of the defendant.

It is first objected that the copy of the indictment served upon the defendant was not a true copy,in that it described the property stolen as that of Henry Graue. We do not see how the question arises upon the record; but if it were properly presented, we do not see how it could avail the defendant. If it was not a true copy, he should have raised that question before going to trial, but he did not do so.

The evidence tended to show that the defendant held the check in question, payable to his order, and with others went to the place of business of Graue to have it cashed, as they were accustomed to do. The wife of Graue was attending to the business for her husband, and after cashing checks for others, asked defendant if he wanted one cashed. He said he did, and showed it to her, or told her the amount of it, and she told him to indorse it, and he went to a desk and did so. She then paid him the amount of it. Whether he laid it down on the table or not, or whether Mrs. Graue ever had it in her hands, is disputed; she thinks it was laid on the table. The defendant denied this, and says that it. was never out of his possession, and that when she paid him the money, he put it back with the money into his pocket and went away with it, and did not discover that he had it until late in the afternoon of that day,several hours after the transaction at Graue’s. That he then determined to return it to her. That night however, he bought a watch and paid for it, in whole or in part, with the check, intending to go to Graue, and return the money. So much of the evidence is given to show the relevancy of the special charges asked by the defendant to be given to the jury.

The following are special charges asked to be given to the jury, and which were refused, and exceptions taken:'

1. The court instructs the jury that if the defendant,after indorsing the check, did not leave check upon counter, but immediately put the check in his pocket,and that afterwards Mrs. Graue paid him'the money, never having had the check in her possession, and that it was not left upon counter or in anyway delivered to Mrs. Graue, then the legal property in said check was not in said Graue, and the subsequent use of said check was not larceny by defendant.

2. The court instructs the jury that if the defendant took up the check inadvertently, with no intention of stealing it, and afterwards finding it in his possession, intended at the time of the discovery to return the check or the money received thereupon to Mrs. Graue, and maintained that intention throughout, and intended at the time of purchasing said watch from Tbalen, to return said money to Mrs. Graue, then his offense was not larceny.

We think that both of those charges asked for, were correct, and should have been given by the court.

To make the check the property of Graue, first, it should have been delivered to Mrs. Graue. This delivery must be actual or constructive. If the testimony of the defendant was true, (as for this purpose must be conceded, because he testified to it, and the jury might have believed his statement), there was no delivery to her, either actual or constructive. He says she never had manual possession of it; it was not laid down on the counter for her, and it remained in his possession all the while.

If he had inadvertently taken it away with him,it is clear that there was no felonious intent on the part of the defendant at that time. If on discovering that he had it, he in good faith determined to return the check or the money, he might do either. If when he disposed of the check, he in good faith intended to return the money to her, the felonious intent was absent at that time, and such transfer of the check was not larceny.

Wedon O’Neal, attorney for Plaintiff.

Prosecuting Attorney, contra.

The doctrine of those charges was not given to the jury by the court in its general charge, and we think the court ened in refusing to give the special charges, and the judgment is therefore reversed.


author: Swing, J.

text:
    (First Circuit—Hamilton Co., O., Circuit Court,
    January Term, 1896.)
    Before Smith, Swing and Cox, JJ.
    REED v. JORDAN, et al.

      Husband’s title to deceased ivife’s personal estate under law of Kentucky.

    Under the law of Kentucky, which gives to the husband the surplus of the whole personal property of his wife after payment of claims and debts, her personal property goes to the administrator of her estate, and the administrator, and not the husband, can bring suit to recover the same.

      Want of right of plaintiff to bring action — Failure to set up in pleading.

    Want of right of plaintiff to sue may be taken advantage of by demurrer to the petition, or by answer. But where this has not been done, but plaintiff’s right to recover depends on his title to the property sued for, and plaintiff fails at the trial to show such title, this is a failure of proof,and he can notrecover a judgment for it.
   Swing, J.

Appeal from the Court of Common Pleas of Hamilton County.

The admitted facts of this case are:

First — 'That plaintiff married Mary Reed, April 3, 1862, and that they continued to live together as husband and wife in the State of Kentucky, up t,o the death of said Mary Reed, which occurred April 29, 1885.

Second — That while the said marriage relation existed between them, to-wit: on the — day of--- 1880 or 1881. The said Mary Reed became the owner of twenty shares of stock of the Little Miami Railroad Company.

Third — That on the — day of June, 1882, the said Mary Reed, without his, plaintiff’s knowlege or consent, attempted to assign and transfer to defendant John Jordan, her son, the twenty shares of said stock, and that the same was transferred to said Jordan upon the books of said company.

In his petition plaintiff, in addtion to setting forth the above facts,says: “In Kentucky a husband is entitled to the personal property and choses in action which his wife has at the time of the marriage, or which she afterwards acquires, and that he can sell or control the same at his pleasure, and that he may reduce her choses in action to possession or not, as he may desire, and that the wife has no power whatever to sell or dispose of the same, or any part thereof, without the consent or authority of the husband, and that upon the death of the wife it is provided by the statutes and laws of said State (Kentucky), as passed by the general assembly ofJsaid|State, and in force at the time of the death of said Mary Reed, and previously thereto, that, “When any personjshall die intestate as to his personal estate, or any part thereof, the surplus after payment of funeral expenses, chargesjpf administration and debts, shall pass and be distributed among the same persons and in the same proportion to whom and in which real estate is directed to descend, except as follows: “Thirdly — A husband shall have the whole surplus of a deceased wife’s personal estate.”

Plaintiff further alleges that said pretended transfer was without his consent or knowledge. The prayer of plaintiff’s petition is that the defendant Jordan may be restrained from assigning said stock, and that defendant Railroad Company be restrained from transferring said stock, and that he be decreed to be the owner of said stock.

This case was argued very ably to us orally, some time ago, and this was supplemented by full briefs by either side. The main questions presented have been very difficult for us to arrive at any satisfactory conclusion about it, although we have repeatedly gone over them. And at last we have determined the case on a question just mentioned in argument and one which we have not considered in our frequent discussions of the case in Chambers, until within the last few days. The question is this: Who is the owners of the shares oflstock, taking the .allegations of the plaintiff’s petition^to^be true? Is the plaintiff the owner ? Plaintiff does not say that he is the owner of said shares of stock, but he asks that by reason of the facts set forth in his petition he may be decreed to be the owner of said stock. Now, what does the petition show as to who is the owner, or who is entitled to sue for the stock ? It says the stock was his wife’s; that she'lhad no right to dispose of it; that she is dead, and that^by the laws of Kentucky, the place of her domicile, the surplus, after the payment of funeral expenses, charges of administration and debts, shall be * * * “except a husband shall have the whole surplus of a deceased wife’s personal estate.’’ That is to say, after the payment of all the debts of Mary Reed, the wife, and the costs of administration of her estate, the husband is entitled, on distribution, to the surplus.

If he is entitled’to the surplus, can he maintain this action?

“The title to real estate vests in him by the death of the owner. The legal title to personal estate by such death vests in the executor or administrator, and is transferred, to the persons beneficially interested by the distribution.’’ 1 Bouvier, p. 489.

Judge Welch, in 25 Ohio St. 674, says: “In the first place the action J.s not brought by the proper parties. If this is intestate property, it belongs to the personal estate of the testator, and' any action to recover it, or its value, must be brought by his executors or administrators, and not by his heirs. This doctrine is too well settled to need any citation of authorities.’’

The statement of Judge Welch, in the above case, is not carried into the syllabus, and therefore is not the law of that case, but we can see no reason to question its correctness. If it]is the*law,it would seem to decide the two questions presented^in this case, viz: First, that the property. belongs to the estate of Mary Reed, and does not belong to the husband, the plaintiff. That is, that the legal title is not in him; and, second, that an action for the recovery of the property must be brought by his personal representatives.

Simrall & Mach, for plaintiff, Reed.

Wm. Worthington, for Little Miami R. R. Company.

Ramsey, Maxwell & Ramsey, for Jordan.

But it is urged that under section 5064, Revised Statutes, this should have been taken advantage of by a special demurrer, or answer. If the plaintiff can recover in this case it must be on the strength of his title. If he does not show title to the property claimed, he can have no judgment for it. It is a failure of proof. It is not a question of his capacity to sue, but of his right to recover. If a general demurrer to the petition had been filed, it should have been sustained, and if there is no cause of action, there should be no judgment. The petition should therefore be dismissed without prejudice to the right of the administrator to bring action.


text:
    (First Circuit—Hamilton Co, O., Circuit Court
    January Term 1896.)
    Before Smith, Cox and Swing, JJ.
    ADA CRUMLEY, Administratrix, vs. The C., H. & D. R. R. Co.

      Failure of B. B. Co. to supply customary appliances — Ohio Statute of 1890—

    Where an accident occurs to an employe of a railroad company, as a result of the absence of an appliance upon the locomotive which it is customary to provide, the company is placed 'in the same position under the Act of 1890 as though the appliance had been furnished and the accident had resulted as a consequence of its defective condition.

      Same — Negligence—
    And independent of the above statute, it would be negligence on the part of the company not to provide such appliances as it is customary for railroad companies to provide for work of the same character.

      Same — Failure to provide pole for use of switching—
    Where a locomotive is-not provided with a “pole” for use in switching, and as a consequence a train crew resort to the “flying ' switch” method, and one of their number, while acting under instructions and not himself negligent, is injured, the absence of the pole will be regarded as the proximate cause of the injury.

      Same — Appeal from knowledge of court to its ignorance—
    An appeal can not be permitted from our knowledge to our ignorance, by claiming the evidence does not show that any one run over by a train, while in the discharge of his duty under such circumstances, did not purposely throw himself under the wheels.

      Same — Question for jury—
    A case presenting such facts as these should be submitted to the jury, and a court is not warranted in directing a verdict for the defendant.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

The question presented in the case is whether the court of common pleas erred in withdrawing the evidence offered by the plaintiff from the consideration of the jury and in directing a verdict to be returned for the defendant company, no evidence having been offered by the defendant.

The evidence offered by the plaintiff either showed or clearly tended to show the following facts: Plaintiff’shusband and intestate was a brakeman in the employ of the defendant, and at the time of his injury and death, January 17, 1893, was acting as such on a freight train of the defendant running north from Cincinnati to Dayton. When the train reached Maplewood, about one o’clock in the morning of that day, it was cold and snowing, and there were several inches of snow on the ground. They found there, standing on the side track, six cars which were to be taken north by the train. This train was in charge of a conductor, and there was one other brakeman. On such trains the conductor is the superior officer, and the brakemen are subject to his orders. The safe and usual method of taking up freight cars standing on a switch, as in this case, is by means of a pole, by which they are pushed to the desired place by .putting one end thereof against the engine and the other against the cars to be added to the train, and freight engines on this and other railroads are usually supplied with such a pole. To take up cars by a running or flying switch is dangerous, as in such case the brakeman who is called upon to discharge the duty of uncoupling them from the engine, has to do it while the train is in motion and while he stands on the front of the engine, and there is great danger that in doing this he will fall to the ground and be run over by the following cars.

On this engine or train on this night there was no such pole, as it was drawn by a passenger engine, which usually is not supplied with one. On reaching Maplewood the conductor and Crumley, the brakeman, looked for a pole on the engine and cars with which to do the switching, but there was none there, and they looked about the station and neighborhood to find one, but could not do so. The inference from this is strong that the conductor, at least, knew that a pole should be used in such cases, but not being able to find one, they proceeded under the direction of the conductor to shift the six cars standing on the side track to the main track by means of a flying switch. The engine pulling five freight cars ran onto the side track, and Crumley, as it was his duty to do, attached the six cars to the front of the engine, which then backed down, pulling the six cars toward the main track,and in attempting at the proper time, and from all that appears, in the proper manner, to uncouple the six cars from the front of the engine by drawing out the pin, so as to allow the engine to proceed without them and make the running switch, he fell to the ground and was run over and killed by the cars following the engine.

The law of 1890, vol. 87, 149, was in force at the time of this occurrence. Section 2 of the act provides as follows:

“Section 2. It shall be unlawful for any such corporation (railroad Company) to knowingly or negligently use or operate any car or locomotive that is defective, or any car or locomotive upon which the machinery or attachments thereto belonging, are in any manner defective.! If an employe of such corporation shall receive any injury by reason of any car or locomotive,or the machinery or attachments thereto belonging, owned and operated, or being run and operated by such corporation,^ such corporation shall be deemed to have had knowledge of such defects before, and at the time such injury is so sustained, and when the fact of such defect shall be made to appear in the trial of any action in the courts of this state, brought by such employe or his legal representatives against any railroad company for damages on account of such injuries so received, the same shall be prima facie evidence of negligence on the part of such corporation.”

And Section 3 makes the person in the employ of the company having the power to direct or control any other employe of such company, the superior of such other employe, and not his fellow servant.

Under this section the question may arise whether the absence of a pole in this case brings the case within the letter or spirit of the section. It having been shown that it is an appliance almost essential for the safety of brakemen in the shifting of such cars from one track to another, and thus dispense with the danger of making a flying switch, and that other companies and this one was accustomed to be supplied with the use of them, it would seem that independent of the statute it would be negligence and want of care not to have one on a freight train for this purpose if such work has to be done. But we also think it comes within the spirit at least of this statute, as much as if there had been one, and it was defective, and by reason of such defect the brakeman had been injured, in which case the company would be liable. And so here,if the absence of a necessary appliance was proximately the cause of the injury to the plaintiff, it should also be liable unless he had by his own negligence contributed to the injury.

Was the absence of the pole, then, and the consequent resort to the flying switch, the proximate cause of the injury to plaintiff’s intestate? The question is not free from doubt. It is manifest, however, that in all probability he would not have been injured if the flying method of shifting the cars had not been adopted. But it was adopted, and in carrying it out, the brakeman came to his death in a manner unusual, but incident to this mode of operation; and it seems to be the doctrine of the law, that a person who is injured may recover damages therefor against another who does an unlawful or negligent act as to him, if it be established that the injury was reasonably connected with the want of precaution as a cause, and that he himself was not guilty of contributory negligence (see 111 U. S., 228); and it seems to us that there was evidence, as in this case, showing or tending to show the dangerous character of the mode of switching resorted to, and the failure of the company to provide the usual appliance to obviate the necessity for making a running switch, and by its officer in charge directing the switching to be made in this way, and then the brakeman was injured in the manner that was not uncommon in such cases; that this failure and conduct on the part of the defendant company was negligence, and was the proximate cause of the injury to plaintiff’s intestate. At all events,it could not be said as a matter, of law that it was not, and, at the least, should have been submitted to the jury as a question of fact under appropriate instructions.

In this case there was no evidence tending to show that there was any contributory negligence on the part of the plaintiff’s intestate other than this, that he attempted to carry out the directions of his superior officer. But this he did, so far as appears, in the usual and ordinary way. It is urged by counsel for defendant in error that, as the evidence does not show exactly how the accident occurred, or that it did not result from some negligence of Crumley himself, that the trial judge was warranted in directing a verdict to be rendered for the defendant. It is true that the evidence on this point was not very full or explicit, it being given by the conductor himself. He says: “The engine, then, (after being attached to the six cars on the side track) “began to back, pushing the five cars which were in the rear of it, and pulling the six cars which had been standing on the side track towards the main track. When near the main track Crumley, while in the act of pulling the pin to uncouple the six cars from the front of the engine, fell to the ground and was run over by the cars which were following the engine. ’ ’ Here certainly was evidence which did not tend to show negligence on the part of plaintiff’s intestate, but did naturally lead to the conclusion that he fell from the engine while discharging his duties properly; and we see no force in the suggestion that for all there appears, he might have voluntarily and intentionally thrown himself under the wheels of the following cars. It will not do to indulge in mere matters of speculation, with no evidence to support it, or appeal from our knowledge to our ignorance.

It is also urged that Crumley knew that it was dangerous for the brakeman who makes the flying switch, as in this case, and that by entering the service of the company he assumed the risk. As to this it is sufficient to say that so far as the evidene shows, this was the first running switch ever made upon the road, and there is nothing to show that Crumley knew of the danger, other than that he assisted in looking for the pole that night. He had a right to assume that the train would be supplied with the proper appliances, and that hazardous methods would not be resorted to.

In our view the several questions raised should have been submitted to the jury on the evidence offered, and the court was not warranted in withdrawing it from the jury, and directing a verdict for defendant.

Thomas L. Miehie and John W. Wolfe, for plaintiff in error.

Ramsey, Maxwell & Ramsey, contra.

The judgment will therefore be reversed, and the case remanded for a new trial.


author: Haynes, J.,

text:
    (Sixth Circuit—Wood County, O., Circuit Court,
    April Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    LEVI SIMON v. THE NORTHWESTERN OHIO NATURAL GAS COMPANY.

      Gas and Oil Leases — Construction.
    Under the various leases and agreements involved in this case, the court holds that the defendant company should have proceeded to sink wells upon the parcel of land in question, within the time fixed in the agreement, to-wit: within five years, and that it had not the right to commence after the expiration of that time.
    Appeal from the Court of Common Pleas of Wood County.
   Haynes, J.,

This is an action brought to declare a forfeiture or an abandonment of a certain lease for oil or gas upon certain premises owned by the plaintiff Levi Simon, which lease has come into the possession of the defendant, a corporation.

An outline of the facts in the case is substantially this: On the 25th of -Tune, 1886, Levi Simon made a lease to The Palmer Oil & Gas Company, and granted to it the light to enter upon a tract of 60 acres off the north end of the northeast quarter of section twenty-nine (29), for the purpose and with the exclusive right in and upon said ■ premises to drill for and develop oil and gas and other valuable substances.

Then there is this stipulation:—

“It is further hereby agreed by and between the said parties, their successors and assigns that this contract and the rights and privileges herein granted and conferred shall continue and be in force for five years from the date hereof, cr so long as oil or gas or other valuable substances be found and developed upon said premises in paying quantities.”

And it is further agreed that “in case said party of the second part, their successors and assigns, shall not commence operations upon said premises within sixty days from the date hereof, then this contract may be terminated upon sixty days notice by either party.”

The Palmer Oil & Gas Company went into possession of the premises, and proceeded to and did sink a well which turned out to be a gas well. That contract was entirely substituted by another contract, or lease, that was made on the 13th day of September, 1886, being about two and a-half' months after the first lease or contract; which lease was made directly from Levi Simon to The Northwestern Ohio Natural Gas Company, the defendant herein, and it granted to it, the right to mine for and excavate petroleum, carbon oil, gas or water on a tract of land situate in section twenty-nine (29), Town three (3),Range eleven (11), Wood county, Ohio, containing one hundred and ten (110) acres, more or less, and also one half acre in the south-east corner of the north-east quarter (¿') of the south-east quarter (J) of section thirty. Now it is agreed, although the description is not a very clear description, that the land covered by this lease is thirty (30) acres of the sixty (60) acres contained in the first lease, situate on the east half (-J) of the northeast quarter (J) of the whole west half (-J-) of the north-east quarter (J), which would include the other thirty acres in the first lease and also the half acre in the south-east corner of the northeast quarter (^) of the south-east quarter (¿) of section thirty (30).

'This lease reads: “To have and to hold said premises, for the said purposes only, or either of them, unto the said party of the second part, its successors or assigns, during and until the full term of five (5) years next ensuing the day and year written above, or as long as oil or gas shall be found in paying quantities in said described land, or the said second party or its assigns continue to operate a pipe line over or through the same. ’ ’

The evidence shows that in pursuance of the lease, a well was sunk upon the half acre which was never operated. The well that was sunk upon the thirty acres in the north end of the north-east quarter of section twenty-nine proved to be a good gas well, and is to-day, I believe.

No other wells were sunk, and especially upon the eighty acres,being the west half of the north-east quarter of section' twenty-nine (29).

On the twentieth day of February, 1891, being some six months or more before the expiration of this lease, another arrangement was made between Levi Simon and The Northwestern Ohio Natural Gas Company, whereby the Company paid to Simon $4500,in money, and they received a deed from him of the east half (-|) of the north-west quarter (¿) of section twenty-nine (29), and conveyed the thirty acres on which the well was situated, and also the fifty acres on the south of it, which was simply put in to make a good title, and has no bearing upon the case at bar. He also conveyed all the gas and oil and other mineral or vegetable substances in or under the following premises: The east fifty acres of the north half of the south-east quarter of section thirty, except one-half acre out of the south-east corner thereof. Then there are provisions for the erection of derricks and the operation of the land for oil and gas, and then the deed provides: — '“It is understood and agreed between the parties hereto that this conveyance shallnotin any manner annul or affect the rights of the grantee herein acquired by the terms of the lease made by the grantor herein for the west half (-J) of the north-east half (-^) of said section twenty-nine (29) under date of September 13th, 1886, and duly recorded in volume D, page 157, of the records of leases of said county,”

It will be observed that that reserves to the grantees the eighty acres I have spoken of, being the east half of the north-east quarter. Then it continues:- — -“And it is understood that the payment of $1250, heretofore made by said Company to said Simon, was and is now stated to be in full payment of all the royalty and lease rental due or to. become due on the one hundred and ten (110) acres of land desribed in the aforesaid lease until such time, at the option of the lessee, grantee herein, other well or wells are drilled and the product taken therefrom, when the terms of said lease as to royalty on oil or gas shall apply to such additional well or wells on said 80 acres.”

It is admitted that the amount that has been paid for royalties on the thirty acres amounted to this $1250.00. That leaves the situation of the parties at that time as follows: The thirty acres is conveyed in full title to The North western Gas Company. Part of the fifty acres is conveyed, and there is reserved to the Company all rights acquired by the terms of the lease I have referred to in the west half of the north-west quarter of section twenty-nine, then the 80 acres. So that the lease, from that time on, simply applies to the eighty acres, and nothing more. The Gas Company held the eighty acres by the lease, and the rest it held in full title to use as it saw fit.

The $1250 it was said was paid by The Palmer Oil &Gas Company; but the testimony seems to show, though it is not material, that it was paid by the Gas Company.

Under that condition of affairs the Gas Company have recently, and for quite a while, undertaken to sink a well on that eighty acres, and when they attempted to do so, the plaintiff in his petition in this case filed June 8th, 1895 undertakes to prevent the defendant from doing so by an injunction, and the case came on for trial, and was tried in court of common pleas, and was brought to this court on appeal, and testimony has been heard upon it in this court.

There was a question raised upon the pleadings that should be first disposed of. The plaintiff having averred that this clause in the deed that I have read, which I will call an agreement, was not in it at the time it was executed, and that he did not know anything about it.

Testimony was offered to show that at Ihe time the deed was made and delivered, that clause was not in the deed; but we think, upon examination of the deed, and also from the testimony heard, that the contention of the plaintiff in that respect is not correct.

We think that agreement, as it exists and stands here at the present time, was in fact written in, and in the deed at the time it was signed and delivered by Levi Simon to The North-western Ohio Natural Gas Company. Whether Levi Simon fully understood all that was in it, and especially whether he understood the effect of it,may be a question; but that it was there, and was read to him and his wife, we have no doubt whatever, and we shall proceed to decide this case upon the theory that it was there in the deed, and was read to the parties, and was assented to by both parties.

The rights of these parties must depend upon a proper construction of this deed, and tnat, too, in regard to the eighty acres of land.

I will read again: — “It is understood and agreed by the parties hereto that this conveyance shall not in any manner annul or affect the rights of the grantee herein acquired by' the terms of the lease made by the grantors herein for the west half of the north-west quarter of section twenty-nine under date of September 13th, 1886,and duly recorded” &c.

The lease was, in fact, for more than that amount of land, but they simply recited that it was for that particular eighty acres. Then it provides: — “That the payment of $1250, heretofore made by said Company to said Simon, was and is now stated to be in full payment of all royalty and lease rental due, or to become due, on the 110 acres of land described in the aforesaid lease, until such time at the option of the said lessee, grantee herein, other well or wells are drilled.”

There was one well on the land at the time, and that was the well that had been sold by Simon to the defendant, and that was in full of that royalty. If any other well was sunk, after that time, the right to the royalty would follow.

Of course,the well having been sold to the Gas Company by Simon, no royalty could accrue to him, because he had ceased to be the owner of it.

Now we come to this lease, and the rights of the parties under it. The $1250 was to be in full payment of all royalty and lease rental due or to become due on the one hundred and ten acres of land until such time,at the option of said lessee,grantee herein, other well or wells are drilled and the product taken therefrom.' — •

Now it is claimed, as we understand, on the part of the Gas Company,that by virtue of this phrase “until such time, at the option of said lessee, grantee herein, other well or wells are drilled,” that they have the right to drill there wells at any time that may suit their convenience or judgment; or, if that contention be not true, they have the right to drill wells upon that eighty acres so long as gas or oil is found in the wells that are sunk upon the thirty acres; or that the lease is a total lease, and that the whole provision of it must apply to the eighty acres; that there could be no forfeiture of the eighty acres except upon such terms as would work a forfeiture of the thirty aires.

We think that a fair construction of this instrument will be substantially this: That the Gas Company reserves to itself in the deed the right to work this eighty acres or sink wells upon it, upon the conditions of the original lease; that is to say, that they shall proceed to sink wells upon that eighty acres to operate it within the terms of the original lease, or within the time stipulated in the original lease, within the five years.

George H. Phelps, attorney for Plaintiff.

Troup & Dunn, attorneys for Defendant.

These parties have, by their owfi. action, separated these lands, and any claim that can be made that the one hundred and ten acres was granted by the original lease, is destroyed by the fact that the parties have separated the lands.

The full title has been taken to the thirty acres by the Gas Company, and it leaves the eighty acres alone to be worked by the lessee; and when it says that the wells are to be sunk by the said lessee, the rights of that said lessee must be limited to the commencement of the lease, and the work must be commenced within the five years from the date of the original lease, dated in April, 1886, as otherwise it would seem to us that this deed would be indeterminate and indefinite, and void for want of certainty.

We think that construction is in accordance with the principles of equity that should govern between these parties, and that the lessor, Levi Simon, had a right to claim that the Gas Company should proceed to develop these lands within the life of the lease that he might have the use and enjoyment of the royalties, and that it was not his intention, nor the fair intention of the parties at that time, that the right of the Gas Company to sink wells should be indefinite and indeterminate.

Under our view of the case, upon that construction of the lease, after the expiration of five years, the Gas Company would have no right to sink wells upon that eighty acres, and therefore the injunction that is prayed in this case should be granted to prevent their doing so, the five years having already expired.