text:
    Dilcher v. The State.
    1. Perjury may be assigned on falsely swearing to the fact in. issue in au action ; to any circumstance which tends to prove or disprove such fact; to any circumstance or matter which tends to corroborate or strengthen the testimony upon such issue, or which legitimately affects the credit of the winesses giving such testimony.
    2. In an indictment for perjury, it is sufficient to charge generally, that the false testimony was iu respect to a matter material in the action in which it was given.
    3. Where the testimony of a witness goes directly to the matter in issue,— as in a dower case that plaintiff’s husband is alive, —and, to strengthen that testimony, the witness gives the place, date and number of times he has recently seen him, that they conversed together and had mutual recognition, an indictment for perjury will be good, which sufficiently negatives the truth of the particular circumstances thus given.
    4. Where the foundation is laid for contradicting a witness, by conduct or statement out of court inconsistent with his testimony upon a material matter, and such conduct oi statement is susceptible of different meanings, one of which would be inconsistent with the truth of such testimony, it is admissible in evidence, leaving the jury to determine which is the true meaning, and to exclude such evidence is error.
    Error to the Court of Common Pleas of Athens county.

      Re Steiguer cfe Jewett and E. A. Guthrie, for plaintiff in error:
    1. The court erred in overruling the testimony of Henry Dilcher, as to proposals of John E. Woodyardto obtain James M. Stewart’s deposition. 1 Wharton Ev. § 551; Commonwealth v. Beam,, 111 Mass. 438 ; Sanderson v. Nashua, 4 N. H. 492; Sloan v. Railroad Co., 45 N. Y. 126.
    2. The court erred in overruling the motion, on arrest of judgment and for a new trial, because the facts stated in the indictment do not constitute an offense against the laws of Ohio and the indictment is insufficient in law. The indictment does not sufficiently negative Stewart’s testimony. Rev. Stats. § 1221; Swan PL & Pr. 250; 2 Archibold Or. Pr. & PL 965 ; Rev. Stats. § 7353 ; 2 Bishop ,Ct. Pr. § 862 ; 3 "Wharton Cr. Ev. § 2259.
    False testimony does not constitute perjury, unless it is a fact material to the issue. 40 Wis. 107. Nor can it be predicated of immaterial statements made by a defendant as a witness. Wilson v. State, 47 Miss. 621; State v. Aikens, 32 Iowa, 403; State v. Trask, 42 Vt. 152.

      C. II Grosvenor and Emmett Thompkms, prosecuting attorney for the state:
    The rejection of Dilcher’s testimony as to the proposition of Woodyard to obtain Stewart’s deposition, was no error. The matter about which Woodyard was asked was not pertinent to the issue. It was collateral, and the defendant was bound by the answer of the witness. It was immaterial. It was not even sought to be shown that Woodyard made a corrupt or immoral proposition to Henry Dilcher, and so the evidence was wholly immaterial.
    2. As to the motion in arrest of judgment. The objection to the indictment comes too late. It should have been attacked by a motion to quash. Rev. Stats. § 7249. Or the defect is waived. Rev. Stats. § 7253.
    But the indictment is good beyond all doubt. Halleck v. State, 11 Ohio, 400 ; Rev. Stats. §§ 6897, 7221, 7215; Commonwealth v. Sargeant, 129 Mass. 115; Commonwealth v. Grant, 116 Mass. 17; State v. Hascall, 6 N. H. 358 ; Dodge v. State, 4 Zabr. 456; Reg. v. Schlesinger, 2 Cox C. C. 206; 11 Allen, 243; 22 Ohio St. 477.
    The issue in the civil action was this. The petition filed in 1881, averred that Col. John F. Martin, husband of the plaintiff, had disappeared more than seven years prior to the filing of the petition, and had not been seen or heard from since, and hence presumed he was dead. The answer denied this averment of the petition. The material fact was whether or not Col. Martin had been seen alive or heard from, within seven years prior to 1881. Stewart swore that he saw him in September, 1880, at the Deer Lodge, Montana, and had mutual recognition. If he did, the plaintiff’s case must fail. Hence his statement was material. It was, if untrue, “a falsehood to a material matter.” To have alleged that he did not see him. at any other time or place, would have placed upon the state the 'burden of proving what was impossible of proof, or else it would have been a “ matter not necessary to be proved.” In either case such an averment was not essential to the validity of the indictment. Wharton Am. Grim. Law', 5 ed, §§ 2213-2262.
   Doyle, J.

The plaintiff in error was indicted at the May term, 1882, for subornation of perjury. lie was tried at the January term, 1883, convicted and sentenced to a term in the penitentiary. In his petition in error, filed in this court by leave, he makes several assignments of error as occurring upon and subsequent to the trial, to his prejudice. We will consider but two of them. First. Overruling his motion in arrest of judgment, which presents the question of the sufficiency of the indictment, and second, excluding the evidence of Henry Dilcher, offered by the defense.

First. The indictment charged that one James M. Stewart, in his deposition, taken in Athens county, to be used in an action pending in Meigs county in a matter material to said cause, did falsely, willfully and corruptly depose, declare and swear certain matters then and there to be fact, to wit: that he the said James M. Stewart, met Col. Martin, (meaning JolinF. Martin the husband of said Mary Martin) in September, 1880, at Deer Lodge city, in Deer Lodge county, Montana, during two or three days; that he (the said Stewart) met him (the said Col. Martin) several times, and that they (the said Stewart and Col. Martin) conversed together and had mutual recognition ; whereas in truth and in fact the said James M. Stewart did not meet the said Col. Martin in September, 1880, at Deer Lodge city, Montana, during two or three days; and said James M. Stewart did not then and there meet the said Col. Martin several times, and they the said James M. Stewart and Col. Martin have mutual recognition, he the said James M. Stewart well knowing,” &c., and then proceeded by language sufficient under the authority of Stewart v. State, 22 Ohio St. 477, to charge that Dilcher suborned said Stewart to commit such perjury.

The action in Meigs county, in which the deposition of Stewart was taken, was by Mary Martin against Henry Dilcher, to procure the assignment of dower in lands of the defendant, formerly owned by John F. Martin, the husband of the plaintiff. She relied, in her petition, upon the legal presumption of the death of her husband, growing out of his absence for seven years without being heard from. The answer alleged that he was still in life. The materiality of Stewart’s testimony is apparent.

The defendant based his motion in arrest of judgment upon the grounds that the facts stated in the indictment do not constitute an offense against the laws of Ohio, and that such indictment is insufficient in law.

It is urged here that the court erred in overruling that motion ; that the indictment does not sufficiently negative the truth of Stewart’s testimony, the negations being in the nature of negatives pregnant, leaving an admission that all that was material in Stewart’s testimony was true, to wit: that Col. Martin was alive, and that the witness had seen him during the seven years.

If it could be maintained that such was the only material part of the testimony, and it so appeared from the indictment itself, the objection would be well taken. But we understand the law to be otherwise. A witness may be guilty of perjury, not only by swearing corruptly and falsely to the fact which is immediately in issue, but also to any material circumstance which legitimately tends to prove or disprove such fact; or to any circumstance which has the effect to strengthen and corroborate the testimony upon the main fact, or which affects the credit of the witnesses giving such testimony.

“ And it is spoken of as a reasonable opinion that a witness may be guilty of perjury in respect of a false oath concerning a mere circumstance, if such oath has a plain tendency to corroborate the more material part of the evidence.” See 3 Russell on Crimes, 12.

“ Where the evidence is simply to explain how it was the witness knew the thing which he states — as where, testifying to an alibi, lie mentions the person’s residence and habits to show he could, not be mistaken on the main point — here, since the incidental matter is calculated to incline the jury to give a more ready credit to the substantial part, it will sustain a conviction for perjury if willfully false.” Bishop Cr. Law, §§ 1034, 1037; Reg. v. Tyson, Law Rep. 1 C. C. 107; Reg. v. Overton, C. & M. 655; 45 E. C. L. 83; Commonwealth v. Grant, 116 Mass. 17; Commonwealth v. Sargent, 129 Mass. 115; Wharton Cr. Law, §§ 2229, 2230; Cr. Pr. & PI. § 158. It is not necessary to aver wherein the alleged false testimony was material; it is sufficient to allege generally that it was material, and the indictment need not charge more than is necessary to adequately express the offense. It is not necessary that the testimony upon which perjury can be predicated, must have the effect, if true, of establishing or deciding the matter in issue. It is sufficient if it has a legitimate bearing on that isssue. If it tends, within the rules of law to influence the court or jury in deciding that issue, it is material.

The material inquiry in the Meigs county case, as shown by the evidence on the trial, was whether Martin was alive — ■ whether he had been seen or heard from during the preceding seven years. Stewart’s testimony that he had seen him, without fixing time, place or circumstances, might have been wholly insufficient. To corroborate and strengthen that statement he said he saw him, not once, in passing, a long time before, at a distance (that would leave room for a conclusion of mistaken identity), but several times, on two or three different days, at Deer Lodge, in September, 1880, that they had spoken together and mutually recognized each other. The legitimate effect of each one of these statements was to strengthen his testimony as to the main fact, to make it impossible that he could be mistaken. Each one, was in that sense, and within the rule stated, material to the issue being tried, and being so material they were divisible, and perjury may be predicated on each.

While the indictment might be better drawn, there'is a negation of the truth of the testimony that he had seen Martin at Deer Lodge in September, 1880, several times, on two or three different days; or that there ivas any mutual recognition, and hence sufficient to support a conviction.

Second. The notice to take depositions in the dower case named Thursday, February 2, as the time of commencing the same. Stewart, did not appear on Thursday, and to keep the notice alive, Dilcher, plaintiff in error, was sworn and an immaterial question was put to him. Stewart not appearing on Friday another question was put to Dilcher for the same pin-pose.' On Saturday Stewart was examined in chief and cross examined on Monday following. On the trial of plaintiff in error one Woodyard testified for the state, to having several interviews with the accused, on the Thursday and Friday already mentioned, during which the depositions were kept open and that in one of such interviews the accused admitted to him (Woodyard) that at Harrison ville, Meigs county, Stewart had informed the accused that he had not seen or recognised Martin in Montana. This evidence, if believed, would have a strong tendency to establish knowledge on the part of the accused, that the testimony of Stewart was false. On cross examination Woodyard was asked, “Did you not on Saturday or Sunday, while Stewart’s deposition was being taken, at Pomeroy, in Meigs county, propose to Henry Dilcher, Senior, the father of defendant, and the defendant in the cause wherein said Stewart’s depositions were being taken, that if he would pay you for your services you would aid in procuring the testimony of said Stewart in said cause?” to which he answered, “I did not.” Henry Dilcher was called as a witness, and the defense at the proper time, offered to prove by him that Woodyard did make that proposition, at the time and place named, but the court refused to allow it to be done, and the defendant excepted.

It is insisted that the matter was so collateral that the defense was bound by Woodyard’s answer and could not contradict him therein. This is clearly wrong: the testimony should have been admitted.

The alleged proposition was made at Pomeroy. It does not appear that Woodyard knew that Stewart was giving his testimony or had consented to give it, or that a subpeena had been served on him. One of two things must be true if such offer was made , and the jury were the proper judges as to which one. The witness made the offer to procure the presence and testimony of Stewart, not kno.wing that such testimony, if favorable to Dilcher, would be false, — in which case it would be in direct conflict with his testimony on the trial, — or he made the offer corruptly, seeking for a compensation to aid in suborning a perjury, and, failing to obtain the consideration from the father, testified to the guilty knowledge of the son, in which case the jury had the right to the fact with any legitimate inference from it, of the state of feeling of the witness, and affecting his credibility as a witness.

Conduct inconsistent with the testimony of a witness, may be shown as well as former statements thus inconsistent. Certainly Woodyard’s proposal, if his services were paid for, to aid in getting Stewart’s testimony, was inconsistent with his statement to the jury, that both he and Dilcher know that such testimony would be false, unless such proposal was corruptly made. But the court was not the judge of that. The jury might, when all the facts were given, conclude that Woodyard was honest in that proposal, but corrupt in his testimony.

If the language or circumstance was capable of different constructions, the jury were to give the right one. The evidence was not to be excluded if in either aspect it tended to contradict. State v. Kingsbury, 58 Maine 242.

Upon no ground can the exclusion of this testimony be justified. It may be that, if it had been allowed, it would not have changed the conclusion to which the jury came, but they had a right to it for what it is worth. See Gaines v. Commonwealth, 50 Pa. St. 319; Commonwealth v. Bean, 111 Mass. 438; 1 Wharton Law of Ev. § 554; Hayden v. Stone, 112 Mass. 346.

Judgment reversed and cause remanded for new trial.


source: Caselaw Access Project

author: Upson J.

license: Public Domain

text:
    Sherwin & Co. v. Brigham.
    1. In order to render the writer of a letter'of credit liable, either upon an implied acceptance or an agreement to accept drafts taken on the faith-of such letter, the drafts must be taken for a valuable consideration.
    2. A promise to have the drafts discounted, and to take up notes on which the persons taking the drafts are liable as indorsers, is not a valuable consideration.
    3. If a letter of credit provides that drafts drawn under its authority shall be used only for the purpose of being discounted at a particular bank, persons taking such drafts, with notice that they'have been offered to the bank for discount and refined, cannot recover thereon.
    Error to the District Court of Cuyahoga county.
    In the year 1875, C. A. Brigham was doing business in Cleveland, under the name of Cleveland Furniture Company, and íd August and September of that year, the plaintiffs doing business under the name of Sherwin, Williams & Co., for the accommodation of C. A. Brigham, indorsed his two promissory notes, for $500, due November 16, and $1,500 due November 17, respectively, which were discounted at the Merchant’s National Bank.
    In October of the same year, C. A. Brigham had become embarrassed in business, and his brother, D. H. Brigham, the defendant, who resided in Springfield, Massachusetts, being informed of his situation, wrote to him as follows :
    “ Springeield, October 29, 1875.

      “ Dear Brother :
    I have been in New York this week — returned this morning — father laid your letter on my desk for repty, and in answer would say I wish we had known it before, but as it is, when you find yourself close up, draw on D. II. B. & Co. at the longest time your bank will discount the draft. Make it four months if they will, if not, three months, and we will honor it — one or two $1,000, drafts and trust it will make yon easy.
    “ Trade fair, weather cool, and watery to-day.

      “ Tours in haste,
    “ D. IT. Brigham.

      “ Father says he need not write now, as he wrote Sunday.”
    The initials D. II. B. & Go. in the letter, were understood by all parties to mean the firm of D. II. Brigham & Co., of which the defendant was a member, doing business in Springfield. On November 15, 1875, when the two promissory notes indorsed by plaintiffs were nearly due, C. A. Brigham called upon E. P. Williams, one of the plaintiffs; showed him the letter from D.' IT. Brigham, and requested said Williams in behalf of the plaintiffs to take two drafts drawn by C. A. Brigham on D. II. Brigham & Co.,for $1,000 each, payable ninety days after date to the order of Cleveland Furniture Company, and dated respectively November 12 and November 15, 1875. Williams w'as informed that the National Gity Bank, at which C. A. Bingham kept his account, had refused to discount the drafts, but on the strength of the letter agreed to take them and have them discounted at the Merchant’s National Bank, and take up the two promissory notes indorsed by plaintiffs. The drafts were left with plaintiffs in accordance with that arrangement, they giving therefor the following receipt:
    “ Cleveland, November 15, 1875.

      “ Received of Cleveland Furniture Company two thousand dollars, two drafts on D. II. Brigham & Go., Springfield, Massachusetts, to take up one note of $500 due November 15, and one of $1,500 due November 17.
    “ $2,000. Sherwin, Williams & Co.”
    The same afternoon the plaintiffs noticed that the drafts were indorsed “ Pay to the order of J. F. Whitelaw, Cashier, Cleveland Furniture Company,” and thereupon returned them to C. A. Brigham, with the request that he wmuld make new ones like those returned, omitting the indorsements, which he promised to do that afternoon. The next day, November 16, C. A. Brigham made a general assignment for the benefit of his creditors, and afterwards delivered the new drafts to the plaintiffs, at the same time notifying the defendant of the assignment.
    The drafts were not discounted, and were not accepted. The two notes indorsed by the plaintiffs were paid by them when due; The plaintiffs brought their action to recover the amount of the two drafts. No testimony was given to prove . any other material facts, on the trial of the action in the court of common pleas, and thereupon at the request of the defendant, the court instructed the jury “ that no evidence had been offered tending to prove a cause of action in the party plaintiffs, and that they should render a verdict for defendant.” To this instruction the plaintiffs excepted, and the jury having returned a verdict for the defendant, judgment was rendered thereon, which judgment was affirmed by the district court. This proceeding is prosecuted to reverse the judgment of the district court.

      Samuel E. Williamson, for plaintiffs in error.

      Prentiss efe Voroe, for defendant in error.
   Upson J.

The plaintiffs ash that the judgment of the district court, affirming that of the court of common pleas, may be reversed, on the ground that the court of common pleas erred in directing the jury to render a verdict for the defendant. There was no evidence tending to prove that the defendant was indebted to C. A. Brigham, or that there was any consideration, between them, for the defendant’s offer to honor his brother’s drafts. The defendant was to become an accommodation acceptor, and to sustain, in fact, the relation of a surety for C. A. Brigham. In order to render the defendant liable, either upon an implied acceptance of the drafts described in the petition, or upon an agreement to accept the same, it was necessary for the plaintiffs to prove that the drafts were drawn in accordance with the terms of the authority given by the defendant, and that the plaintiff's took them, for value, upon the faith of the letter of credit. It is doubtful whether the defendant’s letter can properly be called a letter of credit, - or was intended to be shown for the purpose of giving credit to drafts drawn by C. A. Brigham; but it is clear from its language that the defendant intended the drafts to be used only for the purpose of being discounted at the bank at which C. A. Brigham did business, the National City Bank, and the transfer of them to the plaintiff, with notice that the bank had refused to discount them, was in violation of the rights of the defendant, who is bound only by the very terms of his contract, and he is under no legal obligation to accept or pay such drafts. Stone v. Vance, 6 Ohio, 246; Clinton Bank of Columbus v. Ayres, 16 Ohio, 283.

But even if we were to regard the defendant’s letter as ageneral letter of credit, and the drafts held by the plaintiff, as being within its exact terms, it must still be proved that the drafts were taken for a valuable consideration. We are unable to find in this case any evidence tending to prove that any benefit accrued to the defendant, or to C. A. Brigham for whose accommodation the drafts were to be honored ; or any evidence tending to prove that any loss or disadvantage accrued to the plaintiffs by reason of their taking the drafts described in the petition.

The testimony relied on to show a consideration is, that C. A. Brigham made an arrangement with the plaintiffs to take the two drafts, have them discounted at the'Merchants National Bank, and take up the two notes mentioned in the petition, on which they were indorsers ; that the drafts were left with them in accordance with that arrangement, and that they paid the notes when due. The receipt given to C. A. Brigham by the plaintiffs is also referred to.

Prom this evidence it is clear that no new obligation was incurred by the plaintiffs. They did not have the drafts discounted and become liable thereon as indorsers. They gave no additional security, incurred no new responsibility and paid no money on the faith of the defendant’s promise. What they agreed to do in respect to the notes indorsed by them, and what they did, was no more than they were bound, by their contract, to do, before the defendant’s letter was written ; and when they paid the accommodation notes, they paid only the amounts, and at the times, therein specified.

We think the court of common pleas did not err in directing the jury to render a verdict for the defendant.

Judgment affirmed.


author: Okey, J.

text:
    Witte v. Lockwood.
    1. The general rule is that a defendant, is bound to set up every defense, legal or equitable or both, whicb he may have to the action, and waives those not pleaded ; but where the facts claimed to afford a defense are sufficient to constitute a Counter-claim, there is an exception to such general rule.
    2. A defendant relying solely on his legal title, in an action to recover the possession of real property, and failing, is not estopped to maintain an action to correct mistakes in the deeds under which the parties to such action respectively claimed. He has his election to rely on such equitable title as a defense or a counter-claim, or he may maintain an action thereon.
    Error to the District Court of Lorain county.
    In an action prosecuted by Philip Lockwood against Otto Witte, in the court of common pleas of Lorain county, to recover possession of a parcel of real estate, containing about 3,800 square feet, in that county, the only issue was with respect to the legal title, which issue was framed under the Civil Code, § 559, Rev. Stats. § 5782. No allusion was made in the pleadings or evidence to any mistake in any of the deeds in the chain of title of either of the parties. Judgment was rendered in 1876, on the issue joined, in favor of Lockwood for the recovery of such possession. That parcel of real estate is the property in controversy in this case.
    Lockwood being about to enforce the judgment, Witte, in 1877, commenced an action in the court of common pleas of Lorain county, against Lockwood and others, and obtained an injunction against such enforcement. In the petition he states that in 1849, Elam Fairchild was the owner of a certain tract of land, including the parcel above mentioned, and that through a series of purchasers of the whole tract, ho (Witte), became the owner thereof in 1870; that the purchaser from Fairchild paid him for the whole tract, and Fairchild put him in possession of the same, and executed and delivered to him a deed, intending thereby to convey to him the whole tract, but by mutual mistake of the parties, the parcel here in dispute was omitted; that the successive purchasers in like manner, bought, paid for, and were placed in possession of the whole tract, and received deeds which by like mutual mistakes omitted the parcel in dispute ; that he (Witte), is the owner in equity of the parcel in dispute, and entitled to have the legal title to the same ; and that the legal title to the parcel in dispute has passed from Elam Fairchild to Philip Lockwood, through successive purchasers, with notice of such adverse possession and consequently of his (Witte’s) rights; and that Lockwood had obtained, and was about to enforce a judgment for the recovery of possession of such parcel as already stated. Elam Fairchild was made a party, and also all the persons who claimed through him as aforesaid, and the prayer was that the several deeds should be corrected in the particular named, and that the judgment for the recovery of possession should be perpetually enjoined.
    Lockwood, in his answer, set up and relied on the judgment in his favor as a bar to the action. There was neither demurrer nor reply to the answer, but the district court at the trial on appeal to that court, excluded evidence offered by Witte in proof of the allegations of his petition, and Witte excepted ; and thereupon the court dissolved the injunction and rendered judgment in favor of Lockwood and against Witte on the ¡headings, and Witte prosecutes this petition in error to reverse the judgment.

      1. A. Webster, for plaintiff in error.

      Metcalf & Metcalf,\ for defendants in error.
   Okey, J.

The petition in this case contains allegations which, properly stated, would have constituted a good bill in chancery to reform the deeds, and lienee the petition is sufficient. Under the former practice, allegation and proof of such equitable title would not have been permitted in an action of ejectment, and hence it would have been necessary to resort to such a bill. But under the civil code “ the defendant may set forth in his answer as many grounds of defense, counter-claim and set-off as lie may have, whether they be such as have been heretofore denominated legal or equitable, or both” (§ 93, Rev. Stats. § 5071), and hence it is clear that the equitable title might have been set up as a counter-claim. 3 Wait’s Act. & Def. 113.. Furthermore, it might have been pleaded as a defense (Lancaster, etc. Co. v. Colgate, 12 Ohio St. 344), without demanding a remedy of an affirmative character ; but, whether this remedy is demanded or not, the answer should contain all the substantial facts that would be found in a cross-bill in chancery.” Pomeroy’s Rem., § 95; Powers v. Armstrong, 36 Ohio St. 357. In such equitable action, or in such counter-claim, it would be necessary to make all persons in interest parties. “ When the land has passed through several owners by a succession of conveyances, all the series of grantors, or their heirs if they themselves are dead, are necessary defendants.” Pomeroy’s Rem. § 371; Civil Code, § 96 ; Rev. Stats. § 5074. Equally cogent is the reason for holding such parties to be essential where the mistake is pleaded as a defense; for a judgment, on the equitable title, whether pleaded as a counter-claim or as a defense, or asserted in an independent suit, would operate, mutually, as an estoppel on the parties to the action and all claiming under them; and if such title may be set up in the answer as a defense, without making all persons in the chain of title parties, the rights of persons not parties to the suit will be, in many cases, virtually determined by the judgment.

The general rule is that a party when sued is bound to set up every defense, legal or equitable or both, which he may have to the action, and effectually waives those not pleaded. Life Ins. Co. v. Bangs, 103 U. S. 780 ; Ruegger v. Railroad Co., 103 Ill. 449; Tuttle v. Harrill, 85 N. C. 456. The claim that this is so in Ohio is strengthened by the fact that a leading object in the enactment of our code of civil procedure was to enable suitors and courts in each case, “ to avoid multiplicity of suits, and to attain a final and complete determination of all the questions involved in it, with the least possible delay and at the least possible expense.” Penn v. Hayward, 14 Ohio St. 302, 306. Rut we may fairly say that here the statute has made an exception. “ If the defendant omit to set up the counter-claim or set off, he cannot recover costs against the plaintiff in any subsequent action thereon,” except in cases specially provided for. Civil Code, § 95 ; Rev. Stafs. § 5073; Covington, etc. Co. v. Sargent, 27 Ohio St. 233; Swensen v. Cresop, 28 Ohio St. 668. The inference that a defense, where the same facts constitute a counter-claim, may also be withheld without estopping the defendant, seems to be irresistible. It follows that Witte had his election to plead his equitable title as a counterclaim or a defense, or reserve it as he has done, for a separate action. The New York code of civil procedure, from which ours is largely borrowed, had received a construction in accordance with the view here expressed, before- the adoption of our code (Halsey v. Carter, 1 Duer, 667); Mr. Pomeroy in his able work on the modern codes of civil ¡procedure, states the rule in the same way (Remedies & Rem. Rights, § 804); and we are led to the conclusion, after a laborious examination of the cases, that the position is imjiregnable. Lorraine v. Long, 6 Cal. 452 ; Hough v. Waters, 30 Cal. 309 ; McCreary v. Casey, 45 Cal. 128; Hills v. Sherwood, 48 Cal. 386; Dorsey v. Reese, 14 B. Mon. 157; Welch v. Hazelton, 14 How. Pr. 97; Lignot v. Redding, 4 E. D. Smith, 285; Insglee v. Hampton, 8 Hun, 230 ; Bellinger v. Craigue, 31 Barb. 534; McDonald v. Christie, 42 Barb. 36; Barth v. Burt, 43 Barb. 628; Gillespie v. Torrance, 25 N. Y. 306 ; Simeon v. Schurck, 29 N. Y. 598; Brown v. Gallaudet, 8 N. Y. 413 ; Schwinger v. Raymond, 83 N. Y. 192; Foster v. Evans, 51 Mo. 39, Gardinier's App. 89 Pa. St. 528; Mc-Ewen v. Bigelow 40 Mich. 215. And see Waterman on Set-off, § 689. Indeed, the circumstance that new parties were necessary may have afforded, as in Coates v. Chillicothe Bank, 23 Ohio St. 415, a strong reason why it may have been the better course to seek relief by independent suit.

An examination of the Ohio cases (cf. Covington, etc. Co. v. Sargent, supra; Roby v. Ramsberger, 27 Ohio St. 647 ; Swensen v. Cresop, supra; Porter v. Wagner, 36 Ohio St. 471), shows an apparent conflict in the syllabi or head-notes. Although in this state such head-notes are prepared by the judges, and in all cases receive the assent of a majority — a practice with which we are well satisfied — they are always to be read in connection with the facts appearing in the report, and so read, the cases are not in conflict, nor are they in conflict with the principles asserted in tins case.

Judgment reversed.

MoIlvaine, J., dissented from the second proposition in the syllabus.


author: McIlvaine, J.

text:
    Norton v. Blinn.
    While courts will not enforce an illegal contract betwen the parties, yet, if an agent of one of the parties has, in the prosecution of the illegal enterprise for his principal, received money or other property belonging to his principal, he is bound to turn it over to him, and cannot shield himself from liability therefor upon the ground of the illegality of the original transaction.
    Error to the District Court of Lucas county.
    About the first of May, 1872, Chester Blinn placed in the hands of Jesse S. Norton, at Toledo, Ohio, the sum of $500 to be by him invested as agent for Blinn in options on wheat at Milwaukee, Wisconsin, or Chicago, Illinois, with instructions to invest the money as he would his own. Norton, through his brokers, James Keller & Co., immediately purchased in his own name, but for the sole benefit of Blinn, five thousand bushels of wheat at seller’s option for June delivery at $1.42£ per bushel, and deposited the money of Rlinn as a margin of ten cents per bushel. At the date for delivery the price of ■wheat* had advanced so that a profit of $325 was realized on the transaction. This money, principal and profit, was reinvested by Norton in subsequent transaction of like nature for Blinn’s benefit, but by reason of a decline in the market price of wheat in the latter part of June, the whole amount was lost.
    These transactions were mere speculations or ventures on the future price of wheat, without any intention that the wheat would be either paid for or delivered, but with the intention that settlement between the buyer and seller would be made on the difference between the price stated in the contract and the market price at the date named for delivery. Such transactions were unlawful in the states of Illinois and Wisconsin, as well as in the state of Ohio.
    The original suit was brought in the court of common pleas of Lucas county by Blinn against Norton to recover the sum of $825, (the sum advanced and profit on the first venture,) with interest.
    On the trial testimony was offered by the plaintiff tending to prove that defendant had no authority to invest plaintiff’s money save in a single purchase, namely, the purchase of 5,000 bushels as above stated, whereupon the plaintiff requested the court to instruct the jury as follows :
    “ If the jury shall find from the testimony, that on or about the time stated in the petition, the defendant received from-the plaintiff the sum of $500 of the money of the latter, under an arrangement that the same should be invested by the defendant in wheat transactions, of the illegal character mentioned in the answer, for the benefit of the plaintiff ; that said money was so invested by the defendant, and a profit realized thereon ; and that before the commencement of this action said sum of $500, and the profits so made, came into and are still in the hands of the defendant; or that he received credit therefor in the final settlement of his accounts with the brokers through whom said business was transacted, then the plaintiff is entitled to recover said money from the defendant; nor, in such case, can the defendant avoid his liability to account for said moneys by showing that by the understanding between the plaintiff and himself, said money was to be employed in illegal transactions in wheat of the nature stated in his answer ; and that said money was employed; and said profits realized in such transactions.” ' 0
    Which charge the court refused to give, and to such refusal the plaintiff, by his counsel, then and there excepted.
    The verdict of the jury was in favor of the defendant, and judgment was rendered accordingly. This judgment on petition in error was reversed by the district court, and this proceeding is to reverse the judgment of the district court.

      Haynes de Potter, for plaintiff in error:
    An agreement for a sale for future delivery is a gambling contract and as such not enforceable, where the intention is that there shall be no actual sale, but only that at the time fixed for delivery the parties shall settle and the purchasers pay or receive the difference between the agreed price and the market price at the time, according as the market price is less or greater than the agreed price. Barnard v. Backhaus, 52 Wis. 593; In re John Green, 7 Biss. 338; Pickering v. Cease, 79 Ill. 328; Lyon v. Culbertson, 83 Ill. 33; Matter of Chandler, Am. Law Reg. N. S. 13, 310 ; Fareira v. Gabell, 89 Pa. St. 89 ; Ruchizky v. DeHaven, 97 Pa. St. 202; Gregory v. Wendell, 39 Mich. 337 ; Rumsey v. Berry, 65 Me. 570.
    If Norton had agreed to go forward and advance money from time to time on this contract, which Blinn should repay to him, Norton could not recover from Blinn on this contract the money so advanced. Several of the cases above cited are of that character, and are between principal his agent or factor. See Ruchizky v. DeHaven, 97 Pa. St. 202 Fareria v. Gabell, 89 Pa. St. 89; Barnard v. Backhaus, 52 Wis. 593; Rumsey v. Berry, 65 Me. 570 ; Gregeory v. Wendell, 39 Mich. 339.
    If Blinn had not sent to Norton the $500 Norton advanced upon the first option and Norton had lost that amount of money, ho could not, we submit, liave compelled Blinn to pay it on such an agreement under the decisions of the above cases.
    Shall Blinn be in better position than Norton? If the contract is not to be enforced as to the one, shall it be as to the other ?

      C. II. Scribner and J. If. Ritchie, for defendant in error:
    •The real question is as to whether or not an agent, who has received moneys from his principal to be invested in such transactions, and who has realized upon them, may put the •money in his pocket and keep it.
    Wharton Agency §§ 28, 250; 2 Kent’s Com. (11th ed.) 613, 14; Wood on Master and Servant, 394 § 202; Ewell’s Evans on Agency, side page 31, note 1 ; Id. 327, note 1; Brooks v. Martin, 2 Wall. 70; Murrey v. Vanderbilt, 39 Barb. 140; S. C. Zinn’s Lead. Cas. on Trusts, 103; Tenant v. Elliott, 1 B. & P. 3; Farmer v. Russell, 1 B. & P. 295 ; Bousfield v. Wilson, 16 M. & W. 185 ; Johnson v. Lansley, 12 C. B. 468; Baldwin v. Potter, 46 Verm. 402; Evans v. City of Trenton, 4 Zab. N. J., 764-771; Pointer v. Smith, 7 Heisk. (Tenn.) 137; German, &c. Church v. Stegner, 21 Ohio St. 488. See, also, Insurance Co. v. Ellis, 32 Ohio St. 388.
   McIlvaine, J.

While it has ever been the policy of the law to leave the parties to an illegal transaction where it finds them by refusing relief to either in respect thereto, it has, oii the other hand, never regarded property or money employed therein or produced thereby as common plunder to be seized or retained by others in no way interested in such business.

The question, however, in this case, arising on the refusal of the court of common pleas to charge the' jury as requested by the plaintift is : May an agent who has transacted illegal business for his principal and has received money belonging to his principal and accruing from such business, defend himself, in a court of law, against liability to account therefor, by showing such unlawful business and his connection therewith as such agent ?

If tlie agent receiving such money had not been employed in conducting such business, it would seem to be quite plain, upon principles of purest morality, that-he should account to his principal therefor; but where the sole employment of the agent was to manage and conduct the unlawful transactions, it seems to me, a much more difficult question arises. In the latter case the agent is a partioeps eriminis. In offenses against trade, and the like, the law, regulating the administration of penal justice, does not recognize the relation of principal and agent, unless the agent be an innocent instrument merely. In such cases the guilty offenders against the law are all principals; hence, as between such, with some show of reason it might be said, that the law will afford no redress by civil remedies.

The rulings upon this question, however, have been so uniformly the other way, it becomes our duty to follow them, unless we find them totally repugnant to public policy and and morality. Upon a careful examination of the authorities, we find no such repugnancy — indeed they commend themselves to our judgment.

In the first place the rulé which denies civil remedies in such cases applies only to the parties to the illegal transaction. Public policy does not require that one engaged in an unlawful enterprise should, by pleading it, shield himself from liability for the wages of his employees, agents or servants. It is enough that the rule should be enforced as between those who have some interest in the enterprise as principals.

In the second place, it is contrary to public policy and good morals, to permit employees, agents or servants to seize or retain the property of their principal, although 'it may be employed in illegal business and under their control. No consideration of public policy can justify a lowering of the standard of moral honesty required of persons in these relations.

And again, if parties to an illegal contract, waive the illegality, and honestly account as between themselves, no other person can be heard to complain of such accounting. Hence, we think, that if in making such' settlement one of the guilty parties should deliver property or money to an agent of another to be delivered by the agent to his principal, such agent is bound to account therefor to his principal.

A leading case on this question is Tenant v. Elliott, 1 Bos. and Pul. 2, where the defendant, a broker, affected an illegal insurance for the plaintiff on a ship, and after a loss the underwriters paid 'the amount of the insurance to the defendant, who refused to pay the same over to plaintiff, on the ground that the insurance contract was illegal. Judgment for the plaintiff. Eyre, C. J., said : The defendant is not like a stockholder. Whether he who has received money to another’s use on an illegal contract, can be allowed to retain it, and that not even at the desire of those who paid it to him ? I think he cannot.”

In Brooks v. Martin, 2 Wall. 70, it was held by the supreme court of the United States, that “ After a partnership contract confessedly against public,policy has been carried out, and money contributed by one of the partners was passed into other forms — the results of the contemplated operation completed, a partner in whose hands the ¡profits are, cannot refuse to account for and divide them 'on the ground of the illegal character of the original contract.”

In Baldwin v. Potter, 46 Vermont, 402, it was held that “ an agent is bound to account to his principal for money received in the course of his agency, for goods sold by his principal on orders obtained by him as such ageut on commission, although such sales as between the principal and purchaser be illegal and void.”

In Evans v. Trenton, 4 Zab. 764, it was held “ The mere agent of a party to an illegal transaction cannot set up the illegality of the transaction in a suit by his principal to recover money that has been paid to such agent for his principal on account of the illegal transaction. This defense can be set up only by a party to the illegal transaction.” In this case the illegal transaction was accomplished through the agent.

See also Wood on Master and Servant, section 202, where it is said:

While the courts will not enforce an illegal contract, yet, if a servant or agent of another has, in the prosecution of an illegal enterprise for his master, received money or other property belonging to the master, lie is bound to turn it over to him, and cannot shield himself from liability therefor upon the ground of the illegality of the original transaction.”

The doctrine of these authorities, and many others which might be cited is recognized, applied and enforced in German, &c. Church v. Stegner, 21 Ohio St. 488, wherein it is held: “ While a protniss'ory note given to and discounted by a corporation for a loan of money in the course of an unauthorized banking business will not be enforced, yet where the treasurer of such corporation has taken and appropriated to his prívate use moneys deposited with it contrary to the statute against unauthorized banking, and being unable when called on to refund the.same, secures it by his promissory note, such note will not be held to have been given in the course and furtherance of an illegitimate business, and an action will lie thereon.”

Ludgmetit of district court affirmed.


author: By the Court.

text:
    Board of Education v. Wilkins.
    Under section 3944, B. S., the probate court has power to confirm the report of a commission, appointed under section 3950, B. S., as amended April 12, 1880 (77 O. L. 186), to dissolve a joint sub-school district.
    Error to the District Court of Putnam county.

      C. cT. Swan, for plaintiff in error.

      J. L. II. Long, for defendant in error.
   By the Court.

In proceedings had in 1880, under-section 3950 of the Revised Statutes as amended April 12', 1880 (77 O. L. 186,) to dissolve a joint sub-school district, a commission was regularly appointed, and, afterwards, such commission reported to the probate court in favor of such dissolution. Held, the probate court had the same power to confirm the report that it had under section 3944, R. S., to confirm the report of a commission establishing such sub-district, although section 3944 is not mentioned in the enumeration in section 3950 as amended.

Judgment of district and common pleas courts reversed and that of the probate coiirt affirmed.


text:
    Stewart v. The State.
    A brother-in-law and sister-in-law are, within the meafting of the statute prescribing the punishment of incest, nearer of kin, by affinity, than cousins.
    Motion for leave to file a petition in error to the Court of Common Pleas of Washington county.

      Nye Oldham for the motion.

      D. A. Hollingsworth, attorney-general, and L. W. Ellen-wood., prosecuting attorney, contra.
   By the Court.

The defendant, Stanton E. Stewart, was indicted for incest, the indictment charging him with having committed adultery with one Etta Drake, “ the said Stanton E. Stewart, and the said Etta Drake being then and there nearer, of kin by affinity, than cousins, to wit, the said Etta Drake being-then and there the sister by affinity, said relation being commonly known as sister-in-law, of the said Stanton E. Stewart,” and the only question presented is, whether the indictment contains a sufficient statement of the relationship between the defendant and Etta Drake. It is claimed that the indictment is in this respect bad : 1st, because it does not state how the relationship was created, and that it still subsists, and 2d, because no relatives by affinity are nearer of kin than cousins by consanguinity, there being no mode .of comparison between relatives by affinity and relatives by consanguinity.

The first objection to the indictment is disposed of by the decision in the case of Noble v. The State, 22 Ohio St. 541.

The second objection cannot be sustained. The statute prescribes the punishment of persons having sexual intercourse, who are “ nearer of kin by consanguinity, or affinity than cousins, having knowledge of their relationship,” and we are of opinion that under this statute the degrees of relationship •by affinity are to be determined in the same manner as degrees of relationship by consanguinity, and that a brother-in-law and a sister-in-law are, within the meaning of this statute, nearer of kin than cousins.

Any other construction of the statute weuld exclude from its operation all relatives by affinity.

Motion overruled.


author: Doyle, J.

text:
    Scott v. Trustees of Marion Township.
    1. Property was devised to the trustees of M. township, and their successors perpetually, for the exclusive benefit of the poor of the township, with authority to the trustees to manage the trust “ as they think best for the benefit of said poor.”

      Held : The trustees were thereby authorized to invest the moneys belonging to the trust, in notes or other securities, and such power was not limited, by the act of April 19, 1865, S. & S. 910, to loans upon realestate security.
    2. In an action by such trustees, to recover upon a promissory note, purchased with moneys of and belonging to said trust,- it is no defense, that the township records do not contain the evidence of such purchase or ownership.
    Error to the District Court of Allen county.
    By will admitted to probate in 1858, Philip Beilis devised a farm of 200 acres to the trustees of Marion township, Allen county, naming them and their successors in office perpetually, for the exclusive use and benefit of the poor of said township, authorizing said trustees and their successors to dispose of said farm as they might think best for the benefit of said poor; said trustees to do in all matters as they think best for said poor by renting the farm, or if authorized by vote of the citizens of the township, by selling it. The farm was sold and a fund of about $5,000 realized therefrom, which was loaned out by the trustees, the interest being sufficient for the purposes of the trust.
    In 1875, C. A. Evans, one of the defendants in error, borrowed $370 of this money from the trustees and executed his note therefor. While the note was liekl by the trustees, Evans proposed to exchange therefor a note which lie owned, of which the following is a copy:
    “ $500.00. Detphos, O., March 1, 1875.
    “ On or before June 1st, A. d. 1876, we, or either of us promise to pay to Dr. O. A. Evans, Esq., five hundred dollars, for value received, with 8 per cent, interest until due.
    .Indorsed, “ O. Jettinger,
    “ C. A. Evans.” Clarence W. Scott.”
    The trustees had no formal meeting to consider the transfer or exchange of notes, but each trustee assented to it and authorized the clerk to make the exchange. The old note was delivered up to Evans' and this one, indorsed by Evans, taken in its stead. . There was no record of this transaction upon the township books, beyond the mere entry of the note by the clerk in the list of notes belonging to this fund.
    The action was by the trustees against Scott and Jettinger as makers, and' Evans as indorser, upon the note last mentioned. The answer of Scott and Jettinger admitted the execution of the note, but denied the ownership of plaintiffs. The proof established the facts above recited. No claim was made that the note was paid, or that there was any defense against it in the hands of Evans.
    The action was tried to the court without a jury, and judgment rendered in favor of the defendants. Upon error the district court reversed that judgment, and this proceeding is prosecuted by Scott and Jettinger to procure a reversal of that judgment of reversal. Evans refusing, to join as plaintiff is made defendant in error.

      Mead d¡ Townsend, for plaintiffs in error:
    1. The township could under no circumstances become the owner of the note sued on. It lacked the corporate power. 1 Cooley’s Blackstone, 188, and note 471; Dillon’s Mun. Corp. 75; 2 Bonvier L. Dic. 201, 401; Wilson v. Trustees, 20 Ohio St. 362; 32 Conn. 131; Strauss v. Ins. Co., 5 Ohio St. 60; S. & C. 1565; S. & S. 910; Brice Ultra Vires, 66; Trustees v. Miller, 5 Ohio, 185.
    2. The testimony introduced by the township in support of its action was insufficient in law to entitle it to a judgment against the plaintiffs in error. Rev. Stats. § 4993 ; Steinbeck v. Treasurer, 22 Ohio St. 144; McCortle v. Bates, 29 Ohio St. 419; S. & C. 1576, §10 ; Beebe v. Scheidt, 13 Ohio St. 406; Ratcliff v. Teters, 27 Ohio St. 66, 74; Reynolds v. Scweinefus, 27 Ohio St. 311; Commissioners v. Chitwood, 8 Ind. 504; Dillon’s Mun. Corp. §§ 258, 259 ; Commonwealth v. Wilder, 6 Cinn. Law Bulletin, 377; Allegheny Work House v. Moore, 22 Albany L. J. 518.

      T. E. Cunningham, B. J. Broiherton and John F. Br'otherton, for the township trustees.

      MacKenzie <£ Robb, for C. A. Evans:
   Doyle, J.

It is insisted, in support of the judgment of the court of common pleas, first, that the trustees could not, under any circumstances, become the owners of the note sued upon, and second, if they could, the only way such ownership can be proved, is by the records of the township.

We are referred to the act of March 14, 1853 (S. & C. 1565), as amended April 13, 1865 (S. & S. 910), which, it is claimed, conferred upon the township, the only power it had to sue and be sued, as well as to accept the devise in question, and which, it is also insisted, by expressly authorizing such township to receive real estate in payment of, or security for debts due it, withheld from it the power to receive anything but real estate security.

The statute referred to, whether that construction is correct or not, has no application to the case at bar. The devise in the will of Beilis, was not to the township, nor to any of the uses named in said act. It was a devise to the trustees for the exclusive use of the poor of the township, creating a charitable trust to be administered by said trustees. The statute authorizing said devise, if it needed the authority of statute, has been in force in substantially the same form, since 1789. See S. & C. 926, § lé; R. S. § 20; Urm,ey'’s Executors v. Wooden, 1 Ohio St. 165. The testator had the power to devise the property to the poor of the township, in which case the statute provided the trustees, or to make such devise to trustees for the benefit of such poor. In either case granting such discretion and power, in the management of the trust, to whoever the trustees might be, as he saw fit.

By the will of Beilis, the trustees are given full power to manage the trust fund, “as they think best for the ben fit of said poor.” They may invest it upon real estate security, or in notes or bonds without such security, being resposible for good faith and prudent management.

Having the power to purchase the note and maintain an action upon it, the rules of evidence, under the issue presented, are the same as in other cases on a like cause of action. The proof was that the trustees bought the note, which was in their possession regularly indorsed by the payee, and that it belonged to, the trust fund. The payee was a ]3arty to the action and admitted the title of the plaintiffs therein. It was not essential to their right to recover that there should be a record, in the township books, of the transaction. It would be a prudent course for the trustees, and indeed their duty, to keep accurate accounts of all their dealings with this fund, but their failure to enter the same in the township records does not furnish the defense sought to be made here, even a technical support.

Judgment affirmed.


author: Upson, J.

text:
    Bates v. Railroad Co.
    1. The third clause of section 639 of the Revised Statutes of the United States is not repealed by the Act of Congress of March 3, 1875, entitled, “An act to determine the' jurisdiction of circuit courts'of the United States, and to regulate the removal of causes from state courts, and for other purposes.”
    2. A petition, in accordance with that clause of section 639, for the removal of a suit to the circuit court, on the ground of prejudice and local influence, may be filed at any time before the trial or final hearing in the state court.
    8. The objection that no evidence is given that the sureties on the bond filed with the petition are good and sufficient, is waived if not made at the time of the application for removal.
    4. Where the condition of the bond which is offered does not provide for the payment of all costs that may be awarded by the circuit court, if said court shall hold that the suit was wrongfully or improperly removed thereto, the bond is insufficient, and the petition for removal is properly refused. ,
    Error to the District Court of Licking county.
    On June 29, 1875, the plaintiff, George Bates, brought suit in the court of common pleas of Licking county against the defendant, The Baltimore and Ohio Railroad Company, to recover damages for personal injui-ies sustained by reason of the negligence of a servant of the defendant.
    To the plaintiff’s petition, the defendant on September 20, 1875, filed a general demurrer, which was sustained by the court at its September term 1876. At its February term 1877, no amendment to the petition having been made, the court dismissed the action, and rendered judgment in favor of the defendant. To reverse this judgment, the defendant, on April 13, 1877, filed his petition in error in the district court of Licking county,' by which court, at its June .term 1877, the judgment was reversed, and the cause remanded to the court of common pleas.
    Before any further proceedings were had in the court of common pleas, and on December 1, 1877, the defendant filed therein a petition for the removal of the suit into the circuit court of the United States for the Southern District of Ohio, in pursuance of the provisions of the Act of Congress approved. June 22, 1874, Revised Statutes of the United States, section 639. ..The petition set forth that the plaintiff was a citizen of Ohio, and the defendant a citizen of Maryland; that there was a controversy, in the action, between a citizen of Ohio and a citizen of Maryland; that the amount claimed was five thousand dollars; that the suit had not been finally tried, but was then pending for trial in the court of common pleas ; that the petitioner had made and filed therewith the affidavit required by said Act of Congress and said section thereof; that the petitioner was ready and willing to give such good and sufficient security, as the court might direct, for petitioner’s doing all acts and things required to be done by the provisions of law upon the removal of a suit into the United States court; and that the petitioner offered therewith -its bond executed by it underwits corporate seal, and by Walter C. Quincy and Charles II. Kibler as sureties, conditioned as statéd in the petition. The prayer of the petition was that the bond might be accepted as good and sufficient surety according to the provisions of law; that the suit might be removed into the next circuit court of the United States to be hold in the Southern District of Ohio and that no further proceedings might be had in the case. The affidavit referred to in the petition was the affidavit of John W. Garrett, president of the railroad company, showing the citizenship of the parties, as alleged in the petition, and that he had reason to believe and did believe, that from prejudice and local influence, the defendant in the action would not be able to obtain justice in said court, and therefore made application for removal.
    The condition of the bond referred to in the petition, and filed therewith was in the following words :.
    “Provided, however, and these presents are upon this express condition, that, whereas, the Baltimore and Ohio Railroad Company aforesaid, has filed -its petition in the .court of common pleas, of Licking county, Ohio, for the removal into tile next circuit court of the United States, to be held in the southern district ’ of Ohio, in the sixth circuit, of a cause now pending in the said court of common pleas, wherein the said George Bates is plaintiff, and the said Baltimore and Ohio Railroad Company is defendant, pursuant to the provisions of section 639 (chapter 7, title 13) of the Revised Statutes of the . United States, page 113. Now therefore, if the said Baltimore and Ohio Railroad Company shall enter in said circuit court of the United States, for the southern district of Ohio, on .the first day of its next session, copies of all process against the said Baltimore and Ohio Railroad Company, and of all pleadings, depositions, testimony and other proceedings in said cause, then this obligation shall be void, otherwise to be and remain in full force and virtue.”
    On December 22,1877, at the October term, the court upon hearing the petition» found that the defendant had then no right to have said cause removed to the circuit court of the United States, and ordered the application for removal to be, and the same was dismissed, to which the defendant excepted.
    The defendant afterward filed an answer to the plaintiff’s petition, to which the plaintiff filed a reply, and upon'the issues thus made the case was tried, at the January term 1878. The jury returned a verdict for the plaintiff, and the court rendered judgment thereon in his favor.
    The defendant then filed a petition in error in the district court of Licking county, to reverse said judgment, and it was by that court reversed on the ground that the court of common pleas “ erred in overruling and denying the petition and motion of said railroad company, to remove said action for. trial to the circuit court of the United States for the southern district of Ohio.”
    This proceeding is prosecuted to reverse the judgment o£ the district court.

      J. A. Flory and Gibson Atherton, for plaintiff in error :
    1. The petition for removal wa„s-not filed in the state court within the time required by law. The suit was commenced June 29,1875; answer day'was July 31,1875 ; three terms of court passed at which the Case “ could have been tried ” and before it was tried. Ohio Code Civ. Pro. §§ 260, 262, 306, 307, 308, 59, 103; Babbitt v. Clark, 103 U. S. 606. The petition ' for removal was filed too late under the act of Congress of March 3, 1875. Babbitt v. Clark, 103 U. S. 606; United States Statutes of 1874 and 1875, p. 470. The whole of section 639 of Revised Statutes was repealed by the act of March 3, 1875. Burdock v. Hale, U. S. C. Ct. D. of Ind., 1 L. and E. Rep. No. 10-246 ; S. C., 7 Biss. 96; Clippinger's Admr. v. N. V. Ins. Co., 2 Cin. L. Bulletin, 218; Danville R. R. Case, 7 Chi. Leg. News, 241; Chandler v. Coe, 22 Am. Rep.; Smith Com. on Con. Construction, §§ 786, 787; Murdick v. City of Memphis. 20 Wall. 517; United States v. Tyner, 11 Wall. 88; 7 Am. Dec. 99, note; Lorane Plank R. Co. v. Cotton, 12 Ohio St. 263; Babbitt v. Clark, 103 U. S. 612.
    Certainly the provisions of the Act of March 3, requiring the petition for removal to be filed “ before or at the term at which the case could be first tried and before the trial thereof,” is inconsistent with the right to file the petition at a later date. Morse v. Vance, 1 Ohio, 10. The conditions required to be inserted-in the bond for removal by the latter act, are inconsistent with and different from those required in section 639 Revised ■ Statutes. If the act of March 3, did not repeal section 639, which of the conditions-required by both acts should be used ? There are other provisions in the acts so inconsistent as to require a repeal by the latter of the former act. The case was not removable under the 3d paragraph of section 639 Revised Statutes, page 113, even if the court should find that it was not repealed by the acts of March 3, 1875. The petition for removal does not aver that the case has not been tried, while the record shows it has been once finally tried. The Revised Statutes provides that tlie petition for removal should be filed before “ the trial ” of the case. In this case there had been a trial of the case, and a. final trial at that. This change in the Revised Statutes was not made for nothing. The case of insurance Co. v. Dunn, 19 Wall. 214, had already been decided, which it is presumed that Congress had full knowledge of before they enacted the Revised Statutes. “ It is apparent that this change was not the result of accident, but was deliberately made to secure uniformity upon the subject, in view of the conflicting decisions between the Federal and State Courts in the following cases: Ackerly v. Vilas, 1 Abb. U. S. 284, see 24 Wis. 165; Johnson v. Morrell, Woolworth, 390 ; Insurance Co. v. Dunn, 20 Ohio St. 175, and same case, 19 Wall. 214; Bryant v. Rich, 106 Mass. 192.” Whittier v. Hartford Ins. Co., 20 Am. R. 187. This change in the wording of the statutes appears to have been made to get around the construction given to the act of 1867, in 19 Wall.; for if Congress, having full knowledge of that decision, liad intended to follow the act of 1867, they would have worded it the same. The change was apparently made to do away with the injustice resulting from the act of 1867, under the construction given to it by the decision in 19 Wall, as is well illustrated in the case at bar.
    2. The bond and the conditions thereof were not such as was required by the act of March 3,1875. This bond does not contain the provisions that the party removing shall enter in the circuit court “ a copy of the record,” and “ pay all costs that may be awarded by said circuit court, if said court shall hold that said suit was wrongfully or improperly removed thereto.” The bond not containing the conditions, the removal was properly refused. Burdict v. Hale, U. S. Court of Indiana, 1 Law and Equity Reporter, No. 10, p. 246; s. c., 8 Ch. L. N. 192. Even if the third paragraph of section 639 of Revised Statues was not repealed by the act of March 3, 1875, that part of the 639th section relating to the bond is distinct from paragraph 3, as it refers to the other paragraphs also, and the conditions of the bond required by the act of March 3, 1875, being different and inconsistent with the conditions required to be in the bond under the Revised Statutes, repeals the latter; so that, if a removal can be made under the Revised Statutes, the conditions of the bond must bo those, required by the act of March 3, 1875. 20 Am. Law Reg. 38; Torrey v. Locomotive Worlis, 14 Black. C. C. 269.
    3. There was no evidence given to the court to show that the sureties on the bond were sufficient or responsible sureties.

      Charles H. Ilibler, for defendant in error. .
    1. There is no objection to the petition or affidavit for removal. They followed the third clause of section 639 U. S. Bevised Statutes of 1875. The act of March 3,1875, does not repeal the third clause above mentioned for these reasons, viz.: In the Bevised Statutes of the United States, second edition, 1878, published under authority of another act of Congress, the third clause is reproduced, without any new legislation on the subject. The act of March 3, 1875, does not relate in any part to the case of prejudice or local influence. The latter act does not purport to repeal section 639, in the third clause of it. The language is, “ Sec. 10. That all acts and parts of acts in conflict with the provisions of this act aré hereby repealed.” The third clause of section 639 is not in conflict with the provisions of the act of March 3, 1875. The latter act docs not provide that no controversy is removable other than those specified in the second section, but that certain controversies, therein specified, may bo removed. Barber v. Railway Co., 43 Iowa, 223; Stone v. Sargent, 129 Mass. 503 ; Dillon on Removal, 28 ; Dennis v. City, &c., 3 Woods, 684; Arapahoe County v. Kansas P. Ry. Co., 4 Dill. 277; New Jersey Zinc Co. v. Trotter, 17 Amer. Law Reg. 376.
    2. It is also claimed by plaintiff in error that if clause 3 of section 639 is not repealed by the act of March 3,1875, the application, to remove was not in time. This claim is clearly erroneous. The act of July 27, 1£>66, used the words “trial or final hearing. ” The act of March 2, 1867, employed the words “ final hearing or trial, ” while in the revised statutes, clause 3 of section 639, the words are again “trial or final hearing. ” There would not, therefore, seem to be any design, as claimed, in the transposition of the words in section 639. We might safely adopt the language of this court, in Insurance Co. v. Dunn, 20 Ohio St. 175, 181, which says, “We have no doubt the terms ‘ trial ’ and ‘ final hearing ’ have the same meaning in both acts [1866 and 1867,] and that their transposition in the amendatory act was merely accidental. ” It is said that there. was a trial in the common pleas before the removal papers were filed. There was a demurrer to the petition which was sustained. The plaintiff excepted and took leave to amend, and the cause was continued. At the next term, the plaintiff not desiring to amend, there was judgment for the railroad company on the demurrer. The district court in June, 1877, reversed the judgment of the common pleas, and. remanded the case for further proceedings according to the law. There was no final trial. It was only a preparation for a trial. Vannevar v. Bryant, 12 Wallace, 41, 43 ; Ins. Co. v. Dunn, 19 Wall. 214; Jifkins v. Sweetzer, 102 U. S. 177.
    3. The bond is ¡jrecisely that which section 639 required ; but it is insisted that though it be true that that section allowing the removal of cases of prejudice, &c., is not repealed, the method of procuring the removal, so far at least as the form of the bond is concerned, is that of the act of March 3, 1875. The reasoning therefore is, -that section 639 may be in force for the principal purpose, but is not in force for the method of accomplishing that purpose. There is no such rule of construction. If the bond was defective in form it was amendable. The common pleas, if objection to the form was made, did not regard the objection valid; at least it did not put its decision on that ground. Shall the technical objection now prevail, even if valid % It has been held, that a case of prejudice will not be remanded to the state court on such ground. Dennis v. Alachua, Co., 3 Woods, C. C. 683; 10. Otto, 459, 471.
    4. The objection that no evidence was given that the sureties to the bond were sufficient, was waived.
   Upson, J.

The plaintiff claims that the court of common pleas properly overruled and denied the defendant’s petition for the removal of the suit to the circuit court of the United States, upon the following grounds:

1st. That the petition was not filed in the state court within the time required by law.
2d. That no testimony was given in that court to show that the sureties offered were good and sufficient; and
3d. That the condition of the bond filed with the petition is not in accordance with the law.

' In order to determine whether these objections to the removal of the suit are well founded, it is necessary to examine the Acts of Congress which provide for the removal of causes from the state courts. Section 639 of the Revised Statutes of the United States, in its first clause, provides that a suit against an alien, or by a citizen of the state wherein it is brought, against a citizen of another state, may be removed on petition of the defendant, filed at the time of entering his appearance in the state court.

In its second clause said section provides that when a suit is against an alien and a citizen of the state wherein it is brought, or is by a citizen of such state against a citizen of the same and a citizen of another state, it may be so removed, as against said alien or citizen of another state, upon the petition of such defendant, filed at any time before the trial or final hearing of the cause, if so far as it relates to him, it is brought for the purpose of restraining, or enjoining him, or is a suit in which there can be a final determination of the controversy, so far as concerns him, without the presence of the other defendants as parties in the cause.

The third clause of said section is as follows: “When a suit is between a citizen of the state in which it is brought, and a citizen of another state, it may be so removed on the petition of the latter, whether he be plaintiff or defendant, filed at any time before the trial or final hearing of the suit, if before or at the time of filing said petition ho makes and files in said state court an affidavit stating that he has reason to believe, and does believe, that from prejudice or local influence he will not be able to obtain justice in such state court. ”

Section 639 then provides as follows: “In order to such removal the petitioner in the cases aforesaid must, at the time of filing his petition therefor, offer in said state court, good and sufficient surety for his entering in such circuit court, on the first day of its session, copies of said process against him, and of all pleadings, depositions, testimony and other proceedings in the cause, or, in said cases where a citizen of the state in which the suit is brought is a defendant, copies of all process, pleadings, depositions, testimony and other proceedings in the cause concerning, or affecting the petitioner, and also for his there appearing and entering special bail in the cause, if special bail was originally requisite therein. ”

In 1875 Congress passed the act entitled, “ An act to determine the jurisdiction of the circuit courts of the United States, and to regulate the removal of causes from state courts, and for other purposes. ” United States Statutes at Large, vol. 18, p. 470. This act does not specifically repeal any previous act, but has the general provision, That all acts, and parts of acts, in conflict with thp provisions of this act, are hereby repealed,” and the plaintiff insists that the third clause of section 639 is thereby repealed, and that the suit could only be removed on a petition filed in the state court, before, or at, the term at which said cause could be first tried, and before the trial thereof, ” as provided in the act of 1875. This act was intended by Congi-ess as a revision of many previous acts upon the same subject, and there has been much difference of opinion in the federal courts as to the extent to which it is a substitute for those acts or parts thereof; but its effect in relation to the first, second, and third clauses of section 639 has been conclusively determined by the supreme' court of the United States. In the case of King v. Cornell, 106 U. S. 395, it was decided that the first and second clauses of that section were in conflict with the act of 1875, and were therefore repealed. In the case of the American Bible Society v. Grove, 101 U. S. 610, it was held that the" act of 1875 has not changed the third clause of section 639, and that removals on account of “ prejudice or local influence ” still depend on that section. The provision that a petition for removal on that ground may bo filed at any time before the trial or final hearing of the cause, must therefore be regarded as still in force, and in this case the petition was filed before the final trial.

In reference to the objection to the acceptance of the bond for the reason that no evidence was given that the sureties thereon were good and sufficient,, it is enough to say that the decisions are nearly, if not quite, uniform, that this objection is waived if not made in the state court, at the time of the application for removal. It does not appear that the plaintiff required such proof, and. we hold that the action of the court of common pleas could not be sustained on that ground.

The most serious question in the case is in reference to the bond offered by the defendant. The petition expressly states that the application for removal is made in pursuance of the provisions of section 039, and upon examining the bond filed with the petition it will be found that its condition is in accordance with the requirements of that section, but is substantially different from that required by the act of 1875, in several important particulars, but especially in omitting, the provision “ for paying all costs that may be awarded by the said circuit court, if said court shall hold that such suit was wrongfully, or improperly, removed thereto.” It is insisted by the defendant that in a ease in which the petition for removal is in accordance with the provisions of section 639, the case is also to be governed by the provisions of that section in reference to the security required. The plaintiff claims that the provisions of the act of 1875, so far as they relate to the bond to be given by the petitioner, are substituted for the requirements of section 639, and are to be observed in all cases of removal under that section.

The proper construction of the act of 1875, in this respect, is by no means free from doubt, but no reason is apparent for requiring security for the payment of costs in cases removed under the last act, and not in those removed under the former; and upon considering the different provisions of the two statutes, upon this subject, wo are led to the conclusion that, in regard to the bond required, the act of 1875 was intended as a substitute for, and repeals, that part of section 639 which provides for the security to be given by the petitioner. This point has not been decided, so far as we are aware, by the Supreme Court of the United States, but has been determined by circuit courts in a number of cases. In the case of McMundy v. Connecticut General Life Insurance Compaña/, 9 Chicago Legal News 324, Judges McKennan and Cadwalader held that the act of 1875 takes the place of all former acts in the requirements which it makes for the removal of all causes to which it is applicable; that even though a removal is sought under the third clause of section 639 of the Revised Statutes, the requirement of section 3 of the act of 1875, in regard to the nature of the bond, extends to such a case, as being a case mentioned in section 2 of that act, which to that extent,, at least repeals all prior acts on that subject. This case was approved in the case of Torrey v. Grant Locomotive Works, 14 Blatchford Rep. 269, in which Judge Blatchford held that even if the petitioner claimed the benefit of the longer time allowed by section 639, he must give the bond prescribed by the act of 1875, and that the bond filed in' that case was insufficient because it contained no provision for. costs. This point was also decided in the same way, in the case of Webber v. Bishop, 13 Federal Reporter, 49, in the circuit court of the northern district of New York.

No case has been cited in which a contrary decision has been made.

If then it is considered that the bond in this case is not in accordance with law, we are next to consider whether, for that reason, the state court was justified in refusing to accept it, and thereupon proceeding to trial and final judgment. Upon this point we are satisfied that the action of the court of common pleas is sustained by the decided weight of authority, as well as the general principles of law. A reasonable regard for the rights of the opposite party requires of the petitioner a substantial compliance with the condition imposed by the act of Congress, before he avails himself of the privileges which it confers. This point has also frequently been the subject of judicial decision. In the case - of Torrey v. Grant Locomotive Works, supra, it was held that where the bond contained no provisions for costs the suit was not properly removed. In the case of McMundy v. Connecticut General Life Insurance Company, supra, it was held that the filing of the bond conditioned as required by the act of 1875, is a condition precedent to the removal of the cause to the federal court, and that if the required bon'd has not been filed, that court has no jurisdiction.

In the case of Burdick v. Hale, in the circuit court for the District of Indiana, 7 Bissell, 96, although the state court had accepted the bond, and ordered that no further steps be. taken in the cause in that court, Judge Gresham held, on a motion to remand the case, that, as the bond contained no provision for the payment of costs, the surety would be liable for no costs if the suit should be sent back to the state court j that the defects in the bond could not be cured by amendment in the circuit court; that the federal courts have no power to dispense with, modify or change any of the provisions of the statutes authorizing the removal of causes from one jurisdiction to the other, and that the jurisdiction of the state court over a controversy rightfully in its possession, as in that case, could not be dislodged except by'fully complying with the requirements of the act of Congress.

Other decisions to the same effect might he cited. We are of opinion that the court of common pleas would not have been justified in accepting the bond offered by the defendant.

Judgment of the district court reversed, and that of the court of common fleas affirmed.


author: By tub Coget.

text:
    Butler v. Commissioners.
    Under sec. 1038, R. S. the power granted to the auditor and commissioners in addition to that conferred by the act of January 16, 1873 (70 Ohio L. 10) as construed in State r. Commissioners, 31 Ohio St. 271, is limited to cases where property exempt from taxation has been charged with taxes, and does not extend to cases where taxes have been paid upon property subject to taxation, but returned in the wrong county.
    Motion fo'r leave to file petition in error to the district court of Hamilton county.
    In 1873 Joseph C. Butler died, testate, in Hamilton county. Executors were appointed, qualified and continued in office until 1879, when plaintiff was appointed administrator de lonis non with the will annexed. In 1880 plaintiff was notified by an employé of the auditor of the county, that the executors bad failed, for the five preceding years, to return the bonds and money belonging to the estate for taxation, and that the auditor had charged said estate with $13,848, the tax upon said bonds and money for tlie period aforesaid. Being pressed for payment and threatened with a penalty, lie paid to the treasurer of the county the amount so charged against the estate, and “afterward learned, that the executors during the period aforesaid, resided out of Hamilton county and were not bound to return said property for taxation in said county.” He therefore applied to the auditorio refund the amount, was referred to the commissioners where he filed his application for repayment; the commissioners deciding against him, he appealed to the court of common pleas. In that court he filed a petition setting forth the above facts, to which a demurrer was sustained. The district court affirmed the judgment of the court of common pleas, and he now files a motion for leave to file a petition in error in this court, to reverse the judgment of the district court.

      Mallon <& Ooffey, for the motion.

      O. J. Cosgrave, contra.
   By tub Coget.

In State v. Commissioners, 31 Ohio St. 271, an effort was made to require the commissioners to order the auditor to draw his warrant in favor of the relators, for taxes paid by them upon property, which, as a pure public charity, was exempt from taxation. This court then held, that the statute of 1873, providing for the correction of errors by the auditor and commissioners (70 Ohio L. 10, 11), did not authorize the commissioners to make such order, except where the error was clerical merely, and did not cover a case of taxes paid upon exempt property.

The act referred to was changed in the Revised Statutes, § 1038, by adding the words “ or when property exempt from taxation has been charged with tax, or in the amount of such taxes or assessments.”

The claim of plaintiff is not that the property of the estate was exempt from taxation, but that the executors, not residing in Hamilton county, were not compelled to return it for taxation in that county. The change in the statute was for the purpose of enabling the commissioners to order the repayment of taxes, erroneously collected upon property embraced in sec. 2732, R. S. and similar provisions, as exempt from taxation, and does not cover a case like the one at bar, where the property is subject to taxation, but returned or charged in the wrong county.

Motion overruled.


text:
    Railway Co. v. Bailey.
    Where an order of the probate court appropriating land for the road-bed of a railroad company is reversed in the court of common pleas, under Rev. Stat. §§ 0437, 0438, the court retaining “ the cause for trial and final judgment as in other cases,” error will not lie to such judgment of reversal.
    Motion for leave to file petition in error.

      Hutchins, Evans c& Dawson, in support of the motion.
    The district court had jurisdiction to reverse the judgment of the court of common pleas, and the cases relating to reversal of the judgment of a justice of the peace have no application. Rev. Stats. §§ 6437, 6438 ; Reed v. De Wolf, Wright, 418; Herf v. Shulz, 10 Ohio, 263 ; Kelley v. Hunter, 12 Ohio, 219; 3 Chase, 1687, 1750; Swan’s C. S. 67S; Rev. Stat. § 6707, 6709; Swan’s C. S. 516 ; Rev. Stat. § 6733 ; Railroad Co. v. Sloan, 31 Ohio St. 1; Watson v. Sullivan, 5 Ohio St. 42; King v. King, 38 Ohio St. 370; Neil v. Neil, 38 Ohio St. 558 ; Rev. Stat. § 6726; Schaeffer v. Marianthal, 17 Ohio St. 183; Craig v. Chambers, 17 Ohio St. 253; Hammond v. Hammond, 21 Ohio St. 620; Dean v. King, 2 Ohio St. 134; Woolen Mills v. Titus, 35 Ohio St. 258; Texas B. Ass. v. Aurora Ins. Co., 34 Ohio St. 291; Collins v. Davis, 33 Ohio St. 567; Andrew v. Youngstown, 35 Ohio St. 268; Rev. Stat. § 6710, amended 80 Ohio L. 169 ; Code of 1853, § 512.

      Harper c&. Richards, contra.
    Cited and relied on the same cases and statutory permission, and also relied on the folloiving : Bridwell v. Barcroft, 4 W. L. Mo. 617, 622; Holbrook v. Connelly, Hobbs v. Beckwith, Longworth v. Sturges, 6 Ohio St. 199, 252, 143; Const, art. 13, § 5 ; Yeoman v. Zasley, 36 Ohio St. 416.
   Okey, J.

By proceedings in the probate court of Scioto county, commenced in September, 1882, under Rev. Stat. §§ 6414-6453, the Cincinnati and Eastern Eailway Co., an Ohio corporation, condemned lands of O. W. Bailey, in that county, for its road-bed, paid into court $2000, the condemnation money, and took and still holds possession of the property. On petition in error by Bailey, the court of common pleas reversed the judgment, so far as it may be reversed in view of the rule stated in Wagner v. Railway Co., 38 Ohio St. 32. To reverse the judgment of reversal, the company prosecuted error in the district court; but that court dismissed the petition for want of jurisdiction, and the company now asks leave to file in this court a petition in error to reverse the order of dismissal.

The district court did not err. The appellate jurisdiction of the court of this state is statutory. The district court has power to reverse judgments and final orders (Eev. Stat. §§ 6707, 6709), but there had been ho such adjudication in the common pleas as afforded ground for a proceeding in error to that court. The common pleas was vested with power to reverse the judgment or order of the probate court (Rev. Stat. § 6437), but was required on reversal “to retain the cause for trial and final judgment, as in other cases,” and, moreover, such trial must be had at the term of reversal, unless for good cause a continuance is granted. Rev. Stat. § 6438. Consequently, the rule in case of reversal of the judgment of a justice of the peace applied, and not the rule where the district court reverses the judgment of the court of common pleas and remands the cause for a new trial. This distinction is stated in Schaeffer v. Marienthal, 17 Ohio St. 183, which was of the latter class. Even the rule asserted in that case has been changed (80 Ohio L. 169), so that the statutory provisions are now harmonious in denying the right to review a judgment of reversal, where the cause is again for hearing on the merits. Lewis v. Eustler, 4 Ohio St. 354, was under a different statute, and the objection which prevails in this case was not presented or considered in that case.

Motion overruled.